The Issue The issue is whether Respondent should grant Petitioner’s application for an annual license to operate a child day care center in Naples, Florida.
Findings Of Fact With headquarters in Boca Raton, Petitioner is a corporation owning, operating, and franchising child day care centers in 25 states, including Florida, and Canada and Indonesia. Petitioner owns and operates 70 centers and franchises 145 centers. In the eastern United States, Petitioner owns 40 centers and franchises 55 centers from Florida to Massachusetts. This case involves Petitioner’s child care center at 1275 Airport Road South in Naples, Florida (Center). Petitioner has owned and operated the Center since its inception in 1997. The Center occupies 10,000 air-conditioned square feet in a building that was constructed to Petitioner’s specifications. With a licensed capacity of 187 children, the Center has typically operated with an enrollment of 117-119 children. Respondent has licensed the Center as a child day care facility from August 18, 1997, through July 31, 2000. As is customary, Respondent initially issued Petitioner a provisional license, which ran from August 18, 1997, through January 31, 1998. Dissatisfied with aspects of the Center’s operation, Respondent granted Petitioner a second provisional license from February 1, 1998, through July 31, 1998. Prohibited by statute from granting a third consecutive provisional license, Respondent issued Petitioner an annual license from August 1, 1998, through July 31, 1999. At the expiration of that license, still dissatisfied with the Center’s operation, Respondent issued Petitioner provisional licenses for two additional six-month periods, which ended July 31, 2000. When the second provisional license expired on July 31, 2000, Respondent denied Petitioner’s application for an annual license. In its Notice of Denial dated August 16, 2000, Respondent based the denial on repeated violations by the Center in five major areas: staff-to-child ratios, direct supervision, background screening and personnel records, health-related requirements, and incident reporting. The Notice of Denial reports that Respondent’s inspectors have made 49 official visits to the Center during its three-year history and have repeatedly identified numerous deficiencies. In this case, Petitioner challenges Respondent’s denial of Petitioner’s application for an annual license starting August 1, 2000. Petitioner candidly admits to a “rocky” past in operating the Center. However, Petitioner claims that it has progressed significantly toward satisfactory operations from October 1999 through July 31, 2000, which is, by stipulation, the closing date for analysis in this case. Respondent counters this claim by noting repeated violations at the Center, even after Petitioner assigned a corporate general manager to oversee daily operations at the Center. Respondent contends that Petitioner has demonstrated its unsuitability to continue to operate the Center. For two reasons, the most relevant facts in this case arise after January 31, 2000. First, Respondent last issued a license for the Center starting February 1, 2000, which means that the deficiencies before February 1 did not preclude licensing. Prior operations of the Center remain relevant, as they assist in assessing Petitioner’s willingness or ability to operate the day care facility in compliance with the law. However, the deficiencies arising after February 1 are of greater relevance because Respondent has not issued a license in reliance upon, or despite of, these facts. Second, aware that the Center’s recurring problems were jeopardizing its ability to retain a license, in December 1999, Petitioner hired a former consultant as its vice- president of operations for the eastern region. The new vice- president replaced the individual who, previously responsible for Florida operations, had been unable to correct all of the problems at the Center. The new vice-president hired Jamilet Melendez in January 2000 as the new general manager for the Florida region. Ms. Melendez holds an Associate of Arts degree and is working on a bachelor’s degree at Florida International University. Prior to becoming a general manager, Ms. Melendez had been employed by Petitioner for six months as the director of a center in Plantation, Florida. Previously, Ms. Melendez had been employed by Toddler Tech, starting as a teacher’s aide and working her way to a center director. As a general manager, Ms. Melendez is responsible for overseeing finances, quality, and operations of the seven Tutor Time schools in central and south Florida. On the instructions of the vice-president, Ms. Melendez devoted nearly all of her time to the Center from mid-January to mid- March, after which time she spent about half of her time at the Center. From mid-January to mid-March, Ms. Melendez visited the Center daily; after mid-March, she visited the Center three times weekly. Thus, the deficiencies arising after February 1, by which time Petitioner had assigned these additional corporate resources to assist the operation of the Center, are especially relevant in determining whether Petitioner is able to correct the Center’s problems. By letter to Respondent dated February 25, 1998, a parent complained about excessive staff turnover; the failure to conform to posted schedules; unsupervised children going to the restroom or playing on the playground, one staff person shouting at several children; several bites, lacerations, and a swollen lump on the head sustained by her two children at the Center; and the absence of ensuing incident reports. Responding to the complaint, on February 27, 1998, Respondent conducted an inspection. The inspector found that Petitioner lacked documentation that Gloria Badillo, Lisa Colgan, Alma del Rio, Tamara Griffin, Tina Ortegon, and Mirella Roman had completed 30 hours of the required training; Yermi Torres and Brianne Torres had obtained a tuberculosis test; Yermi Torres had completed her local law enforcement screening and affidavit of good moral character; Brianne Torres had completed her local law enforcement screening and her employment history; and Fran Starr had completed her local law enforcement screening. Ms. Starr became the director of the Center by March 2, 1998. Ms. Starr prepared a Plan of Correction dated March 2, 1998. As for personnel files, Ms. Starr sent all employees a memorandum warning that they risked termination if their files were not current by March 7. In response to a note on the inspection form, Ms. Starr also sent a second memorandum requesting all employees to submit copies of their certificates documenting training in First Aid and cardiopulmonary resuscitation. However, in a separate note, Ms. Starr stated that some of the citations for staff training were inaccurate because some employees were recent hires who could still timely obtain the required training, one employee had left the employment of the Center, and the local vocational center that had trained some employees had not yet provided them with certificates. In the Plan of Correction, Ms. Starr also stated that she had advised all staff persons by memorandum that they must be able to see all the children whom they were supervising. She added that the general manager and director would continue to conduct 15-minute counts to monitor staffing ratios and supervision. As stated in the Conclusions of Law, an employee has five days after her date of hire to submit her fingerprints to the employer, which has five days to submit the data for background screening; a new employee has 90 days after her date of hire to commence 40 hours of required training (consisting of variably stated components of 30, 20, or 10 hours) and one year after the date of commencement to complete the training; a new employee has 10 days after her date of hire to submit the results of a tuberculosis test; and a child has 30 days after enrollment to submit documentation of a physical examination and immunizations. No statutes or rules provide any grace periods for the other background screening, personnel, enrollment, and health requirements. The record does not establish the dates of hire of the six employees who had not completed 30 hours of the required training or the two employees who had not obtained their tuberculosis tests, so Respondent has not proved these deficiencies. The record does not establish the dates of hire of the three employees missing additional information, so Respondent has not proved the deficiencies concerning background screening. There are no grace periods for the affidavits of good moral character and employment histories, so Respondent has proved these two deficiencies. On March 6, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios, but found deficiencies in supervision, apparently because three teachers reported to the inspector a different number of children under their supervision than were in their respective classrooms. The inspector also found a deficiency in recording classroom attendance. Respondent has proved these deficiencies in supervision and attendance recordkeeping. It is impossible for a staff person to discharge her supervision duties without knowing the number of children for whom she is responsible. Careful recordkeeping of arrival and departure times for each child is essential to determine from the records whether a facility was on-ratio at various points in time. A note on the March 6 inspection report states that, during nap time, the required minimum staffing ratios may be relaxed, if sufficient staff are onsite to maintain the required ratio. Reportedly, the Center director had allowed staff to leave the site during nap time. The inspector suggested that the Center employ a floater, who would help supervise the children during nap time and outside play. On April 14, 1998, Respondent received an anonymous complaint that the complainant and several other parents of children attending the Center had complained vainly to management of deficiencies in staffing ratios and supervision. The anonymous complainant also cited insufficiently supervised older children hurting younger children in the same classrooms, excessive staff turnover, and an injury to the complainant’s child that required four stitches in his chin. Responding to the complaint, on April 14, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found deficiencies for failing to follow planned activities in the transitional toddler room, label supplies, clean up “a few cups (plastic) and plastic bag” littering the outdoor play area, and clean up a previously cleaned pink house on the playground that had become muddy and dirty. Respondent has proved the deficiencies for failing to follow planned activities and label supplies. The former deficiency can, and in this room probably did, contribute to a lack of structure and misbehavior among the children. The latter deficiency poses a danger to the safety of the children. Respondent has not proved the deficiencies concerning litter and a muddied playhouse. No statute or rule supports the finding of a deficiency on these facts. On April 29, 1998, Respondent received a complaint from a parent who had spoken to a Center employee on the telephone about enrolling her child at the Center. Reportedly, the Center employee had told her that the staffing ratio for one- to two-year-olds was one staff person for eleven children. Responding to the complaint, Respondent conducted an inspection on May 1, 1998, and found no deficiencies in staffing ratios or supervision. On June 4, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found deficiencies in failing to follow one of two schedules posted in a classroom, clean up tissue and a plastic wrap on the playground, maintain food trays at a safe distance from the diapering area, replace bean bags with holes, maintain a medical card for several medicine containers kept onsite, and maintain daily attendance records. The inspector found that Petitioner lacked documentation that “Alma”--presumably, Alma del Rio--had completed 20 hours of the required training, “Anne” had completed 30 hours of the required training, and “Brianne”-- presumably, Brianne Torres--had enrolled in 30 hours of the required training. The inspector found that Petitioner lacked documentation that “Emily” and “Christine” had obtained tuberculosis tests. The inspector found that Petitioner lacked documentation that “Brianne”--again, presumably Brianne Torres--had completed her local law enforcement screening and that Respondent needed to resubmit her fingerprints, “if necessary.” The inspector found that Petitioner lacked documentation that more than two of its employees had obtained Child Development Associate (CDA) certificates, despite the fact that 98 children attended the Center. Respondent has proved the deficiencies in following posted schedules, maintaining the required numbers of staff persons with CDA certificates, and maintaining food trays, medical cards, and attendance records, but not in maintaining the playground or equipment. Absent proof of hire dates, Respondent has not proved the deficiencies in tuberculosis testing of “Emily” and “Christine,” who were not named previously in prior inspection reports as employees. Absent proof of hire dates, Respondent has not proved the deficiencies in the 30 hours of required training for Ms. del Rio or “Anne.” However, the deficiency noted for Ms. Brianne Torres was that she had not enrolled-- i.e., begun--her required training. Although the record does not establish her hire date, Ms. Brianne Torres was employed at the Center on February 27, 1998, and it is a reasonable inference that she remained continuously employed through the date of this inspection on June 4, 1998, which is over 90 days from her date of hire. Thus, Respondent proved a deficiency in the training of Ms. Brianne Torres. Respondent also proved a deficiency in the local law enforcement screening for Ms. Brianne Torres, who had been cited in the February 27 report for the same deficiency. On June 22, 1998, Respondent received another complaint from a parent about staffing ratios, staff turnover, and maintenance and supervision in the toddler room. The complaint was that unremoved garbage bags with fecal material had remained all weekend in the room and children were unsupervised while staff cleaned up the room. Responding to the complaint, Respondent conducted an inspection on June 23, 1998, and found no deficiencies in staffing ratios, supervision, or sanitation. The inspector found deficiencies in failing to post a plan of activities in one classroom, repair or replace a couch with tears, and record daily attendance in four classrooms. Respondent has proved all of these deficiencies, except the failure to repair or replace a couch with tears in it. On July 7, 1998, Respondent conducted an inspection and found no deficiency in staffing ratios, but found a deficiency in supervision in the toddler room. Due to the unusual configuration of the room, a single teacher could not see children throughout the room. Taking advantage of the situation, several children were misbehaving, and the classroom had become disorderly. Respondent has proved this deficiency in supervision. The inspector found deficiencies in failing to follow a posted schedule (a substitute teacher was showing a movie when the schedule called for academic work), repair two holes in walls from doors hitting them in one room (they were under repair at the time of the inspection), clear an exit area that was blocked by a sleeping mat that had been left adjacent to a hallway door, maintain napkins at a safe distance from the diapering area, repair or remove bean bags and “a yellow triangle” that had tears, remove food from the counter, label bottles, and record attendance accurately in two classrooms. Respondent has proved the deficiencies that Petitioner failed to follow a posted schedule, maintain napkins safely, remove food from the counter, label bottles, and record classroom attendance, but failed to prove the deficiencies for repairing the door that was under repair, clearing an exit blocked by a sleeping map, and repairing or removing equipment with tears. The inspector also found that Petitioner lacked documentation of physicians’ information and enrollment forms for W. B. and A. E., current immunizations for V. B. and R. B., and a completed immunization card for W. B. Absent evidence of enrollment dates or, as to the last cited deficiency, the omitted information, Respondent has not proved these deficiencies concerning immunizations. However, the physician’s information is required of each child prior to enrollment, so Respondent has proved the deficiency as to physicians’ information and enrollment forms for two children. Nine days prior to the expiration of the second provisional license on July 31, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. The inspector found a deficiency in failing to repair a new hole caused by another door banging into a wall (again, under repair at the time of the inspection). Respondent has failed to prove this deficiency. The inspector found that Petitioner lacked documentation that Hannah Hogan (who was not present at the time of the inspection and worked only as a substitute), Alixia Mia, Danielle Mains, and Beverly Hall had obtained tuberculosis tests; Tracy Tingley, Lera Sammons, and Paula Jones had filed affidavits of good moral character and statements acknowledging their duty to report child abuse; “Hannah”--presumably, Hannah Hogan--had had her fingerprints submitted; V. B. [same as V. B. mentioned in the July 7 inspection report] and M. V. had current immunizations; and W. B. [same as W. B. mentioned in the July 7 inspection report] and A. E. [same as A. E. mentioned in the July 7 inspection report] had physicians’ information. Absent hire dates, Respondent has not proved deficiencies concerning tuberculosis tests or submittal of fingerprints. However, Respondent has proved the deficiencies that three employees lacked affidavits and abuse-reporting acknowledgements. Respondent has not proved either of the deficiencies concerning immunizations because of the absence of an enrollment date for M. V. and the absence of an intervening 30 days since V. B. had been first mentioned in an inspection report. Respondent has proved the deficiencies concerning the physicians’ information for the two children. On July 29, 1998, Respondent received a complaint from a parent that the one-year-old class was off-ratio. Responding to the complaint, Respondent conducted an inspection the next day and found that the two-year-old class had one staff person for 12 children, which is one over the minimum allowable ratio. The notes state that the second teacher, who was 15 minutes late to work, arrived 15 minutes after the twelfth child. Because the two-year-old classroom is in the room with the unusual configuration, the inspector found a separate supervision deficiency for this 15-minute lapse. The inspector found that the one-year-old class was in-ratio on the day of the inspection, but had been off-ratio the prior day when one of the two teachers had had to leave the one-year classroom “momentarily” to retrieve snacks because the cook had been absent due to illness. The Center director reported that several teachers and children had had the flu. Staffing ratios are more flexible than supervision, as is evidenced by the nap time rule that allows off-ratio staffing during nap time, as long as supervision is maintained and the staff persons required to meet ratio are on the same floor of the building and readily available if summoned. For this reason and the absence of evidence that the tardy employee was chronically late or of managerial status, Respondent has not proved that a 15-minute lapse in staffing, which left a teacher with one two-year-old too many, constitutes a deficiency. Supervision is less flexible. Respondent has proved the requirement that two staff persons must be present in the oddly configured room, when any part of the entire room is accessible to children. Respondent had already cited Petitioner in the July 7 inspection for not keeping at least two staff persons in this room. Although normally even small departures from supervision constitute a deficiency, however, this deficiency would be based on the fact that one staff person could not see every corner of a single room for 15 minutes. Petitioner could not rely on a single staff person supervising this room for a significant period of time, but Respondent has failed to prove that the 15-minute lapse, with a teacher still in the same room, constitutes a deficiency in supervision. Likewise, Respondent has failed to prove that the “momentary” departure of one staff person, required to maintain staffing ratios, to go get snacks constitutes a staffing ratio deficiency, at least where, as here, flu had short-staffed the Center, which was missing its cook, who normally delivered the snacks. On August 13, 1998, Respondent received a complaint from a parent that her one-year-old child had been pushed by another child into a door hinge and had chipped off half of his tooth. The parent also complained that the Center had not completed an incident report. The parent reported that three staff had been in the one-year-old room with 17 children, which met ratio requirements, but that supervision was nonetheless lacking. Responding to the complaint, Respondent conducted an investigation on August 19, 1998, and found no deficiencies. By letter dated August 25, 1998, Respondent informed Petitioner that it intended to impose an administrative fine for the staffing ratio deficiency occurring on July 29, 1998, in the one-year-old room and for the staffing ratio deficiency occurring the next day in the two-year-old room. The letter warns that future deficiencies in staffing ratios may result in fines or the denial or revocation of Petitioner’s license. The letter adds that the configuration of the toddler room precludes direct supervision by one teacher of an entire class. In response to a complaint either unrecorded or recorded illegibly, Respondent conducted an inspection on September 28, 1998. The inspector found staffing ratio deficiencies in the one-year-old classroom where one staff person was supervising eight, rather than the permitted six, children, and the two-year-old classroom where one staff person was supervising 12, rather than the permitted 11, children. However, the inspector reported these deficiencies during nap time, during which, as noted above and discussed in the Conclusions of Law, the staffing ratios are relaxed. The inspector opined that if any children were awake, the nap time exception did not apply; however, the rule refers only to “nap time” and not whether, as happens during nap time, one or more children were awake. The notes are largely illegible, but, absent evidence that the staff persons required to maintain ratio were not in the building, Respondent has not proved this staffing ratio deficiency. On November 12, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. The inspector found deficiencies in failing to label supplies, maintain the playground free of “a few plastic cups,” repair or replace a torn sleeping mat, maintain at least 18 inches between two sleeping mats in the older two- year-old room, and maintain accurate daily attendance records in one classroom. Respondent has proved the deficiencies in failing to label supplies, maintain at least 18 inches between sleeping mats, and keep accurate attendance records, but not the remaining cited deficiencies. On November 25, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that Petitioner lacked documentation that Maria Theresa Tvarbe, Danielle Mains, Kelly Walling, Amber Litreal, and Christine Quigg had enrolled in 30 hours of the required training; only one staff person had a CDA certificate, although several staff persons might possess an equivalent; Marsha Studie and Maria Robenalt (whose hire date was January 17, 1998) had obtained tuberculosis tests; and Tracy Constantini, Gladys Perez, Elba Valdes, and Marsha Studie had completed employment histories. Absent evidence of hire dates, Respondent has not proved any deficiencies in the 30 hours of required training. The suggestion that several staff persons might have a CDA equivalent (expressed in the inspection report as an exemption from the CDA requirement) precludes a finding of a deficiency on this issue. The absence of a hire date for Marsha Studie and the hire date within 10 days of the inspection for Maria Robenalt preclude a finding of any deficiencies in their tuberculosis testing. However, Respondent has proved the deficiencies in employment histories for four employees. On December 15, 1998, Respondent filed an administrative complaint against Petitioner for, on February 27, 1998, a supervision deficiency in the two-year-old room; on July 7, 1998, a supervision deficiency in the toddler room when an inspector saw children misbehaving because the teacher could not see all of the children due to the configuration of the room; on July 30, 1998, a staffing deficiency (by one child) in the two-year-old room and inadequate supervision due to the room’s configuration; and on September 28, 1998, a staffing deficiency (by two children per teacher) in the one- year-old room. The administrative complaint proposes an administrative fine of $50, which Petitioner paid. Respondent received a complaint on December 17, 1998, from a parent that her child had contracted a bad diaper rash while attending the Center and that a teacher had “sternly command[ed]" a child at nap time, “You close your eyes right now.” Responding to the complaint, on December 17, 1998, Respondent conducted an inspection and found no deficiencies of staffing ratios or supervision. The inspector found deficiencies involving the availability of the disciplinary policy, labeling of bottles, and sanitary handling of diapers and diapering. A note states that Petitioner would terminate the staff person who had spoken sternly to a child and that this employee had not normally worked in the classroom. Respondent has proved the deficiencies, except concerning discipline. The evidence insufficiently details this deficiency. On January 5, 1999, Respondent received a complaint from an unidentified source that many children did not wear their socks and shoes while at the Center, a child had stood alone at the front entrance to the Center, one staff person had supervised 21 three-year-olds, and the Center director had posted a sign asking parents to “help out” during their lunch time so the teachers could take a break. Responding to the complaint, Respondent conducted an inspection the next day and found no children without socks and shoes on their feet, no children unsupervised, and a sign requesting help from parents during their lunchtime. The inspector found a staffing ratio deficiency ”due to weather conditions and illness[, which] was quickly corrected.” The inspector also found a deficiency in the presence of a mud, rust, or food carpet stain. Respondent has not proved these deficiencies. The inspector also found that Petitioner lacked documentation that “Danielle,” “Kelly,” “Amber,” and “Marsha” had completed the 30 or 40 hours of required training; “Tracy,” “Gladys,” “Amber,” and “Marsha” had completed employment histories; “Maria,” “Marsha,” and “Donna” had obtained tuberculosis tests; and more than one staff person had obtained a CDA certificate. Absent evidence of hire dates, Respondent has not proved deficiencies in the completion of the 30 or 40 hours of required training or, as to “Donna,” the tuberculosis test. However, Respondent has proved deficiencies in the lack of tuberculosis tests for “Maria” and “Marsha”--presumably, Maria Robenalt and Marsha Studie, who were first named in inspection reports dated January 17, 1998, and November 25, 1998, respectively. Respondent has also proved deficiencies in the employment histories of the three staff persons and an insufficient number of staff persons holding CDA certificates. The next day, January 7, Respondent received another complaint from a parent who reported that the Center director was refusing to accept the children of 20 parents because the Center lacked sufficient staff to meet the staffing ratios. Reportedly, 8-10 children with head lice were also in the lobby without supervision. Responding to the complaint, at 10:00 a.m. on January 7, Respondent conducted an inspection. The inspector found no staffing ratio deficiencies, but saw four children with head lice in the hallway awaiting their parents to come pick them up. At the inspector’s request, a staff person found an empty classroom for the lice-infested children to wait in isolation until their parents arrived. The inspector cited this as a deficiency in the isolation and supervision of ill children. The inspector found a supervision deficiency when the teacher on the playground accompanied two children to the bathroom, leaving 12 children unsupervised on the playground. The inspector also found deficiencies because of dusty vents and a bathroom light that had burned out in the bathroom in one classroom, the storage of supplies, diapering and sanitation, and two classrooms with uncompleted attendance records as of 11:00 a.m. The inspector did not find as a deficiency the action of the Center director in declining to accept enrolled children, who would have placed the Center off-ratio. Respondent has proved all of the deficiencies cited by the inspector in the January 7 inspection. However, with the exception of the supervision deficiencies, the other deficiencies were overshadowed by a larger problem, which, although not a deficiency in itself, had been the source of repeated complaints. This larger problem was staff’s inability to control the children. Trained staff and structured classroom settings were in short supply; out-of- control children, frustrated staff, and angry parents were abundant. Although the Center director properly declined to accept more children, knowing that more children would throw the Center off-ratio, the disorderly drama that unfolded in the lobby, as confused parents found themselves unable to drop off their children--accompanied by unsupervised, lice-infested children wandering the hallway--graphically revealed the poor organization afflicting the Center at its inauspicious start to 1999. Seeking to relieve the January 7 situation, the Center director prepared a Plan of Action, which she faxed to Respondent on January 7. Marsha Studie had become the Center director in mid-December 1999, after several persons had served in this position since Ms. Starr. Noting that staff illnesses had contributed to the staff shortage, the Plan of Action describes scheduling changes to bring more teachers into the school at the start of the day. Immediately, Petitioner would pay overtime for this coverage, eventually hiring additional staff for this purpose. The Plan of Action reports that one new teacher would start on the same day as the plan, and one would start on January 25. The Plan of Action also promises that attendance sheets will be promptly and correctly filled out everyday. On January 8, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that the attendance records for several classrooms were incomplete, as of 8:25 a.m. The inspector also found that Petitioner lacked any documentation, besides an application, for one staff person, Susan Cox, whose hire date was December 17, 1998. Respondent has proved all of the cited deficiencies. By letter dated January 12, 1999, Respondent advised Petitioner of its intent to take administrative action for the deficiencies in staffing ratios and supervision observed on December 15, 1998, and January 6 and 7, 1999, as well as other deficiencies cited on the latter two dates. Acknowledging the receipt of the Plan of Action, the letter requires a corrective action plan to ensure that enrollments do not exceed minimum required staffing levels, to provide a plan for specialized training and support for the director, and to provide inservice training of staff to cover child care, documentation, health care, sanitation, and certifications. The letter recommends that Petitioner assign a corporate representative to the Center until the director obtains child care training. On January 15, 1999, Respondent conducted an inspection and found deficiencies in staffing ratios and supervision, but inspections on January 19 and 22 found no such deficiencies. Respondent has proved the deficiencies found in the January 15 inspection. By letter dated January 20, Petitioner’s Director of Training informed Respondent that it was changing staff schedules to accommodate better the arrival and departure times of children. The letter transmits a 30-day training calendar for the Center director and staff. By administrative complaint dated February 4, 1999, Respondent alleged numerous deficiencies in staffing ratios and supervision during the past six months and proposed a fine of $400, which Petitioner paid. Respondent conducted inspections on February 18 and March 16 and found no deficiencies in staffing ratios or supervision. However, both inspections revealed numerous documentation deficiencies. On February 18, 1999, the inspector found a deficiency in attendance records in one classroom. The inspector also found that Petitioner lacked documentation that Danielle Mains, Gladys Perez, Kelly Walling, Amber Litreal, Marsha Studie, Tracy Constantini, and Darlene Vasquez had enrolled in 30 hours of the required training; more than one staff person had obtained a CDA certificate; Maria Robenalt, Donna Solovey, Pauline Squires, and Allison Arnold had obtained tuberculosis tests; Traci Constantini, Gladys Perez, Elba Valdes, Susan Cox, Pauline Squires, Allison Arnold, and Jennifer Ealy had completed employment histories; Pauline Squires and Allison Arnold had obtained local law enforcement screenings; Allison Arnold had submitted her fingerprints; Florence Steven had filed an affidavit of good moral character; and Pauline Squires, Allison Arnold, and Florence Steven had filed abuse-reporting acknowledgements. The inspector found that the employment records lacked hire dates for Donna Solovey, Susan Cox, Allison Arnold, Lisa Clary, Jennifer Ealy, and Florence Steven. Respondent has proved the deficiencies in failing to keep accurate classroom attendance records; to employ the required number of staff persons with CDA certificates; to complete employment histories for seven staff persons; to obtain an affidavit of good moral character for one staff person and abuse-reporting acknowledgements for three staff persons; to enroll in 30 hours of the required training for Danielle Mains (who was first mentioned in the July 22, 1998, inspection report), but not Gladys Perez, Kelly Walling, Amber Litreal, and Marsha Studie (who were all first mentioned in the November 25, 1998, inspection report, so that 90 days may not have expired since their hire dates); and to obtain a tuberculosis test for Maria Robenalt (who was first mentioned in the January 17, 1998, inspection report). Respondent has failed to prove the remaining deficiencies due to the lack of hire dates. On March 16, 1998, the inspector found deficiencies in children’s health records because Petitioner lacked documentation of a physical examination for A. R. and current immunizations for M. M., B. M., and A. P. However, Respondent has failed to prove these deficiencies because of the lack of enrollment dates. The inspector also found that Petitioner lacked documentation of enrollment in 30 hours of the required training for Danielle Mains, Gladys Perez, Kelly Walling, Mariana Baitrage, Lisa Clary, Marsha Studie, and Tracy Constantini; employment of more than one staff person with a CDA certificate; employment histories for Tracy Constantini, Marla Squinos, and Staci Pernell; an abuse-reporting acknowledgement for Madelyne Guillaume; and an incident report for repeated incidents of sexually inappropriate activity by one child. Respondent proved the deficiencies in enrollment in training for Danielle Mains, Gladys Perez, Kelly Walling, Marsha Studie, and Tracy Constantini; employment of the required number of staff persons with CDA certificates; employment histories for three staff persons; an abuse- reporting acknowledgement for one staff person; and preparing an incident report. Sometime between March 8 and June 2, Amy Harmon replaced Marsha Studie as the Center director. On June 7, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. The inspector found deficiencies in failing to post planned activities, maintain the outdoor play area (due to the presence of an empty plastic soda bottle), maintain a bathroom (which had run out of paper towels), and clean certain toys. Respondent has proved the deficiencies in failing to post planned activities and maintain the bathroom, but not the remainder of the deficiencies described in this paragraph. The inspector also found that Petitioner lacked documentation that Gladys Perez, Mariana Baitrage, Jennifer Ealy, Lillie Guillaume, Staci Pernell, Kelly Walling, and Tracy Constantini had enrolled in 30 hours of the required training; any staff person had obtained a CDA certificate; Amy Harmon and Jill Burke had obtained tuberculosis tests; Amy Harmon and Staci Pernell had completed employment histories; Amy Harmon and Jill Harmon had filed affidavits of good moral character; Amy Harmon had filed an abuse-reporting acknowledgement; and Amy Harmon had completed a local law enforcement screening. Respondent has proved the deficiencies in enrollment in the required training for Gladys Perez, Jennifer Ealy, Kelly Walling, and Tracy Constantini; the required number of staff persons with CDA certificates; the employment histories and affidavits of good moral character for two staff persons; and the abuse-reporting acknowledgement for one staff person. Respondent has failed to prove the remaining deficiencies due to the lack of hire dates. The inspector also found that Petitioner lacked documentation of current immunizations for J. B. and J. H and physicians’ information for J. C., C. C. and C. C. Respondent has proved the deficiencies concerning physicians’ information, but has failed to prove the deficiencies concerning immunizations due to the lack of enrollment dates. On June 25, 1999, Respondent received a complaint from an anonymous source that after 5:00 p.m. on that day one staff person was supervising ten children, including one child estimated to be four years old. Responding to the complaint, Respondent conducted an inspection on July 6, 1999, and found no deficiencies in staffing ratios or supervision. However, the inspector found deficiencies in failing to post activities and storing bleach within the reach of children. Respondent has proved both of these deficiencies. The inspector also found that Petitioner lacked documentation that Gladys Perez, Lillie Guillaume, and Jennifer Ealy had enrolled in 30 hours of the required training; and Amy Harmon and Jill Burke had obtained tuberculosis tests and affidavits of good moral character. Respondent has proved all of these deficiencies. The inspector also found that Petitioner lacked documentation of current immunizations for J. C., H. C., T. P., J. S., R. V., A. W., J. B. and J. H.; a current physical examination for A. S.; and completed enrollment forms for J. C., C. C., C. C., C. N., J. O., N. P., A. R., C. S., F. S., S. S., and A. S. Only 29 days had passed since the previous inspection, which is the only evidence of enrollment dates for any of these children. Respondent has thus failed to prove the deficiencies for current immunizations and the physical examination. Respondent has proved the deficiencies for the failure to maintain completed enrollment forms for 11 children. On July 29, 1999, Respondent received a complaint from an anonymous source reporting that, three days earlier at 10:30 a.m., one staff person had supervised 14 two year olds. Responding to the complaint, Respondent conducted an inspection on July 30, 1999, and found no deficiencies in staffing ratios or supervision. On July 30, 1999, Respondent declined to renew Petitioner’s annual license, but issued a third provisional license. The July 30 letter explains that the issuance of a provisional license is “pending resolution of recent complaints involving staff-to-child ratios.” The letter adds that the Center lacks a sufficient number of credentialed staff. On August 24, 1999, Respondent conducted an inspection and found a deficiency in the staffing ratio in the 0-12 month classroom, where the ratio was one staff person to seven infants, rather than one staff person to four infants. The inspector found no supervision deficiencies, although there were deficiencies in posting or following planned activities, labeling bottles, and maintaining equipment. The inspector also found that Petitioner lacked documentation that Jennifer Pohlmann had completed local law enforcement screening. Respondent has proved these deficiencies, except for the screening deficiency in the absence of a hire date. At some point between August and October 1999, Raquel Revuelta replaced Amy Harmon as the Center Director. On October 4, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, Respondent found deficiencies in failing to post and follow planned activities, maintain a garbage pail lid, and repair or replace two pedals on a bicycle. Respondent has proved all of these deficiencies. The inspector also found that Petitioner lacked documentation that more than one staff person had a CDA certificate; Sherry Williams had obtained an updated tuberculosis test; Jamie van de Mortel, Barbara Hernandez, and Jennifer Pohlmann had filed affidavits of good moral character; Barbara Hernandez had filed an abuse-reporting acknowledgement; Jennifer Pohlmann had had her fingerprints submitted; Elba Valdez had completed her 30 hours of required training; and Amanda Banboom and Jamie van de Mortel had started their 30 hours of required training. Respondent has proved the deficiencies concerning the required numbers of staff persons with CDA certificates, three staff persons without affidavits of good moral character, one staff person whose fingerprints had not been submitted, and one staff person without an abuse-reporting acknowledgement. Respondent has not proved the remaining deficiencies due to the lack of hire dates. By letter dated October 13, 1999, Respondent provided Petitioner an administrative warning for various deficiencies in personnel requirements at the Center. The letter states that inspectors had found on eight occasions in the past year deficiencies in training, background screening, and tuberculosis testing. The letter also expresses concern over the lack of a sufficient number of credentialed staff persons at the Center. On October 19, 1999, Respondent received a complaint from an anonymous source that, at the morning drop-off that day, one staff person was supervising 30 children, including some less than two years old. Responding to the complaint, on October 20, 1999, Respondent conducted an inspection and found a deficiency in the staffing ratio, based on the records for the preceding day, when only one staff person supervised 28 children, ages 1 to 4 years, in the toddler room from 7:30 a.m. to 7:50 a.m. The Center director, Raquel Revuelta, explained that two infants had arrived earlier than scheduled, and she had been 20 minutes late that morning. Ms. Revuelta agreed to schedule another employee to arrive at work at 7:30 a.m., starting the next day. The unexplained tardiness of a director is attributable to Petitioner, so Respondent has proved a staffing ratio deficiency. The inspector found no supervision deficiencies, but found deficiencies in failing to post planned activities for the toddler classroom, to ensure the presence of a staff person certified in cardiopulmonary resuscitation until 7:50 a.m. on October 19 (only two staff persons had such certification), and to repair or replace the damaged garbage can lid and bicycle pedals, which had both been cited in the October 4 inspection report. Respondent has proved these deficiencies. The inspector found that Petitioner lacked documentation for the completion of tuberculosis tests by Sherry Williams, Barbara Hernandez, and Rebecca Esquivel; local law enforcement screenings for Rebecca Esquivel and Jennifer Pohlmann; employment histories for Rebecca Esquivel and Barbara Hernandez; fingerprinting for Rebecca Esquivel; an affidavit of good moral character and abuse-reporting acknowledgement for Rebecca Esquivel; and 30 hours of the required training for Rebecca Esquivel. Additionally, the inspector found that Petitioner had not completed, until October 19, 1999, a local law enforcement screening or submitted to Respondent the fingerprints of Jennifer Pohlmann, who had been hired on August 16, 1999. Respondent has proved the deficiencies concerning tuberculosis tests for Sherry Williams and Barbara Hernandez, local law enforcement screening for Jennifer Pohlmann, employment histories for Rebecca Esquivel and Barbara Hernandez, and the affidavit and acknowledgement for Rebecca Esquivel. Respondent has not proved the remaining deficiencies due to a lack of hire dates. By letter dated November 16, 1999, Respondent informed Petitioner that it was considering administrative action for the staffing deficiency of October 19, as well as Petitioner’s use of one employee to supervise 28 children in the room whose configuration precludes effective supervision and whose size permits only 22 children. The letter also notes Petitioner’s ongoing failure to correct deficiencies in personnel files. On November 23, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision, equipment, isolation practices, planning and posting activities, classroom attendance records, sanitation, or documentation of the completion of tuberculosis tests or required training. However, the inspector found that Petitioner lacked documentation of immunizations for T. B., J. B., A. B., and A. C.; a physical examination for A. B.; and physician’s information for C. C. The only one of these children previously mentioned is C. C., who had also lacked physician’s information in the June 7, 1999, inspection report. Absent enrollment dates or previous citations in inspection reports not made in the past 30 days, Respondent has not proved any of these deficiencies, except the failure to maintain physician’s information for C. C. On January 4, 2000, Respondent conducted an inspection and found no staffing ratio deficiency, but found a supervision deficiency. While the inspector was observing the poorly configured two-year-old toddler classroom, she saw primarily English-speaking children who were misbehaving and a teacher who, primarily a Spanish speaker, had trouble redirecting them. One child had a finger accidentally caught in a door that was closing. Although the quality of the supervision was questionable, the record does not support a determination that the teacher was not physically within sight and sound of the children at all times. Respondent has thus failed to prove this supervision deficiency. The inspector also found deficiencies in posting and following planned activities, discipline (because a staff person yelled at a child), an unrepaired hole in a classroom wall, broken plastic blinds in a classroom, bleach stored within reach of children, unsanitary diapering practices, and the consumption of cookies outside without napkins or plates. Respondent has not proved the deficiencies for posting and following planned activities, as the record does not explain the inadequacy of the block scheduling after the normal school day; discipline, as the record does not establish the contents or context of the yelling or that the yelling violated Respondent’s disciplinary policy or was in violation of Respondent’s rules as “severe, humiliating, or frightening”; or the consumption of cookies outside without napkins or plates, as the record does not reveal, among other things, whether each child had more cookies than he or she had hands. Respondent has proved the remaining deficiencies. The inspector also found a deficiency in isolation. The inspector found a child in the four-year-old classroom with a fever. When asked why she did not isolate the child, the teacher responded that she had nowhere to send the child. When the inspector brought this situation to the attention of the Center director, who was Ms. Revuelta, Ms. Revuelta isolated the child in her office, at one time leaving the child alone in the office with only the inspector to watch her. These facts constitute a deficiency in maintaining and using isolation areas and raise doubts as to Ms. Revuelta’s judgment. The next day, Respondent conducted another inspection and found no supervision deficiency, but found a staffing ratio deficiency. During nap time, the inspector found one one-year-old child awoke screaming, and the screaming awoke half of the 19 napping children in this one- to two-year-old classroom. Five children got up and took seats at a table where, during nap time, they were eating crackers. The inspection report notes that two staff persons had “just returned from an hour break,” but neither the report, nor the testimony of the inspector, describes how long the two staff persons had been gone after the children had awoken or where they had been during nap time. Respondent does not contend that the staffing ratio was insufficient while the children napped, but only after one of them waked up the others. As noted in the Conclusions of Law, the relaxation of the staffing ratio rule applies during “nap time” and does not necessarily end with the first child waking or the waking of several children, as long as nap time remains in effect for a significant number of children. Thus, absent evidence that nap time ended before the return of the additional staff persons and that the classroom was off-ratio even at the end of nap time, Respondent has not proved this staffing ratio deficiency. The inspector also found deficiencies in failing to maintain 18 inches between mats and an unobstructed exit, as one mat blocked a door. Respondent has proved the former deficiency, but not the latter. The inspector found that Petitioner lacked documentation that “Barbara” and “Maria” had started 30 hours of the required training, “Jamie” had completed the 20-hour component, more than one staff person had obtained a CDA certificate, and “Crystal” and unnamed volunteers had obtained tuberculosis tests. Absent evidence of hire dates, Respondent has not proved these deficiencies, except for the failure to maintain the required number of staff persons with CDA certificates. The inspector found that Petitioner lacked documentation that A. B. had current immunizations and a current physical examination. The inspector had cited A. B.’s files on November 16, 1999, so Respondent has proved these deficiencies. By letter dated January 11, 2000, to Ms. Revuelta, the inspector, who had conducted nearly all of the inspections of the Center, informed Ms. Revuelta that the next CDA course would start January 24 and another course would not begin locally until August. Although not required to have done so, the inspector not only obtained this information, but asked a person affiliated with the group sponsoring the course to send application and scholarship materials to the Center. The inspector noted that Ms. Revuelta, who had finished half of the CDA course, could still enroll in the January session and obtain her certificate. By administrative complaint dated January 24, 2000, Respondent alleged the October 19 staffing ratio deficiency, the January 4 supervision deficiency, and the October 4 deficiencies in employment history and tuberculosis testing. Respondent sought to impose a $250 administrative fine, which Petitioner paid. By letter dated January 31, 2000, Respondent issued a second consecutive (fourth overall) provisional license. The letter explains that the license is provisional due to the deficiencies in staffing ratios, supervision, credentials, training, and personnel documentation. The letter warns that Respondent could not legally issue a third consecutive (fifth overall) provisional license and requires that Respondent submit by February 15, 2000, a written plan of action to bring the Center into compliance. On February 4, 2000, Respondent received a complaint from an identified source that a staff person had left 15 children locked in a van, unattended, the previous November while she went into a store to buy them treats. Responding to the complaint, Respondent conducted an inspection on February 8. The inspector interviewed the Center director and staff person, who had driven the van on the day in question three months earlier. The driver stated that she had left the children in the van momentarily while she picked up a previously paid-for bag of ice from the outside of a convenience store and that she had watched the children at all times while out of the van. If the employee’s hearsay testimony is true, and nothing in the record discredits it, she never was out of sight of the children for the few seconds that it took to obtain the bag of ice. Respondent has thus failed to prove this supervision deficiency. The inspector found no deficiencies in staffing ratios in what appears to have been a brief investigation of a somewhat stale incident. By letter dated February 10, 2000, from Ms. Melendez to the inspector, Ms. Melendez stated that she was looking forward to working with Respondent in making the necessary changes at the Center to improve the quality of care. Ms. Melendez identified six steps that the Center would take to achieve this improvement, including three inservice sessions at which attendance would be mandatory, the use of a consultant to recommend how to improve the child care and classroom management, financial assistance from Petitioner so three employees could attend the consultant’s CDA class starting in February, and already-completed updating of all staff persons’ files to ensure that they contained all required documentation. On February 15, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios, supervision, tuberculosis tests, the required number of staff persons certified in cardiopulmonary resuscitation, and the required background screenings. However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, “Maria,” “Heather,” and “Crystal” had begun 30 hours of the required training, Jamie van de Mortel had completed or exempted 30 hours of the required training, and more than one staff person had obtained a CDA certificate. Respondent has proved the deficiency in failing to maintain the required number of staff persons with CDA certificates. Because the October 4, 1999, inspection report mentions Barbara Hernandez and the February 15 citation is for failing to start, not finish, the required training, Respondent has proved the training deficiency as to Ms. Hernandez. Absent evidence of hire dates, Respondent has failed to prove the remaining deficiencies. Although Jamie van de Morel was first mentioned in the October 4, 1999, inspection report, the citation concerning her file is that she failed to complete 30 hours of the required training. Using October 4, 1999, as evidence of her earliest date of employment, Petitioner would have until January 4, 2001, to obtain documentation of the completion of this training. On February 28, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, Heather Stallmer, Crystal Rumpot, Jamie van de Mortel, and Jennifer Pohlmann had enrolled in 30 hours of the required training. Respondent has proved this deficiency in the files of Barbara Hernandez, Jamie van de Mortel, and Jennifer Pohlmann. Absent evidence of hire dates more than 90 days prior to the inspection date, Respondent has failed to prove this deficiency as to the remaining staff persons. The inspector also found that Petitioner lacked documentation that M. S. and C. W. had current physical examinations. Absent evidence of enrollment dates, Respondent has failed to prove these deficiencies. By a note added to the inspection report at the time of the recheck on March 3, 2000, the inspector mentioned that the Center was advertising for a new director to replace Ms. Revuelta. On March 13, 2000, Respondent received a complaint from a parent that her one-year-old child had been bitten five times this week, including three times the preceding day. The parent reported that one bite had broken the skin and that the Center had prepared incident reports for only two of the bites. The parent added that five children had been identified as the children biting her child. Responding to the complaint, on March 14, 2000, Respondent conducted an inspection and observed the child with healing bite wounds on her stomach and arms, as well as “many incident reports” from this classroom for biting. The teachers explained that they had separated the biters and used time out to punish them. The inspector discussed the biting problem with Ms. Melendez and the new director, Jane Wissocki. They agreed to divide the children into small groups, train staff in classroom safety, and distribute literature to the parents. The inspector noted that, although the staffing ratio in the one-year-old classroom met the minimum requirement, and thus warranted no citations for deficiencies in staffing ratio or supervision, the quality of supervision was inadequate to protect the children from harm. On March 29, 2000, Respondent received a complaint from a different parent that her child had been bitten weekly for the past six weeks by the one child and all the bites had broken the skin. Responding to the complaint, Respondent conducted an inspection on March 31, 2000. The inspector spoke with the director, who was again Ms. Revuelta. Ms. Wissocki had quit after a short time, and Ms. Revuelta had agreed to return until Petitioner could find a replacement. Ms. Revuelta told the inspector that she had spoken with the parents of the child about his biting of the complainant’s child and aggressiveness with other children and staff persons, even to the point of hitting staff persons. Ms. Revuelta reported that the parents thought their child’s hearing difficulties, due to be corrected by surgery in mid- April, were the source of his aggressiveness. However, even though he had only attended the Center for a couple of months, the troubled child had generated at least 12 incident reports for pinching, choking, biting, and poking other children. Staff persons had repeatedly placed the child in timeout and even sent him home on occasions. When needed, a staff person remained near the child. Ms. Revuelta therefore promised the inspector to require the parents to remove the child from the Center if another incident occurred. Not citing any deficiencies in staffing ratios or supervision, the inspector concluded that the Center was supervising the children, but this aggressive child was unsuitable for the Center. On April 3, 2000, Respondent received a complaint from a parent who had visited the Center to decide whether to enroll her child there. The parent reported that she had waited outside for 15 minutes before a child opened the door to admit her. During that time, she had seen two school-aged children playing in the lobby without supervision. Responding to the complaint, Respondent conducted an inspection on April 6, 2000, and found that the two children were the children of Ms. Revuelta, who claimed that she never left them alone. She explained that, after she had resigned from the Center, she had begun homeschooling the children. She brought the children with her to the Center while she was serving as director until Petitioner could find her replacement. Not citing the Center for the complained-of incident, the inspector found no staffing ratio deficiencies, but found a supervision deficiency because five children were receiving dance lessons from a dance instructor who had not been screened. Respondent has proved this supervision deficiency. On April 20, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that Petitioner lacked documentation that Heather Stallmer, Barbara Hernandez, Maria Cardentey, Crystal Rumpot, and Tammy Alfonso had enrolled in 30 hours of the required training; Jamie van de Mortel and Jennifer Pohlmann had completed 10 hours of the required training; Tammy Alfonso and Rebecca Esquivel had obtained tuberculosis tests; and Rebecca Esquivel had completed an employment history. Respondent has proved the deficiencies of failing to enroll in the required training within 90 days of employment for Maria Cardentey and Crystal Rumpot, who were mentioned in the January 5, 2000, inspection report, and Barbara Hernandez, who was mentioned in the October 4, 1999, inspection report. Respondent has proved the deficiencies of failing to document the tuberculosis tests and employment history of Rebecca Esquivel, whose records were first cited in the October 20, 1999, inspection report. Absent evidence of hire dates, Respondent has failed to prove the remaining deficiencies. On May 5, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found a discipline deficiency because a teacher was sternly and loudly telling a student, “now, now.” Absent evidence of the context, Respondent has failed to prove this deficiency. The inspector found that Petitioner lacked documentation that Heather Stallmer, Barbara Hernandez, Maria Cardentey, Crystal Rumpot, Michelle Valentine, and Tammy Alfonso had enrolled in 30 hours of the required training; Jamie van de Mortel and Jennifer Pohlmann had completed 10 hours of the required training; Patti Eggnatz had completed background screening and filed an affidavit of good moral character; and Rebecca Esquivel had completed an employment history. Respondent proved the deficiencies for failing to enroll in the required training within 90 days of employment for Barbara Hernandez, Maria Cardentey, and Crystal Rumpot, but not Heather Stallmer, who is first mentioned in the February 15, 2000, inspection report; Michelle Valentine, who is first mentioned in this inspection report; and Tammy Alfonso, who is first mentioned in the April 20, 2000, inspection report. Respondent also proved the deficiencies of Patti Eggnatz lacking an affidavit of good moral character and Rebecca Esquivel lacking documentation of an employment history. Respondent failed to prove the remaining deficiencies due to the lack of hire dates. The inspector added a note to the inspection report that Ms. Revuelta and Ms. Eggnatz would meet with her to discuss the Center and its operating history. Respondent had designated Ms. Eggnatz as the new Center director starting June 1, 2000. Ms. Eggnatz, who has a CDA certificate, had worked for several years at other centers operated by Respondent--most recently, as the director of the center in Miramar, Florida. On May 24, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision, equipment, planning and following posted activities, sanitation, eight-hour inservice training, tuberculosis test results, the number of staff persons trained in cardiopulmonary resuscitation, and classroom attendance records. However, the inspector found deficiencies in failing to discard all medication not currently being dispensed and failing to obtain parental signatures to incident reports, as several forms from February and March lacked such signatures. Respondent has proved these deficiencies. The inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, and Tammy Alfonso had enrolled in 30 hours of the required training. Respondent has proved these deficiencies as to Barbara Hernandez and Maria Cardentey, but not Tammy Alfonso, who was first mentioned in an inspection report dated April 20, 2000. On June 12, 2000, Respondent received a complaint from an anonymous source that the Center had sent children on long field trips without water and sunscreen and there had been 19 children in one teacher’s three-year-old classroom between 8:00 a.m. and 9:00 a.m. that morning. Responding to the complaint, Respondent conducted an inspection on the next day at 1:00 p.m. and found no deficiencies in staffing ratios or supervision. The inspector found that staff persons had taken the children on a field trip without ensuring that they had received sunscreen, so that some children became sunburned. However, water had been available from fountains. The Center agreed to shorten the field trips, ask parents to be sure to apply sunscreen in the morning and send sunscreen to school with their children, and use a water cooler on trips. The inspector concluded that the situation did not constitute a deficiency. However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, and Tammy Alfonso had enrolled in 30 hours of the required training; “Willis” had a current physical examination; and A. S. had current immunizations. Respondent has proved these training deficiencies for Barbara Hernandez and Maria Cardentey, but not Tammy Alfonso. Respondent has proved the deficiency in immunizations, as A. S. was mentioned in the July 6, 1999, inspection report, but not in the physical examination of “Willis,” who does not appear to have been identified in any previous inspection report. On June 13, 2000, Respondent received a complaint from a parent, who was also an employee at the Center. The parent complained that her two-year-old child had been assigned to a teacher’s two-year-old classroom, over the objection of the teacher, who had said that the child was not yet ready for her class. Concerned that the teacher was using intimidating toilet-training tactics on her child, the parent noted that the child had complained of pain in his genitalia. A physician had examined the child, but found no evidence of abuse. Responding to the complaint, Respondent conducted an inspection on the same day, at 5:00 p.m. Obviously, the sexual content of the complaint necessitated an immediate investigation, but, nonetheless, this inspection was the second inspection of the Center on June 13, 2000. The inspector found no basis to the implied allegation of some form of abuse in what seems to have amounted to one employee seeking an ally in Respondent in a dispute with another employee. Finding no deficiencies in staffing ratios or supervision for a second time on the same day, the inspector unsurprisingly found that the deficiencies cited earlier in the day had not yet been corrected in the intervening four hours. On June 23, 2000, Respondent received complaints from several parents concerning child safety, supervision, incident reporting, discipline, communication, and communicable diseases. The parent of the child who had previously been bitten on her stomach and arms by several other children complained that, on June 16, her one-year-old child had been bitten over 40 times by red ants, and Ms. Eggnatz, the director, had failed to communicate the seriousness of the situation to the mother when Ms. Eggnatz had called her to report the incident. Responding to the complaint, Respondent conducted an inspection on June 27. The inspector was unable to see Ms. Eggnatz, who was attending an out-of-town conference, or the supervising teacher, who was on leave on the day of the visit. The assistant director told the inspector that the bites were considerably fewer than 40, but the inspector had seen the child and counted at least 40 bites. The assistant director also stated that an incident report had not been prepared. Returning to the Center the next day, the inspector spoke with Ms. Eggnatz and Ms. Melendez. They told her that they had had the playground treated for ants on June 21. The teacher responsible for supervising the children on the playground was present when the child was bitten by the ants. The teacher saw and heard the child as she was crying, but misinterpreted the crying. Thinking the child was merely crying as an extension of earlier behavior, the teacher merely called the child to come to her. When the child did not respond, but continued to cry, the teacher returned to the other children on the swing, erroneously thinking that the child would come to her or stop crying when she was ready. A short time later, the teacher approached the child when the employee realized that the crying had been too hard, and the teacher had found the child’s legs covered in red ants. The teacher immediately sprayed water on the child to remove the ants. Ms. Eggnatz promptly called the child’s mother, told her of the ant bites, and asked her if she wanted to pick up her child. The mother, who testified, felt that Ms. Eggnatz minimized the severity of the incident. When the mother arrived at the school and saw the severity of the bites, she asked Ms. Eggnatz why she had not taken precautions for a possible allergic reaction. Ms. Eggnatz admitted that she had not known what to look for in determining if someone was having an allergic reaction. By chance, the child already had a physician’s appointment for later in the day, but the mother brought her to the physician without waiting for the appointment. Fortunately, the child did not suffer an allergic reaction, or other lasting injury or scarring from the bites. After examining the child, the physician prescribed an over-the- counter cortisone ointment. The mother returned to the Center after visiting the physician. Missing Ms. Eggnatz, the mother asked the assistant director for a copy of the incident report, but the assistant director told her that she did not have one. The mother spoke with the teacher who had been supervising the child on the playground. The teacher candidly described the incident, as it has been described in this recommended order. After an intervening weekend, the mother returned to the Center the next Monday and met with Ms. Eggnatz. Again, the mother asked for an incident report, but Ms. Eggnatz did not give her one. The mother gave Ms. Eggnatz the two weeks’ notice required before removing a child from the Center. Notwithstanding the incident, the mother testified that she remained quite fond of the teacher, whom the child loved and the mother did not blame for the incident. However, the mother felt that her child was no longer safe at the Center, largely due to excessive staff turnover. Respondent produced an incident report concerning the ant bites. The incident report provides a brief description of the incident and notes that the mother was upset and refused to sign it. There are two separate issues concerning the incident report: whether the mother refused to sign it and whether Center staff prepared the incident report at the time of the incident. On the first issue, it is very unlikely that the mother saw the incident report, so it is very unlikely that she declined to sign it. Respondent has thus proved that Petitioner never attempted to obtain the signature of the mother to the incident report. On the second issue, it is harder to determine whether Petitioner’s employees prepared the incident report at, or even a few days after, the incident. It is possible that the teacher, who spoke primarily Spanish, and the assistant director did not know of the existence of the incident report. The failure of Ms. Eggnatz to provide the mother of the requested report may be explainable, although not justifiable, by the presumably tense and possibly confrontational nature of their meeting the following Monday. But this omission does not establish that Petitioner’s employees failed to prepare the report. Although the Center was sometimes lax about preparing incident reports, on balance, the record does not permit a finding that one of Petitioner’s employees prepared the report substantially after the incident in an attempt to make it appear as though someone had prepared the report in a timely manner. Additionally, although an incident report serves many purpose, the communication by telephone of the incident by Ms. Eggnatz to the mother served the primary purpose, which is to ensure that a parent learns of the incident and, if necessary, can obtain timely medical attention for her child. As to the ant-bite incident and the incident report, Respondent has proved no deficiencies except for the failure of Petitioner to obtain the signature of the parent on the incident report. During the June 27 inspection, the inspector found no deficiencies in staffing ratios, but found deficiencies in discipline because the inspector heard an employee sternly tell children to “sit down” and another employee yelling in a classroom, isolation because the assistant director had remained at work twice with her sick children, and supervision because staff had allowed one- to two-year-old children to cover their heads with blankets during nap time and one teacher had laid down with a child rubbing her back during nap time. Lacking evidence of the context or a violation of the Center’s disciplinary policy, Respondent has not proved either of the two disciplinary deficiencies. Lacking additional detail, Respondent has not proved an isolation deficiency in the assistant director keeping her two sick children with her at the Center. Lacking explicit support in the evidence, statutes, or rules, Respondent has not proved either of the two supervision deficiencies. The record does not reveal, at any given time, how many day care teachers may be lying down with a child soothingly rubbing the child’s back or how many teachers may be allowing toddlers to cover their heads with blankets to induce them to take a nap. The evidence does not support a finding of the potential for harm from these two incidents. By administrative complaint dated July 11, 2000, Respondent alleged a lack of supervision for the June 16 ant- bite incident because of the alleged inability of one teacher to supervise the entire area of the playground involved in the case, and the failure of the Center to complete an incident report. The administrative complaint also alleges two additional failures in supervision in lying down with a child and rubbing her back and allowing the children to nap with their heads under the covers. Lastly, the administrative complaint alleges that the Center was not adequately staffed to isolate ill children. The administrative complaint seeks a fine of $450, which Petitioner paid. On July 20, 2000, Respondent received a complaint from an unidentified source stating that one staff person had taken 14 children on a field trip and one child had become separated from the group for an unreported period of time. The complainant also asserted that the three- and four-year- old classrooms had been off-ratio on two days during the prior week. Lastly, the complainant reported that there were untreated wasp nests and ant mounds on the playground. Responding to the complaint, Respondent conducted the final inspection on July 19, 2000. (There appears to be an error in the date of the inspection or the date of the receipt of the complaint.) The inspector found no staffing ratio deficiencies. The inspector saw no wasp nests, but her ability to check for ant mounds was impeded by rain; however, the inspector saw receipts from an exterminator for treatments on June 21 and July 18. As for the field trip, the inspector learned that, on July 12, one employee had driven 13 children to the movie theater. One child was separated from the group and remained in the lobby after the rest of the group had seated themselves in the theater. A theater employee helped the child find the group, whose supervisor seemed not to have realized that she was missing a child. Upon learning of the incident, Ms. Eggnatz terminated the employee. When the inspector discussed this incident with Ms. Eggnatz, Ms. Eggnatz did not say that she had also been at the theater. Ms. Eggnatz later claimed that she had been at the theater, but this is untrue. The stress of repeated complaints--many of which were unfounded--and repeated inspections--many lasting several hours and two occurring on the same day--affected Ms. Eggnatz to the point that she briefly quit as director. Perhaps these same factors prompted her to misrepresent the facts to the inspector concerning the movie field trip. However, Respondent has proved a supervision deficiency because the rules require an additional staff person on field trips. By letter dated August 16, 2000, Respondent informed Petitioner that it was denying Petitioner’s application for an annual license. The letter cites five major areas as grounds for the denial: staffing ratios, supervision, background screening and personnel records, health-related requirements, and incident reporting. Analysis of the Center’s performance is facilitated by breaking down its three-year licensing history into four periods: August 19, 1997, through July 31, 1998 (the first two provisional licenses); August 1, 1998, through July 31, 1999 (the annual license); August 1, 1999, through January 31, 2000 (the third provisional license); and February 1, 2000, through July 31, 2000 (the fourth provisional license). In the first year, Respondent conducted eight inspections of the Center. (All references to inspections in this recommended order are to inspections for which Respondent produced admissible evidence; there were additional inspections.) Staffing ratios and supervision were in compliance at each of the seven inspections monitoring staffing ratios and supervision, except for one supervision deficiency in the March 6, 1998, inspection. In the second year, Respondent conducted 16 inspections of the Center. Staffing ratios and supervision were in compliance at each of these 16 inspections, except for one supervision deficiency in the January 7, 1999, inspection; and one staffing ratio and one supervision deficiency in the January 15, 1999, inspection. In the first half of the third year, Respondent conducted six inspections of the Center. Staffing ratios and supervision were in compliance at each of these six inspections, except for staffing ratio deficiencies in the inspections of August 24, 1999, and October 20, 1999. In the second half of the third year, Respondent conducted 13 inspections of the Center. Staffing ratios and supervision were in compliance at each of these 13 inspections, except for supervision deficiencies in the inspections of April 6, 2000, when an unscreened dance instructor was supervising children, and July 19, 2000, when an additional staff person failed to accompany the movie field trip. As reflected by the frequency of monitoring staffing ratios and supervision, these two items are crucial to the safety of children at a child day care center. The evidence demonstrates no significant shortcomings in the operation of the Center regarding these two items during the Center’s three years of operation. The Center’s operations have not been as good regarding background screening, personnel records, enrollment records, and health records. For these documentary requirements, the Center was not in compliance 14 times the first year, 70 times the second year, 18 times the first six months of the third year, and 21 times the second six months of the third year. There was some improvement in the last year of operation, but the second year was an easy year to follow. These screening and records requirements enable a child day care center to serve its children by providing quality care in a safe, healthy environment. However, the deficiencies proved in this case, while serious, do not constitute sufficient grounds for denial of a license at this time, although additional evidence of a pattern of ongoing deficiencies in these important documentation requirements would be indicative of unsuitability for licensure. As for incident reporting, which is the last basis for the denial, Petitioner demonstrated substantial, although not invariable, compliance. The Center was not in compliance once in the second year and twice in the second half of the third year, although one of these two deficiencies involved several incident reports and the other involved a failure to obtain the signature of the mother of the child bitten by ants. The remaining deficiencies, on which Respondent has not relied directly in declining to renew Petitioner’s license, range from relatively minor deficiencies involving equipment and sleeping mats to more troubling deficiencies involving classroom attendance records (through which staffing ratios are monitored), isolation practices, sanitation, and posting and following planned activities. The cumulative impact of the demonstrated deficiencies in these requirements does not alter the result in this case. In its three years, Respondent has fined Petitioner a total of $1150. Although Respondent has failed to prove many of the alleged deficiencies that supported the administrative fines, the many deficiencies that Respondent chose not to include in these administrative complaints would have sustained several times the total amount that Respondent fined Petitioner.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order issuing Petitioner an annual child day care license for the Naples center with an effective date of August 1, 2000. DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2001. COPIES FURNISHED: Virginia A. Daire, 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 Building 2, Room 204 Tallahassee, Florida 32399-0700 Ira L. Young General Counsel Tutor Time Learning Systems, Inc. 621 Northwest 53rd Street, Suite 450 Boca Raton, Florida 33487 Eugenie G. Rehak District Legal Counsel Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906
The Issue The issue to be resolved in this proceeding concerns whether violations of Sections 402.305 and .310, Florida Statutes, and Section 65C-22.001, Florida Administrative Code, have been committed with regard to the care of children at the Petitioner's facility, such that its license should be revoked or other penalty imposed.
Findings Of Fact The Petitioner Gwendolyn Gobler was licensed to operate a daycare facility called Discovery Christian Learning Center, by the Department of Children and Family Services (Department) from August 13, 2001 through August 12, 2002. The Petitioner has a Bachelor's degree in early childhood education and has had a license for a family daycare home or center since sometime in 1998. Discovery Christian Learning Center, the subject facility, is located in St. Augustine, Florida at Number 260, State Road 16. State Road 16 is a busy four-lane highway in St. Augustine connecting Interstate 95 to downtown St. Augustine. On the day in question, January 17, 2002, an insurance agent Bill Matetzsck and his passenger, Ms. Lee Stec, were traveling on Highway 16 in the outer-left lane when they observed two children playing near the street on the outside of the Petitioner's facility. The children, a boy almost aged two and a girl aged two and one-half were playing on the sidewalk throwing leaves in the gutter. The little boy was observed to step into the highway while chasing leaves. Mr. Matetzsck stopped his car after observing the children and Ms. Stec retrieved them before they could be hit by a car and took them back into the facility. Ms. Stec became somewhat upset about the discovery of the children outside of the facility and immediately called the police, local television stations, the Florida Times Union Newspaper and waited for the police to arrive. Mr. Matetzsck observed that the double gate on the side of the property in the area of the backyard had a chain wrapped around it, but there was no lock on the chain. The Petitioner acknowledged to the law enforcement officer who investigated the incident that, although chained, the gate had not been properly fastened or secured. During that same time period Ms. Stec had also made a call to the Department of Children and Family Services reporting the incident. This triggered an inspection and investigation by the Department. Carmen Baselice is a Family Services Counselor assigned to St. John's County. The territory of her regulation and inspection of child care facilities includes the Discovery Christian Learning Center operated by the Petitioner. Ms. Baselice's duties include regulating and inspecting child care facilities and family daycare homes. Ms. Baselice initiated her investigation into the complaint by visiting the Discovery Christian Learning Center and discussing the complaint with Ms. Gobler. Ms. Gobler had noticed that the children were missing from her playground in the backyard and had just gone inside to see if they had gone back in the house at the time the children were being brought inside from the front of the house by Ms. Stec. Ms. Baselice observed that the front door of the facility was not properly fastened due to tape being placed around the doorknob locking mechanism. The door could only be locked by use of a deadbolt. Ms. Baselice felt at the time that the children may have exited the facility by that door. Ms. Gobler, however, stated that the only possible way that the children could have gotten out was by the gate which she acknowledged was not properly fastened. On January 17, 2002, Ms. Baselice received another complaint from a parent who was concerned that it was her child who had gotten out of the facility. The parent was concerned because her own child had gotten out of the facility by the front door in December 2001. Ms. Baselice reviewed the complaint with Ms. Gobler who confirmed that the child had gotten out of the facility by way of the front door by turning the deadbolt, but that she had apprehended the child while the child was still on the front porch and returned her to safety inside the house. On January 8, 2002, before the incident with the two children, Ms. Baselice conducted an annual renewal inspection on the facility. She observed an infant in a crib unattended and the facility "out-of-ratio" for more than thirty minutes. Out of ratio means that there was an insufficient number of staff members for the number of children being kept at the facility. On this occasion there were four children being kept, as well as the infant asleep in the crib in the infant room. Ms. Gobler was the only person present at the time of this inspection, on January 8, 2002. Thirty minutes later the second worker came on duty. The thirty-minute delay in being properly staffed was caused by that worker having a flat tire on her way to work. Ms. Gobler was attending to the toddlers in the larger room and the infant was asleep in the crib in the adjoining infant room, a separate room. However, it is also true that Ms. Gobler had the infant in plain sight from her station in the room with the four other children and could hear the infant through the open or sliding door. Through her testimony, and through Respondent's Exhibit two, in evidence, Ms. Baselice established that Ms. Gobler had a long history of incidents investigated and inspected by the Department and a substantial number of attendant violations. The incidents reported in Respondent's Exhibit two and in Ms. Baselice's testimony began prior to 1998 and there was a history of non-compliance which continued to the present time. During these years Ms. Gobler operated in disregard of the law in a number of instances, either by non- compliance with specific regulatory requirements concerning how her child care facility operated or was equipped, or without licensure in all instances. When the violations were cited she would often correct the immediate problem but later repeat the same type of violation. Many of the violations in her regulatory history are germane to child safety. The subject violations involving the children escaping form the home obviously are directly and dramatically involved with child safety. The little boy in question was about to get into the street and was barely missed by an oncoming car when Ms. Stec retrieved him. Those repetitive violations in the past are referenced in Respondent's Exhibit two and are incorporated herein by reference.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services revoking the Petitioner's license. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 3rd day of October, 2002. COPIES FURNISHED: Gwen Gobler, pro se Post Office Box 1122 Ponte Vedra, Florida 32004 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul F. Flounlacker, Jr., 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 Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact In 1993, the US Health Care Financing Administration gave Respondent approval to design and implement a pilot program for the delivery of mental health services in part of Florida. The pilot program is limited to Medicaid Area 6, which consists of Hardee, Highlands, Hillsborough, Manatee, and Polk counties. The purpose of the pilot program is to change the way in which the State of Florida pays for mental health services under the Medicaid program. At present, the State makes "fee-for- service" payments based on predetermined fees for defined services. RFP, 1.1 KK. Under the new method, the State will make "capitation" payments consisting of a monthly fee paid in advance to the contractor for each enrolled Medicaid recipient, regardless whether the enrollee receives the services during the payment period. RFP, 1.1.H. On November 23, 1994, Respondent issued Request for Proposals 9501 (RFP). The purpose of RFP 9501 is to procure a contract with a "single, comprehensive mental health care provider on a prepaid, capitated basis, to provide mental health benefits to Medicaid recipients who are residents of Medicaid Area 6 . . .." RFP, 1.4. The second paragraph of RFP 1.4 identifies four goals of the procurement: that the procurement proceed in a timely manner, (2) that the . . . RFP . . . encourages free and open competition, (3) that the procurement effort and resulting new contract operations be completed in a timely manner without disruption of service to Medicaid clients, and (4) that the procure- ment result in a single contractor for Area 6 with sufficient resources to provide services to all AFDC related and SSI Without Medicare Medicaid eligibles in Area 6. Section 2.2 requires that the contractor provide "[i]npatient hospital care for psychiatric conditions," "[o]utpatient hospital care for psychiatric conditions," "[p]sychiatric physician services," "[c]ommunity mental health care," "Mental Health Targeted Case Management," and "Mental Health Intensive Case Management." Section 2.3 defines the six categories of services identified in the preceding paragraph. Referring to "Community mental health care" as "Community Mental Health Services," Section 2.3 states: Community Mental Health Services Community Mental Health Services are rehabil- itative services which are psychiatric in nature, rendered or recommended by a psychia- trist; or medical in nature, rendered or recommended by a psychiatrist or other physician. Such services must be provided in accordance with the policy and service provision specified in the Community Mental Health Services Provider Handbook. The term "Community Mental Health Services" is not intended to suggest that the following services must be provided by state funded "Community Mental Health Centers" or to preclude state funded "Community Mental Health Centers" from providing these services: There are eight categories of mental health care services provided under community mental health: Treatment planning and review; Evaluation and testing services; Counseling, therapy and treatment services provided by a psychiatrist or physician; Counseling, therapy and treatment services provided by a direct service mental health care provider; Rehabilitative services; Children's mental health services; Specialized therapeutic foster care, Level 1 and 2; and Day treatment programs. Community mental health services for children in specialized therapeutic foster care and resi- dential treatment will be provided by HRS District 6 Alcohol, Drug Abuse and Mental Health Program Office to the same degree as in the past. Services are limited to those covered services provided by or under the recommendation of a psychiatrist or physician and related to a plan of care provided or authorized by a psychiatrist or physician, as appropriate, based on the patient's diagnosis. Targeted Case Management The contractor shall adhere to the requirements of the Medicaid Case Management Services Provider Handbook, but will not be required to seek certifications from the HRS Districts' Alcohol, Drug Abuse and Mental Health Program Office in regard to clients, agency designation, or mental health care case manager qualifications. Case manager training materials will be made available through the agency for reproduction by the contractor. Intensive Case Management This is a new mandatory service which is intended to provide intensive, team case management to highly recidivistic persons who have severe and persistent mental illness. Section 2.5 requires that the contractor "adhere to the following minimum staffing, availability, and access standards": The contractor shall provide access to medically necessary mental health care (with the exceptions noted in section 2.4 B.) The contractor shall make available and accessible facilities, service locations, and service sites and personnel sufficient to provide the covered services (specifically, non-hospital outpatient, emergency and assessment services) throughout the geographic area, within thirty minutes typical travel time by public or private transportation of all enrolled recipients. (The typical travel time standard does not apply to waiting time for public transportation--it applies only to actual time in transit.) The contractor must allow enrollees to choose one of the capitated services, as provided in Section 5.1 F.1., when the plan offers another service, not reimbursed under the contract, as a downward substitution. The maximum amount of time between an enrollee's request for mental health services and the first point of service shall be as follows: For emergency mental health services as defined in section 1.1 BB., service shall be immediate. For persons initially perceived to need emergency mental health services, but upon assess- ment do not meet the criteria for emergency care, they are deemed to require crisis support and services must be provided within twenty-three hours. For routine outpatient intake, assessment shall be offered within seven calendar days. Follow-up service shall be offered within fourteen calendar days after assessment. Minimum staffing standards shall be as follows, and failure to adhere to these staffing standards, or the staffing standards indicated in the winning proposal, whichever are greater, may result in termination of the contract (if the contractor's "staff" person does not fill one of the "key staff" positions listed on page 81, the staff persons may be a subcontractor.): * * * The contractor's outpatient staff shall include at least one FTE direct service mental health care provider per 1,500 prepaid members. The Agency expects the contractor's staffing pattern for direct service providers to reflect the ethnic and racial composition of the community. The contractor's array of direct service mental health care providers for adults and children must include providers that are licensed or eligible for licensure, and demonstrate two years of clinical experience in the following specialty areas: Adoption, Separation and loss, Victims and perpetrators of sexual abuse, Victims and perpetrators of physical abuse, Court ordered evaluations, and Expert witness testimony. Mental health care case managers shall not be counted as direct service mental health care providers. The contractor shall provide Spanish speaking and Spanish literate direct service providers at each service location at which there are Spanish speaking enrollees. The contractor shall provide staff approp- riately trained and experienced to provide psychological testing. The contractor shall provide staff approp- riately trained and experienced to provide rehabilitation and support services to persons with severe and persistent mental illness. For all persons meeting the criteria for case management as specified in the Medicaid Case Management Provider Handbook, the contractor shall adhere to the staffing ratio of at least 1 FTE mental health care case manager per 20 children, and at least 1 FTE mental health care case manager per 40 adults. Direct service mental health care providers shall not be counted as mental health care case managers. * * * Section 2.10 provides, in part: The contractor shall be responsible for the coordination and management of mental health care and continuity of care for all enrolled Medicaid recipients through the following minimum functions: A. Minimizing disruption to the enrollee as a result of any change in service providers or mental health care case manager occurring as a result of the awarding of this contract. An offeror may not propose rates exceeding Medicaid's upper payment limit, which "is that amount which would have been paid, on an aggregate basis, by Medicaid under fee-for-service for the same services to a demographically similar population of recipients." 4.11. Section 1.1 TTT defines "Upper Payment Limit" similarly: "The maximum amount Medicaid will pay on a capitated basis for any group of services, based upon fee-for- service Medicaid expenditures for those same services." Section 4.11 sets the range of payment rates at 92-98 percent of the upper payment limit. Each offeror is required to propose a specific payment percentage within the range. Section 4.17 allows offerors to propose a risk corridor of up to 16 percentage points plus and minus the proposed range. The corridor must be equal above and below the capitation rate. The RFP illustrates the risk corridor by applying an 8 point corridor to a 95 percent capitation rate. In this case, the contractor absorbs any plan costs up to 4 percent over the actual payments made to the plan by Respondent or retains any excess plan payments up to 4 percent over the actual costs. Beyond the corridor, the contractor and Respondent share equally in the costs or savings, subject to Respondent's upper payment limit. In no event, however, shall the contractor be entitled to payment from Respondent for "start- up" or "phase-down" costs. Section 4.18 addresses subcontractors: The contractor is fully responsible for all work performed under the contract resulting from the RFP. The contractor may, with the consent of the agency, enter into written subcontract(s) for performance of certain of its functions under the contract. The contractor must have subcontracts with all administrative and service providers who are not salaried employees of the plan prior to the commencement of services under this contract. The contractor shall abide by the requirements of Section 1128A(b) of the Social Security Act prohibiting HMOs and other such providers from making payments directly or indirectly to a physician or other provider as an inducement to reduce or limit services provided to Medicaid enrollees. The contractor must submit signed subcontracts, for a complete provider network in order to obtain agency approval for operation in an area, within sixty days of the execution of this contract, for each proposed subcontracted service provider. Any additional subcontracts must be submitted to the agency twenty days prior to the subcontract effective date. Subcontracts must be approved in writing by the agency's Technical Project Manager prior to the effective date of any subcontract. No subcontract which the contractor enters into with respect to performance under the contract resulting from the RFP shall in any way relieve the contractor of any responsibility for performance of its duties. Amendments to subcontracts must be approved by the agency before taking effect. The contractor shall notify the agency in writing prior to termination of approved subcontracts. The contractor will agree to make payment to all subcontractors within 35 days of receipt of all invoices properly documented and submitted by the subcontractor to the plan. All subcontracts executed by the contractor under the resulting contract must meet the following requirements and be approved by the agency in advance of implementation. All subcontracts must adhere to the following requirements: Be in writing. Specify the functions of the subcontractor. Identify the population covered by the subcontract. Specify the amount, duration and scope of services to be provided by the subcontractor, including a requirement that the subcontractor continue to provide services through any post- insolvency period. Provide that the agency and DHHS may evaluate through inspection or other means the quality, appropriateness, and timeliness of services performed. Specify that the subcontractor has read and agreed to the subcontract and the service provision requirements under section 2 of RFP, for services to be provided under the subcontract, and to the contractor's admission and retention criteria for the services the subcontractor will provide as indicated in the subcontractor's response to section 5.1 F3.b,(5). Provide for inspections of any record pertinent to the contract by the agency and DHHS. Specify procedures and criteria for extension and renegotiation. Provide for prompt submission of information needed to make payment. Require an adequate record system be maintained for recording services, charges, dates and all other commonly accepted information elements for services rendered to recipients under the contract. Require that financial, administrative and medical records be maintained for a period of not less than five years from the close of the contract and retained further if the records are under review or audit until the review or audit is complete. Prior approval for the disposition of records must be requested and approved by the contractor if the subcontract is continuous. Require safeguarding of information about recipients according to 42 CFR, Part 431, Subpart F. Require an exculpatory clause, which survives the termination of the subcontract including breach of subcontract due to insolvency, that assures that recipients or the agency may not be held liable for any debts of the subcontractor. Provide for the monitoring of services rendered to recipients sponsored by the contractor. Specify the procedures, criteria and requirements for termination of the subcontract. Provide for the participation in any internal and external quality assurance, utilization review, peer review, and grievance procedures established by the contractor. Make full disclosure of the method and amount of compensation or other consideration to be received from the contractor. Provide for submission of all reports and clinical information required by the contractor. Make provisions for a waiver of terms of the subcontract, if appropriate. Contain no provision which provides incentive, monetary or otherwise, for the withholding of medically necessary care. Require adherence to the Medicaid policies expressed in applicable Medicaid provider handbooks. Require that the subcontractor secure and maintain during the life of the subcontract worker's compensation insurance for all of its employees connected with the work under this contract unless such employees are covered by the protection afforded by the provider. Such insurance shall comply with Florida's Workers' Compensation Law; and Contain a clause indemnifying, defending and holding the Agency and the plan members harmless from costs or expense, including court costs and reasonable attorney fees to the extent proximately caused by an negligent act or other wrongful conduct arising from the subcontract agreement. This clause must survive the termination of the subcontract, including breach due to insolvency. The contractor shall give the agency immediate notification in writing by certified mail of any action or suit filed and prompt notice of any claim made against the contractor by any subcontractor or vendor which in the opinion of the contractor may result in litigation related in any way to the contract with the agency. In the event of the filing of a petition in bankruptcy by or against a principal subcontractor or the insolvency of said subcontractor, the contractor shall immediately advise the agency. The contractor shall assure that all tasks related to the subcontract are performed in accordance with the terms of the contract. The contractor shall identify any aspect of service that may be further subcontracted by the subcon- tractor. Subcontractors shall not be considered agents of the agency. For evaluation purposes, the RFP divides proposals into two parts: technical and rate, including any rate corridor. The six categories under the technical part, with point values in parentheses, are: Management Summary (0 points), Organization and Corporate Capabilities (100 points), Proposed Staffing Pattern and Licensure of Staff and Facilities (250 points), Operational Functions (400 points), Mental Health Care Service Delivery (400 points), and Transition Workplan (100 points). RFP, 6.1. Section 5.1.C describes the 100-point Organization and Corporate Capabilities as follows: The proposer shall provide in this tab a descrip- tion of its organizational and corporate capabi- lities. The purpose of this section is to provide the agency with a basis for determining the contractor's, and its subcontractors', financial and technical capability for undertaking a project of this size. For the purpose of this tab, the term proposer shall refer to both the contractor and its major subcontractors. It does not refer to the plan's "parent company" unless specifically indicated. Section 5.1 D states the elements of the 250-point Proposed Staffing Pattern and Licensure of Staff and Facilities. Section 5.1 D.3 requires the offeror to disclose "actual and proposed" FTE professionals, including psychiatrists, case managers, psychologists, nurses, and social workers. Section 5.1D.4 requires the offeror to explain how the plan will allocate staff to meet various demands, such as for adoption, sexual and physical abuse counseling, and psychological testing of children. Section 5.1 D.5 requires the proposal to: Describe how the plan will ensure that it has the staff resources appropriately trained and experienced to provide rehabilitative and support services to low income adults with severe and persistent mental illness and, under separate heading, to children with severe and persistent mental illness. Denote the number and percent of total FTEs which will be filled by persons with this type of experience and who will be providing these types of services. Explain the contractor's rationale for the staffing levels indicated and provide a brief, one or two line, description of the training and exper- ience of such persons who will provide these services under the plan. Section 5.1.E describes the elements of the 400-point Operational Functions, in part, as follows: Within this tab, the proposer shall explicitly address its operational capacity to serve Medicaid recipients, and its previous history serving the Medicaid and other low income populations. Separately, the proposer shall address the member services the plan will offer, grievance procedures, quality assurance procedures, the contractor's proposed reporting systems, and the contractor's proposed handling of subcontracts. Service Area of Proposed Plan 42 CFR 434.36 Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement specified in section 2.5 A.1. Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement for child psychiatrists specified in Section 2.5 B.2. Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement for adult psychiatrists specified in Section 2.5 B.1. * * * Section 5.1.F describes the 400-point Mental Health Care Service Delivery category. Section 5.1 F states, in relevant part: This section shall include a detailed discussion of the proposer's approach to providing mental health care. The proposer must be able to document a demonstrated ability to provide a comprehensive range of appropriate services for both children and adults who experience impairments ranging from mild to severe and persistent mental illness. Plans must provide services up to the limits specified by the RFP. They are encouraged to exceed these limits. However, in no instance may any service's limitations be more restrictive than those specified in the Florida Medicaid fee- for-service program. The plan cannot require payments from recipients for any mandatory services provided under this contract. Summary of Services * * * The following is a summary list of the services which may be provided . . . * * * Optional Services Crisis Stabilization Unit * * * z. Other Services (List) * * * Care Coordination 42 CFR 434.52; 10C-7.0524(16), F.A.C. Attach the plan's written protocol describing the plan's care coordination system, which should include the plan's approach to care coordination, utilization review, and assuring continuity of care, such as, verifying medical necessity, service planning, channeling to appropriate levels of treatment, and develop- ment of treatment alternatives when effective, less intensive services are unavailable. The protocol should also address the following questions: * * * 3. Indicate how the contractor will establish services in such a way as to minimize disruption of services, particularly to high risk populations currently served by the department, for children and, separately, for adults. * * * Section 6.3 describes the criteria for evaluating proposals. For Proposed Staffing Pattern and Licensure of Staff and Facilities, the evaluation criteria include, at 6.3 B.3.c: The ability of the proposer to ensure it has, and will continue to have, the resources necessary to provide mental health rehabilitation and support to children who are in the care and custody of the state or who have special needs, such as children who have been adopted or have been physically or sexually abused. About a year ago, Respondent issued RFP 9405, which also sought to procure mental health services on a capitated basis for Medicaid Area 6. Respondent received four proposals, which contained numerous deficiencies. Respondent later withdrew RFP 9405 for revisions to encourage more competition. Concerns over competition involve the role of Community Mental Health Centers (CMHC) in the procurement. CMHCs are publicly funded, not-for-profit entities that traditionally have provided five types of services: emergency, outpatient, day/night, inpatient, and prevention education. CMHCs now also operate crisis stabilization units and supply case management services, as well as specialized children's services, services for aged persons with severe and persistent mental illness, and services for persons with alcohol or drug dependencies. The RFP calls for a wide range of mental health care services, only part of which are community mental health services or other services presently provided by CMHCs. However, CMHCs constitute the only available network of existing providers of community mental health services to Medicaid clients in Medicaid Area 6. Medicaid payments account for about 30 percent of the revenue of Area 6 CMHCs. In late 1992, six CMHCs in Area 6 formed Florida Behavioral Health, Inc. in response to competition from one or more other provider networks, such as Charter. The competitive network of six CMHCs consisted of Manatee Glens Corp., Mental Health Care, Inc., Northside Mental Health Hospital, Peace River Center for Personal Development, Inc., Winter Haven Hospital, and Mental Health Services. Although the six CMHCs are not all of the CMHCs in Area 6, they provide nearly all of the community mental health services to Medicaid clients in Area 6. By early 1993, Florida Behavioral Health, Inc. formed Florida Health Partnership with Options Mental Health, Inc., which is a managed-care provider owned by First Hospital Corporation--a behavioral health management company. With the assistance of Florida Health Partnership, Options Mental Health, Inc. submitted a proposal in response to RFP 9405. An oral or written agreement between Florida Behavioral Health, Inc. and Options Mental Health, Inc. prohibited the six CMHCs from assisting any entity but Options Mental Health, Inc. in responding to RFP 9405. This agreement continues to prohibit the six CMHCs from assisting any entity but Options Mental Health, Inc. in responding to the RFP. The six CMHCs have shared with Options Mental Health, Inc. cost and utilization information. The importance of the unpublished cost information is unclear, and Petitioner has not yet made a public records request to obtain this information. The same is true of unpublished utilization information, which includes information on waiting lists for community mental health services. Any delay in providing community mental health services would have a bearing on the projected demand and thus the cost of a capitated plan. After withdrawing RFP 9405, Respondent revisited the requirement that offerors propose an existing network of providers. In an effort to encourage competition, Respondent deleted a requirement in RFP 9405 that proposals contain existing provider networks. Respondent substituted a requirement that proposals describe provider networks generally, without necessarily including names of subcontractors. Petitioner did not prove any fraudulent, illegal, arbitrary, or dishonest act by Respondent. The main thrust of Petitioner's case is that the effect of the RFP is illegal or arbitrary. Petitioner asserts that the RFP requires a sole source provider or, at minimum, precludes free and open competition. Petitioner argues that the RFP illegally and arbitrarily favors offerors of CMHCs, in partnership with CMHCs, or with subcontracts with CMHCs. Through testimony and argument, Petitioner asserts that various provisions of the RFP either exacerbate or fail to ameliorate the advantages enjoyed by CMHCs, especially due to RFP requirements of implementation of the new provider network in 60 days and with minimal disruption to Medicaid clients. RFP 1.4(2) encourages open and free competition. RFP 2.3 D disclaims any intent that only CMHCs may supply community mental health services. Petitioner's chief witness, Dr. Ronald Mihalick, testified that RFP 2.3 D favors CMHCs because state regulations have designated them the sole provider of community mental health services and government grants have funded their capital expenditures. Neither Dr. Mihalick, Petitioner's other witness, nor Petitioner's counsel has suggested a practical means by which to eliminate this advantage of CMHCs, which cannot, by executive or legislative fiat, be stripped of their buildings, equipment, or experienced staffs, nor of the advantages that may accrue to them by virtue of such assets. It would be counterproductive to eliminate CMHCs from direct or indirect participation in the subject procurement. Nor is Respondent required, if it were legally able, to assign to CMHCs the status of universal providers in order to eliminate illegality or arbitrariness from the RFP. The RFP seeks a broad range of mental health services, of which a substantial part are community mental health services. RFP 2.3 D represents a simple description of community mental health services and expressly negates the inference that only CMHCs may provide such services. RFP 2.3 E and F describes two of the five categories of mental health services: targeted case management and intensive case management, respectively. Intensive case management is a new service, and nothing suggests that Area 6 CMHCs have any direct experience that would give them an advantage in providing this new service, Targeted case management is an existing service provided by CMHCs. There is some doubt whether the RFP provides detailed cost information, including information about targeted case management. However, Petitioner has never made a public records request for such information from any of the CMHCs or Respondent. In any event, Petitioner has hardly presented sufficient evidence regarding targeted case management that the inclusion of such a service in the RFP is arbitrary or illegal. RFP 2.5 prescribes standards for minimum staffing, availability, and access. The minimum staffing standards do not require that existing service providers supply the specified services. For instance, "direct service mental health care providers" must be "licensed or eligible for licensure," as provided in RFP 2.5 B.3.a. Petitioner's objection is that the RFP expresses staffing standards in accordance with Medicaid guidelines, under which the CMHCs are already operating. This objection is puzzling because the procurement is for Medicaid services. In any event, the presence of such a provision does not render the RFP illegal or arbitrary for the reasons already stated. RFP 2.5 B.4 requires staffing ratios of one fulltime equivalency (FTE) per 20 mental health care case managers for children and one FTE per 40 mental health care case managers for adults. Again, though, the RFP does not require that such case managers must be currently employed by a CMHC or even currently providing such services. Petitioner legitimately objects to specifications expressed in terms of FTEs when applied to non-administrative services. The use of FTEs applies to fulltime employees, not to individual therapists who may see Medicaid clients on an occasional basis. The requirement that non-administrative services be expressed in FTEs unduly emphasizes process over product or outcome and is inconsistent with the spirit of the RFP. However, the use of FTEs in RFP 2.5 B.4 does not rise to the level of arbitrariness or illegality. As Respondent's chief witness, Marilyn Reeves, testified, an offeror may convert individual therapists to FTEs, even though the contractor may bear the risk of a faulty conversion formula. RFP 2.10 requires that the contractor implement the new capitated plan with minimal disruption to Medicaid clients, whose mental conditions may worsen from such disruption. Petitioner does not challenge this sensible provision. Petitioner instead argues that other pro-CMHC provisions preclude the implementation of a new plan with minimal disruption. Petitioner has failed to prove that the pro-CMHC provisions, except for 4.18 as discussed below, necessitate more than minimal disruption during the transition. RFP 4.17 provides that Respondent shall not pay the contractor's start-up or phase-down costs. Petitioner's objection is that government grants have paid for the capital expenditures of the CMHCs. For the reasons discussed in connection with RFP 2.3 D, Petitioner has failed to prove how this provision is arbitrary or illegal. RFP 5.1 D assigns 250 points for the proposed staffing pattern and requires the offeror to disclose "actual and proposed" FTE professionals, such as psychiatrists, case managers, and social workers. An offeror that has already identified its personnel may be able to provide a more detailed description and earn more points than another offeror that has yet to find its subcontractors. Likewise, RFP 5.1 D.5 requires a discussion of FTEs, although an offeror with as yet unidentified subcontractors probably can satisfy this section with a more generic discussion and not lose points. In any event, to the extent that the specification in terms of FTEs favors CMHCs, such a provision is not so onerous or unnecessary as to be arbitrary or illegal, as discussed in connection with 2.5 B.4. RFP 5.1 E assigns 400 points for operational functions and requires the offeror to "explicitly address its operational capacity to serve Medicaid recipients, and its previous history serving the Medicaid and other low income populations." Unlike RFP 5.1 C, which requires a proposal to address the contractor and its "major subcontractors," 5.1 E does not mention subcontractors, so this provision favors CMHCs even less than the other provisions of 5 and 6. Perhaps for this reason, neither Petitioner's witnesses nor Petitioner's proposed recommended order addressed RFP 5.1 E. RFP 5.1 F requires an offeror to provide a "detailed discussion," in which it shall "document a demonstrated ability to provide a comprehensive range of appropriate services . . .." An offeror with as yet unidentified subcontractors will likely be unable to supply nearly as much detail as an offeror with subcontractors already in place, but this provision would, if challenged, not be deemed arbitrary or illegal. However, Petitioner challenges only RFP 5.1 F.1 (Optional Services) and 5.1 F.4.a.3. Section 5.1 F.4.a.3 reiterates the requirement that the new capitated plan be implemented so as to "minimize disruption of services." As noted above, Petitioner of course does not object to this requirement, but uses it to show how other provisions are arbitrary or illegal. Petitioner objects to the portion of 5.1 F.1 identifying crisis stabilization units as an Optional Service. Although only CMHCs are licensed to operate crisis stabilization units, the same services are available from other sources, although often not as economically. Moreover, the crisis stabilization unit is only an Optional Service, which Respondent mentioned only for illustrative purposes. The last-cited option, "Other Services (List)," encourages offerors to devise creative options that may not involve such traditional providers as crisis stabilization units. RFP 6.3 B.3.c requires the offeror to ensure that "it has, and will continue to have, the resources necessary to provide mental health rehabilitation and support . . .." Satisfaction of the criteria of 6.3 B, like 5.1 C, D, and F, is easier for CMHCs and harder for contractors with as yet unidentified subcontractors. However, the advantage conferred upon CMHCs is not so great as to render 6.3 B arbitrary or illegal. To varying degrees, RFP 5.1 D.5, E.1, and F.1 (Optional Services) and 6.3 B.3.c prefer CMHCs or offerors affiliated with CMHCs. These provisions potentially conflict with the RFP provisions encouraging free and open competition and prohibiting more than minimal disruptions in service. The potential conflicts are partially attenuated by the ability of an offeror, prior to submitting a proposal, to identify subcontractors that may provide similar services to non-Medicaid clients or provide similar services to Medicaid clients in other areas of Florida or other states. RFP 5.1 D.5, E.1, and F.1 (Optional Services) and 6.3B impose qualitative standards upon the contractor and any subcontractors, whose employees have direct contact with the Medicaid clients. Non-CMHC offerors may nonetheless be able to identify, at the proposal stage, their subcontractors so as to earn the maximum points in these categories. For instance, offerors may find non-CMHC subcontractors providing community mental health services to non- Medicaid clients or to Medicaid clients elsewhere in Florida or the United States. With greater difficulty, non-CMHC offerors with as yet unidentified subcontractors may be able to project, at the proposal stage, features of their subcontractors. They may not be able to score as well as CMHCs and other offerors with already identified networks of community mental health service providers. However, to the extent that non-CMHCs are disadvantaged by these provisions, Petitioner has not shown that the inclusion of these provisions is arbitrary or illegal. These provisions ensure the delivery of quality mental health services. As likely as not, Petitioner has included these provisions after careful consideration of the benefits of further competitiveness and the costs of further limitations upon the participation of CMHCs. The final provision challenged by Petitioner is RFP 4.18, which acknowledges that the contractor may not itself provide the mental health services, but may contract with subcontractors for the provision of these services. Requiring that the contractor have subcontracts prior to the commencement of services under the new capitated plan, Section 4.18 adds that the contractor must submit for Respondent's written approval: signed subcontracts, for a complete provider network in order to obtain agency approval for operation in an area, within sixty days of the execution of this contract, for each proposed subcontracted service provider. Petitioner's challenge to RFP 2.3 D, E, and F; 2.5 A and B.3 and 4; and 4.17 fails because these provisions confer upon CMHCs an insignificant advantage, an advantage upon that could not be removed without eliminating CMHCs from the procurement, or an advantage while specifying an important substantive requirement. Petitioner's challenge to RFP 5.1 D.5, 5.1 E.1, 5.1F.1, and 6.3 B.3.c fails because these provisions, even if conferring significant advantages upon CMHCs, impose important qualitative requirements upon the delivery of mental health services to Medicaid clients. However, RFP 4.18 is different from these other provisions. It does not involve the actual delivery of mental health services to Medicaid clients. Section 4.18 dictates only how long after signing the contract with Respondent the contractor has to implement the new capitation contract. The advantage conferred by 4.18 upon CMHCs is neither trivial nor necessary. The federal waiver runs two years from the actual start-up date of the new capitation plan. Obviously, an inordinate delay in implementation might suggest that the contractor is unable to do the job, but nothing in the record suggests that 60 days marks the beginning of an inordinate delay. Respondent understandably wants to get the pilot project started quickly, presumably in anticipation of important cost savings. But these considerations do not rise to the importance of other provisions involving the actual delivery of mental health services to Medicaid clients. Non-CMHCs, especially offerors with as yet unidentified subcontractors, face a considerable task in plan implementation. For this procurement, only one offeror will have the assistance of the CMHCs, which gives that offeror a clear advantage in at least the community mental health and targeted case management categories. There is no good reason to increase this advantage by imposing an unrealistically short implementation timeframe on contractors. On the other hand, there are two reasons why the 60-day implementation timeframe is arbitrary and illegal: it conflicts with RFP provisions encouraging open competition and it conflicts with RFP provisions prohibiting more than a minimal disruption to clients. The new capitation plan represents a marked departure from past practice. The successful contractor is assuming considerable financial risks when it sets its fees and risk corridor, if any. This risk is spread over a wide geographic area containing some of Florida's most densely populated areas. Anticipated cost savings to the State may result in narrowed profit margins before the contractor can safely realize savings from reductions in the cost of mental health services provided to Medicaid clients. The success of the capitation plan is jeopardized if the contractor underestimates the revenue needed for the successful operation of the plan. The offeror without subcontractors at the time of submitting a proposal needs time to enlist the cooperation of CMHCs or other subcontractors. A witness of Respondent described a possible scenario in which CMHCs declined to cooperate with the contractor and were forced to terminate employees. Although these employees would be available to the contractor, they would not likely be available in a 60-day timeframe. A multitude of tasks confront the non-CMHC contractor, especially if the contractor does not have a subcontractor network in place when submitting the proposal. Not surprisingly, Respondent's witnesses did not offer a spirited defense of the 60-day implementation timeframe, as is partly illustrated by the following testimony of Respondent's chief witness: Q: Is there a reason that the language on Page 61 says "must have signed subcontract within 60 days?" A: No. What it is trying to get at there is that if you are going to start being operational within 60 days, you got to know that you got to get those subcontracts approved by us prior to being able to do that. Respondent's witness readily testified that the deadline would not be enforced, if the enforcement jeopardized the welfare of the Medicaid clients. Of course, given the vulnerability of the clients, Respondent would not require the implementation of an unfinished plan at the end of the contractual implementation timeframe, regardless of the duration of the implementation timeframe. But a rational deadline for implementation would not so readily invite discussions of waivers and extensions. The presence of an impractical deadline misleads offerors. Some offerors may obtain an unfair advantage by structuring their proposals without regard to the implementation timeframe, secure in the knowledge that it will not be enforced. Other offerors may limit Optional Services or avoid more creative delivery or administrative programs in order to ensure that their plans can be implemented within the arbitrarily short implementation timeframe. To eliminate arbitrary and illegal conflicts with other RFP provisions encouraging open competition and prohibiting more than minimal disruptions in service, the implementation timeframe of 60 days must be extended to at least 120 days.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order amending RFP 4.18 by inserting "120" days for "60" days in the second paragraph and making any necessary conforming changes elsewhere in the RFP, and, after making these changes, proceed with the subject procurement. ENTERED on January 31, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 31, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: (except that "poisonous" in paragraph 2 is rejected as melodramatic and unsupported by the appropriate weight of the evidence): adopted or adopted in substance. 5: rejected as unsupported by the appropriate weight of the evidence, except for 4.18. 6-7: adopted or adopted in substance, except that Petitioner did not challenge 5.1 E at the hearing or in the proposed recommended order. 8: rejected as irrelevant. 9-13: adopted or adopted in substance. 14: rejected as unsupported by the appropriate weight of the evidence. Petitioner did not prove that the actual information shared by the CMHCs was crucial--only that certain information could theoretically be crucial. 15: adopted or adopted in substance, although other CMHCs operate in Area 6, but do not possess much share of the community mental health services market. 16-17: rejected as irrelevant. 18: adopted or adopted in substance, except for the last sentence, which is rejected as unsupported by the appropriate weight of the evidence (except for 4.18). 19-20: adopted or adopted in substance. 21: rejected as repetitious. 22: adopted. 23-25: adopted or adopted in substance, except for last sentence of paragraph 25, which is rejected as unsupported by the appropriate weight of the evidence. 26-27: adopted or adopted in substance. 28: rejected as unsupported by the appropriate weight of the evidence. 29-33: adopted or adopted in substance, except for last sentence of paragraph 33, which is rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance. 35-36: rejected as unsupported by the appropriate weight of the evidence. 37-38: adopted or adopted in substance, although this was hypothetical testimony of one of Respondent's witness, not a formal statement of Respondent's "position." 39 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 39 (second sentence): adopted. 40-44 (second sentence): adopted or adopted in substance. 44 (third sentence): rejected as recitation of evidence. 45: adopted. 46-47: adopted or adopted in substance. 48: rejected as unsupported by the appropriate weight of the evidence. 49: rejected as irrelevant and, except for 4.18, unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-5: adopted or adopted in substance. 6: adopted or adopted in substance, except for 4.18. 7: adopted or adopted in substance. 8: adopted or adopted in substance, at least to the extent that Petitioner failed to prove the contrary. 9 (except last sentence): adopted or adopted in substance. 9 (last sentence): rejected as speculative. 10-16: adopted or adopted in substance, although the extent of Petitioner's ability to respond satisfactorily is questionable, as is the rationale for the use of FTEs for non-administrative positions. Additionally, all proposed findings that RFP provisions do not place non-CMHCs at a disadvantage, when such proposed findings conflict with findings in the recommended order, are rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Seann M. Frazier Mark A. Emanuele Panza Maurer P.A. 3081 East Commercial Blvd. Suite 200 Ft. Lauderdale, FL 33308 Paul J. Martin William H. Roberts Assistant Attorneys General Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration. (the "Agency") regarding the approval of certificate of need ("CON") applications 10170 and 10171 filed by Oglethorpe or Orlando, Inc. (“Oglethorpe”). 1. Oglethorpe filed CON application No. 10170 to establish a 28-bed adult inpatient psychiatric hospital in Osceola County, Service District 7. The Agency approved Oglethorpe’s CON application 10170. 2. Oglethorpe also filed CON application 10171 to establish a 14-bed adult inpatient substance abuse hospital in Osceola County, Service District 7. The Agency approved 1 Filed October 21, 2013 3:45 PM Division of Administrative Hearings Oglethorpe’s CON application 10171. 3, University Behavioral, LLC, d/b/a University Behavioral Center (*UBC”) filed petitions for formal hearing challenging the Agency’s approval of both of Oglethorpe’s CON applications. 4, La Amistad Residential Treatment Center, LLC, d/b/a Central Florida Behavioral Hospital (“CFBH”) filed petitions to intervene contesting the Agency's approval of both of Oglethorpe’s CON applications. 5. The parties have since entered into the attached settlement agreement. (Ex. 1) IT IS THEREFORE ORDERED: 6. The parties’ settlement agreement is approved and the parties shall comply with the terms of the settlement agreement. 7. The approval of Oglethorpe’s CON application 10170 is UPHELD in accordance with the terms and conditions set forth in the parties’ settlement agreement. 8. The approval of Oglethorpe’s CON application 10171 is UPHELD in accordance with the terms and conditions set forth in the parties’ settlement agreement. ORDERED in Tallahassee, Florida on this wha day of Crfolee. 2013. Elizabeth Agency for Hpalth Care Administration
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review, which shall be instituted by filing the original notice of appeal with the agency clerk of AHCA, and a copy along with the filing fec prescribed by law with the district court of appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of the rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail or electronic mail to the persons named below on this day of Cet OF er. 2013. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Janice Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) W. David Watkins Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Assistant General Counsel Agency for Health Care Administration (Electronic Mail) Michael J. Glazer, Esquire Ausley McMullen 123 South Calhoun Street Tallahassee, Florida 32301 Counsel for Oglethorpe (U.S. Mail) Geoffrey D. Smith, Esquire Smith & Associates 2834 Remington Green Circle, Suite 201 Yallahassce, Florida 32308 Counsel for UBC and CFBH (U.S, Mail)
The Issue The primary issue is whether, under section 409.913(16)(j), Florida Statutes, Petitioner can establish and recover from Respondent overpayments for Medicaid claims for community mental health services that Respondent provided to recipients who were enrollees in plans of various managed care organizations (MCOs) that, pursuant to the standard contract between these MCOs and the Department of Elder Affairs (DOEA), provided services under the Nursing Home Diversion Waiver (NHDW) program.1/ A secondary issue is whether Petitioner is liable to Respondent, under sections 57.105(1)(a) and (5), Florida Statutes, for attorneys' fees for presenting a claim for overpayment that Petitioner knew or should have known was not supported by the necessary material facts.
Findings Of Fact Audit, PAR, and FAR At all material times, Respondent, as an enrolled Medicaid provider, has operated as a community behavioral health provider of community behavioral health services to Medicaid recipients. Petitioner conducted an audit of Respondent's fee- for-service reimbursement claims from January 1, 2008, through December 31, 2011. As a result of this audit, Petitioner determined that Respondent's services duplicated services that MCOs were already required, and paid capitated rates, to provide, pursuant to the NHDW standard contract, so that the reimbursements that Respondent received constituted overpayments. This case reveals a division of responsibility within Petitioner. The audit was conducted by employees of Petitioner's Office of Medicaid Program Integrity, which is within Petitioner's Office of the Inspector General. Program-specific expertise resided with a program analyst in another part of Petitioner. In fact, because operational authority for the NHDW program was divided between Petitioner and DOEA, program-specific expertise resided in one program analyst in each agency: Mr. Young with Petitioner and Megan O'Malley with DOEA. By letter dated March 25, 2013, Petitioner provided Respondent with a Preliminary Audit Report (PAR) advising that Petitioner had completed an audit, determining that Petitioner had overpaid Respondent a total of $284,535.83 in Medicaid reimbursements, and seeking repayment of these alleged overpayments. The PAR explains: Medicaid fee-for-service payments have been identified for recipients while they were enrolled in the Medicaid [NHDW] Program. The fee-for-service payments, shown on the attached work papers, were for services that were to be covered by the recipient's [NHDW] provider. The total amount reimbursed to you for these fee-for-service payments has been identified as an overpayment. After receiving the PAR, Respondent's representatives contacted Petitioner's representatives to discuss the proposed overpayment determination. In an email dated April 29, 2013, Carol Platt, an employee in Petitioner's Bureau of Managed Care, advised Vivian Demille, a representative of Respondent, that Ms. Platt had spoken with Mr. Young and learned from him that the capitated rates paid to NHDW plans for specific community based mental health services would not preclude fee-for-service billing of community based mental health services to NHDW plan enrollees, if the services were not included in the NHDW plan. According to Mr. Young, mental health services covered by NHDW plans fell under Healthcare Common Procedure Coding System procedure codes (Codes) H2000HP, H2010HO, H2000, H0031HO, H0031HN, H2019, and H0031.2/ But Mr. Young determined that Codes H2017, H2019HR, and H0032TS were not covered by NHDW plans and would properly be billed on a fee-for-service basis to Petitioner. About one week later, by email dated May 7, 2013, Ms. Platt advised Ms. Demille that Ms. Platt had been provided with incorrect information. The meaning of the May 7 email is unclear, but, as noted below, Mr. Young never changed his opinion that Codes H2017, H2019HR, and H0032TS were not covered by NHDW plans and could be billed on a fee-for-service basis when these services were provided to enrollees of NHDW plans. By letter dated July 10, 2013, Petitioner issued the FAR. The FAR restates the overpayment amount of $284,353.83, adds the fines and costs identified in the Preliminary Statement, and contains the same explanation that was included in the PAR. The work papers comprise 78 pages of "[NHDW] Fee for Service Match."3/ As the title of the work papers suggests, the work papers document the results of a database search that matched recipients serviced by Respondent with recipients enrolled in a NHDW plan. The work papers also identify by Codes the services that Respondent billed on a fee-for-service basis. Among the Codes appearing in the work papers, Code H2017 accounts for nearly all of the reimbursement claims. The next most common Code billed was H2019HR, which appears at a frequency of about one-seventh of the rate of H2017 claims. On a dollar basis, the three Codes that Mr. Young determined should be reimbursed to Respondent account for over 99% of the total amount claimed by and reimbursed to Respondent during the audit period for all ten Codes identified by Mr. Young. By email dated August 15, 2013, Eduardo R. Lacasa, general counsel of Respondent, asked Ms. O'Malley whether services billed under Codes H2017, "H2019," and H0032TS were reimbursable on a fee-for-service basis when provided to enrollees of NHDW plans. Mr. Lacasa disclosed to Ms. O'Malley the status of the matter between Petitioner and Respondent because, attached to the email, were the PAR and FAR, as well as a recent email from Mr. Young confirming the accuracy of Ms. Platt's email describing his earlier advice. Less than 30 minutes after receiving Mr. Lacasa's email, Ms. O'Malley responded that she too understood that these three Codes described services that were not covered by the NHDW plan, and she was forwarding this email to her "upper management" to discuss with their counterparts at Petitioner. Services Provided by Respondent and Services Covered by NHDW Standard Contract Identifying the Codes at Issue An oddity of this case is the absence from the record of even a single recipient record of the service provided by Respondent. Petitioner has not disputed that the billed Codes aptly describe the services rendered, so the Codes provide the information necessary to describe the services provided by Respondent. The reimbursement claims cover a total of 11 Codes, not ten, as indicated by Mr. Young, according to Ms. Platt's email of April 29, 2013. By email to a program administrator dated July 10, 2013, Sheri Creel, a program analyst in the Office of Medicaid Program Integrity, listed the 11 Codes that Respondent billed. But Mr. Young's list is important because: 1) as noted above, by dollar amount, over 99% of the reimbursement claims involve the three Codes that he advised could be billed on a fee- for-service basis, and 2) possibly reflecting this fact, Respondent's August 2013 letter requesting a hearing asked only that Petitioner implement Mr. Young's determinations, including those adverse to Respondent. This means: 1) Respondent has not challenged overpayment claims based on Codes that Mr. Young determined were covered by the NHDW standard contract, and 2) Petitioner's claim for overpayment in this case is the total overpayment in excess of the $2587.38 that Respondent has conceded is due. Fortunately, Mr. Young's list was accurate as to the three Codes that he determined were not covered by the NHDW standard contract: H2017, H2019HR, and H0032TS. Because Petitioner has declined to implement Mr. Young's determination as to these three Codes, it is necessary to consider them in detail below. Mr. Young's list was also accurate as to three of the remaining seven Codes on his list: H2010HO, H0031HN, and H0031. A fourth Code on Mr. Young's list, H2000HP, probably contains a typographical error and should have been Code H2000HO. It is unnecessary to consider these four Codes because, as noted above, Respondent's request for hearing does not contest Mr. Young's determination that these Codes were covered by the NHDW standard contract. This leaves three Codes that Mr. Young incorrectly listed and one that he missed entirely. The three Codes that Mr. Young listed that were not billed by Respondent are H2000, H0031HO, and H2019; the Codes that Respondent billed were H0001, H0032, and H2019HQ. Mr. Young would have determined that Code H0001 was covered under the NHDW program and thus not reimbursable on a fee-for-service basis. He made this determination as to Codes H2000, H0031HO, and H2019, which are under Assessment Services in Appendix P of the Community Behavioral Health Coverage and Limitations Handbook, October 2004 (Coverage Handbook). Code H0001 is also under Assessment Services and is not materially different from the three Codes in Assessment Services that Mr. Young determined were covered by the NHDW standard contract. None of the three Codes that Mr. Young determined were reimbursable were under Assessment Services. It is therefore unnecessary to consider Code H0001 in detail below. Mr. Young would have determined that Codes H0032 and H2019HQ were not covered by the NHDW standard contract. Code H0032 is not materially different from Code H0032TS, which Mr. Young determined was not covered by the NHDW standard contract; both Codes are under Treatment Plan Development and Modification in Appendix P of Coverage Handbook. Code H0032TS is for mental health service plan followup or mental health treatment plan review, and Code H0032 is for mental health service plan development or mental health treatment plan development. Likewise Code H2019HQ is not materially different from Code H2019HR, which Mr. Young determined was not covered by the NHDW standard contract; both Codes are under Behavior Health Therapy Services in Appendix P of Coverage Handbook. Code H2019HR is for individual or family counseling and Code H2019HQ is for group counseling. The eleventh Code, which Mr. Young missed altogether, is Code T1015. It bears no resemblance to any of the Codes that Mr. Young considered because it is the sole Code in this case that is under Medical and Psychiatric Services in Appendix P of Coverage Handbook. It is thus necessary to consider Code T1015 in detail below.4/ Respondent's Services Billed Under Codes H2017, H2019HR, H2019HQ, H0032TS, H0032, and T1015 Of the six Codes in dispute in this case, Code H2017 is the most important because it accounts for the overwhelming majority of the 2,658 reimbursement claims and an even greater share of the total reimbursements paid to Respondent. The sole Code among the 11 to be under Community Support and Rehabilitative Services in Appendix P of Coverage Handbook, Code H2017 is "[p]sychosocial rehabilitation services, per 15 minutes" under the HIPAA description or "[p]sychosocial rehabilitation services" under the Medicaid description. Coverage Handbook explains that psychosocial rehabilitation services: are designed to assist the recipient to compensate for or eliminate functional deficits and interpersonal and environmental barriers created by their disabilities, and to restore social skills for independent living and effective life management. This activity differs from counseling and therapy in that it concentrates less upon the amelioration of symptoms and more upon restoring functional capabilities. It includes work readiness assessment, job development on behalf of the recipient, job matching, on the job training, and job support. Coverage Handbook 2-1-30. Psychosocial rehabilitation services must be provided by a person with no less a credential than a behavioral health technician under the supervision of a bachelor's level practitioner, substance abuse technician, or certified addictions professional. Id. These services must be documented with a daily service note and a monthly progress note. Id. at 2-1-31. As noted above, Codes H2019HR and H2019HQ are for "[t]herapeutic behavioral services" involving an individual, family, and group. Coverage Handbook explains that the purpose of individual and family therapy is to provide "insight oriented, cognitive behavioral, or supportive therapy." Id. at 2-1-25. This therapy must be provided by at least a master's level practitioner. Documentation must include the "topic, assessment . . ., level of participation, findings, and plan." Id. Group therapy is similar, but may be provided by a bachelor's level practitioner or certified addictions professional. As noted above, Codes H0032 and H0032TS, respectively, are for the development and review of a mental health service plan or mental health treatment plan. For the development of the plan, which would be Code H0032, Coverage Handbook explains that the "treatment plan is a structured, goal-oriented schedule of services developed jointly by the recipient and the treatment team." The treatment plan must be preceded by a "Brief Behavioral Health Status Examination" or "Psychiatric Evaluation" conducted by a physician. Coverage Handbook 2-1-15. For the review of the plan, which would be Code H0032TS, Coverage Handbook requires that the plan be reexamined no less often than six months and does not require an updated Brief Behavioral Health Status Examination or Psychiatric Evaluation. As to Code T1015, Coverage Handbook identifies two general services under Medical and Psychiatric Services: medication management and brief individual medical psychotherapy. It would appear that Code T1015 involves medication management, not medical psychotherapy, but Coverage Handbook's primary description of these services is the "prescribing, dispensing, and administering of psychiatric medications." Coverage Handbook 2-1-19. Coverage Handbook requires that Medical and Psychiatric Services be provided, at a minimum, by a "psychiatrist, other physician, physician assistant, or psychiatric ARNP." Leslie Lynch, Respondent's administrative director and part owner, testified that physicians never provide the psychosocial rehabilitation services billed under Code H2017, and about 90% of these claims involve services that are not recommended by physicians. Ms. Lynch testified that physicians never provide the behavioral therapy billed under Code H2019HR, and about 95% of these claims involve services that are not recommended by physicians; it is inferred that the same percentage applies to the behavioral therapy billed under Code H2019HQ. Ms. Lynch testified that physicians do not participate in providing or recommending the treatment plan review billed under Code H0032TS; it is inferred that the same limitations apply to the treatment plan development billed under Code H0032. Ms. Lynch's testimony as to these matters is credited. NHDW Standard Contract Services Included among Petitioner's exhibits is a brief excerpt of the standard contract between DOEA and MCOs operating NHDW plans (NHDW standard contract) for each of the years of the audit.5/ Presumably, Petitioner has determined that this excerpt describes the services covered by the NHDW program that most closely approximate the services actually provided by Respondent. The relevant provision, which is under the category of "acute- care services," provides that the NHDW standard contract includes only those community mental health services that are: "Community-based rehabilitative services, which are psychiatric in nature, recommended or provided by a psychiatrist or other physician." NHDW standard contract § 1.3.3.3. During the audit period, psychiatric, community-based rehabilitative services accounted for very few of the services, by dollar value, provided by MCOs under the NHDW standard contract. A broader category, community mental health services, accounted for little, if any, of the annual capitated rates calculated for the NHDW plans and their MCOs. After testifying that community mental health services totaled only $123,000 of the $172.3 million allocation in 2009 and $57,000 of the $250.2 million allocation in 2011, Tr. 25 and 29, Mathieu Doucet, an actuary with Milliman, Inc., who was responsible for developing the capitated rates for the NHDW program, opined that community mental health services are not provided by the NHDW plans. Tr. 28 and 33. Codes H2017, H2019HR, H2019HQ, H0032TS, and H0032 Are Not Covered by the NHDW Standard Contract; Code T1015 Is Covered by the NHDW Standard Contract As noted above, the NHDW standard contract imposed two conditions for coverage of services that are relevant to this case: 1) the service must be psychiatric in nature and 2) the service must be provided or recommended by a physician. If either of these conditions is unmet, the NHDW standard contract does not cover a service, leaving it reimbursable on a fee-for- service basis. Petitioner has failed to prove that the NHDW standard contract covered services under Code H2017. These psychosocial rehabilitative services are obviously not psychiatric in nature. Psychosocial rehabilitation helps a recipient compensate for his deficits and lead an independent life and does not focus on the treatment or amelioration of symptoms. Psychiatry treats mental disorders.6/ It would be a poor example of psychiatry that attempted neither treatment nor amelioration of symptoms; it would seem that psychosocial rehabilitation picks up where psychiatry leaves off. Because psychosocial rehabilitative services are not psychiatric in nature, they are not covered by the NHDW standard contract, regardless of whether 10% of the underlying services were recommended by physicians or 100% of the underlying services were rendered by physicians. By the end of the hearing, it seemed that Ms. Lynch would have the last--and only--word as to the extent to which any of the services had been recommended or provided by physicians. But, after the hearing, Mr. Young had--or relayed--the last word on this issue. Petitioner deposed Mr. Young on April 17, 2014. Previously having been deposed by Respondent, Mr. Young testified that, after his first deposition, he contacted Ms. Creel to get a list of Respondent's claims because he was concerned that the "fee for service claims potentially could cause problems in our Long Term Care program." Tr. 7.7/ He asked for a service- transaction summary that would show, by each claim submitted by Respondent, who had provided the service. Id. The summary is attached to the deposition transcript as an exhibit. The summary lists 2,658 service transactions and provides details from the CMS 1500 claim forms submitted for each transaction, such as recipient identifying information, date of service, reimbursement amount, "billing provider" name and identification number, and "rendering provider" name and identifying number, as well as, of course, the Code applied to each service transaction. The "rendering provider" for all but 62 of the service transactions is an "MD" named Noel A. Cabrera. The "rendering provider" for 60 of the remaining 62 service transactions is an "MD" named Antonio de Filippo.8/ Two of the service transactions show a "rendering provider" who is not a physician. On direct, Mr. Young never testified that physicians rendered these 2,656 services, nor did he withdraw his earlier determination that Codes H2017, H2019HR, and H0032TS were not covered by the NHDW standard contract. Instead, he testified about the CMS-1500, the information about the rendering provider to be included in item 24J of the CMS-1500, and, of course, the summary, which he sponsored as an exhibit. The intended implication of his testimony and the summary was that physicians had provided all of the services but two, so at least this condition of coverage under the NHDW program had been met. During cross-examination, Mr. Young admitted that Coverage Handbook provides generally that community behavioral health services are provided under the authorization of a group's treating practitioner,9/ and provider reimbursement claims for community behavioral health services must include the treating provider's individual Medicaid number, regardless of who actually renders the service. Id. at 21. In this testimony may lie a hint of why Respondent listed a physician on each CMS-1500 as the referring provider. In any event, for whatever reason that Respondent entered physicians' names in item 24J, the CMS-1500 does not establish that physicians provided nearly all of the services at issue in this case. Several problems preclude any reliance on Mr. Young's testimony or the summary as proof of an assertion to the effect that physicians provided the services in 2,656 claims. First, the inferential evidence of Mr. Young's testimony and the summary is outweighed by the direct evidence of Ms. Lynch's testimony that physicians provided none of the services, at least as billed under Codes H2017, H2019HR, and H0032TS. Ms. Lynch was in the position to know this fact. Mr. Young's "knowledge" is derived from the summary, which is derived from the CMS-1500s, whose preparation, as to the rendering provider, may have been for a reason covered during the cross-examination of Mr. Young. Second, a number of Codes explicitly permit or stipulate the use of a provider who would be less-educated and presumably lower-compensated than a physician. The suggestion that Respondent would use more expensive physicians to provide thousands of service transactions under these Codes does not make any sense and further undermines Petitioner's reliance on the summary to claim that the rendering provider was a physician in 2,656 of the 2,658 service transactions. Third, for the reasons noted in the Conclusions of Law, Mr. Young's testimony during his second deposition, which was essentially a relation of the contents of the summary, and the summary itself were improperly noticed by Petitioner and thus inadmissible. The timing of these items of evidence-- posthearing, when Respondent would have no chance to answer the implications arising therefrom--underscores the importance of adequate notice of the use of the summary. Petitioner has also failed to prove that the NHDW standard contract covered services under Codes H2019HR and H2019HQ. Like psychosocial rehabilitation, individual and group behavioral therapy is not "psychiatric" in nature.10/ Appendix P mentions "psychotherapy"--Code H2010HE, under Medicaid, is for "[b]rief individual medical psychotherapy" and is under Medical and Psychiatric Services. But individual and group therapy provided by someone with not more than a master's degree (individual and family) or a bachelor's degree or certification as an addictions professional is not demonstrably psychiatric in nature. Because individual and group therapy services are not demonstrably psychiatric in nature, they are not covered by the NHDW standard contract, regardless of whether 5% of the underlying services were recommended by physicians or 100% of the underlying services were rendered by physicians. But, for the reasons noted immediately above, Petitioner has also failed to prove that Respondent provided these services through physicians. Lastly, Petitioner has failed to prove that the NHDW standard contract covered services under Codes H0032TS and H0032. Under the HIPAA descriptions of these Codes, nonphysicians are to develop and follow up on mental health service plans. If the treatment team, as testified by Ms. Lynch, does not routinely include a physician, it is difficult to understand how the services under these Codes could be psychiatric in nature. Because the development and review of mental health treatment plans by the treatment teams, which routinely do not include a physician, are not psychiatric in nature, they are not covered by the NHDW standard contract, regardless of whether 100% of the underlying services were rendered by physicians. But, for the reasons noted immediately above, Petitioner has also failed to prove that Respondent provided these services through physicians. Code T1015 is different from the other Codes just discussed because the underlying services, which involve medication management, must be provided by a physician, although not necessarily a psychiatrist. Services under Code T1015 thus satisfy one of the conditions required for coverage under the NHDW standard contract. Services under this Code are also psychiatric in nature, as in the prescribing, dispensing, and administering of "psychiatric" medication. Petitioner has thus proved that the NHDW standard contract covered services under Code T1015. In summary, the results are almost identical to the determinations of Mr. Young and Ms. O'Malley in 2013. Codes H2017, H2019HR, and H0032TS are not covered by the NHDW standard contract so they were reimbursable on a fee-for-service basis to Respondent. The same is true for Codes H2019HQ and H0032, which, although unaddressed by Mr. Young, are insubstantially different from Codes H2019HR and H0032TS, respectively.11/ Based on Mr. Young's advice, with which Ms. O'Malley immediately agreed, only about 1% of the total overpayments sought by Petitioner were actually overpayments. As a result of the recommended order, if adopted by the final order, the total of actual overpayments will actually decrease by a small amount, but, essentially, Respondent will remain entitled to the 99% of the reimbursements that it staked out in its August 2013 letter requesting a hearing. Lack of Necessary Material Facts Supporting Petitioner's Claim for Overpayment in Excess of Amount to Which Respondent Agreed in August 2013 Letter Requesting Hearing At the time of the transmittal of the agency files to DOAH: 1) Mr. Young had advised that Codes H2017, H2019HR, and H0032TS were not covered by the NHDW standard contract and thus were reimbursable to Respondent on a fee-for-service basis, and 2) Respondent had indicated that a hearing would not be necessary if Petitioner would accept Mr. Young's determinations, which reduced by over 99% the total overpayment sought by Petitioner in the PAR and FAR. The transmittal thus constituted Petitioner's rejection of Mr. Young's advice and claim to overpayments in excess of Respondent's concession of $2587.38 of overpayments. As a result of this hearing, Petitioner has proved an overpayment that is slightly less than the amount that Respondent conceded was due. At the time of file transmittal, Petitioner knew or should have known that its claim to overpayments in excess of $2587.38 was not supported by the necessary material facts. Petitioner's program analyst with the most knowledge of the NHDW program had so advised. And Petitioner has produced not a single piece of analysis contradicting Mr. Young's analysis, which was confirmed by Ms. O'Malley without hesitation. In the PAR and FAR, Petitioner contented itself with the establishment of a threshold issue over which there is no controversy whatsoever: matching Petitioner's recipients with enrollees of NHDW plans. Through these critical stages, Petitioner completely ignored the two material facts that were necessary to support its overpayment claim in excess of $2587.38: Respondent's services were psychiatric in nature, and Respondent's services were recommended or provided by physicians. In discovery and at hearing, three of Petitioner's employees testified. The first was Mr. Young, who was deposed by Respondent prior to the hearing. During his deposition on February 24, 2014, Mr. Young identified the April 2013 email and admitted that it was a "fair representation" of his conversation with Ms. Platt. Id. at 32; Depo. Ex. 6. During the deposition, Mr. Young seemed to take a circuitous route to reaffirming his original opinion, but he eventually did. As Mr. Young now understood the issue, a number of NHDW enrollees had "community mental health claims" that were improperly paid on a fee-for-service basis. Tr. 8.12/ In examining the issue, Mr. Young determined that the claims billed by Respondent were "in the range of procedure codes that we would expect a community mental health provider to use." Id. at 10. The problem was that "a number of mental health providers providing these behavioral health services had billed the state plan program as opposed to sending their bills to the [NHDW] plans for reimbursement." Id. at 24. According to Mr. Young, Petitioner had instructed these providers that "they're supposed to check the person's Medicaid eligibility and if they had done a thorough job of that, they would become aware that this person was a [NHDW] plan member and they needed to check with the plan to see if there was coverage of their particular service." Id. At this point of his testimony, Mr. Young was previewing the argument to be presented in testimony at hearing by Petitioner's two witnesses from the Office of Medicaid Program Integrity: Respondent was required either to obtain prior authorization from an MCO before providing services to an MCO's enrollee or to invoice the MCO, not Petitioner, to obtain compensation for services that it rendered to an enrollee. These arguments are rejected below in the discussion of the testimony of these two witnesses. At one point, Mr. Young testified that he was unable to answer a question as to whether the procedure codes that Respondent billed to Petitioner were for services for which the NHDW standard coverage required coverage. Id. at 28-29. Mr. Young said that he was unfamiliar with the procedure codes that Respondent billed and stated that he would have to rely on Petitioner's mental health program specialist for further information. Id. at 30. Under the facts of this case, including Mr. Young's repeated determinations that Codes H2017, H2019HR, and H0032TS were not covered by the NHDW standard contract, this testimony was evasive. At another point, though, Mr. Young acknowledged that the NHDW plans were required to cover specific community based mental health services, and, if a NHDW plan enrollee required another Medicaid-covered service not covered by the NHDW plans, her service would be reimbursed on a fee-for-service basis. Id. at 24-25. Mr. Young also conceded that, if Codes had not been included in the capitated rate to be paid each MCO in the NHDW program, then the NHDW plans would not be required to pay for the services underlying these Codes. Id. at 38. And, eventually, Mr. Young admitted that, as he had advised previously, Respondent's reimbursement claims for Codes H2017, H2019HR, and H0032TS were properly paid on a fee-for- service basis. Id. at 42. The net effect of Mr. Young's deposition was that he confirmed that Codes H2017, H2019HR, and H0032TS were not covered under the NHDW standard contract, and Respondent could thus obtain fee-for-service reimbursements for these services billed to enrollees of MCO's NHDW plans. Petitioner called two witnesses at hearing. Instead of addressing whether Respondent's services were psychiatric in nature and recommended or provided by a physician, these witnesses addressed the arguments that Mr. Young previewed during his deposition. These arguments are based on misreadings of the underlying Medicaid documents, which in no way relieve Petitioner of the necessity of proving that Respondent's services were psychiatric in nature and were provided or recommended by physicians. Pamela Fante, a program administrator in the Office of Medicaid Program Integrity, testified as to the scope of the audit. She stated: "the audit was an overview, not particularly [sic] to this particular provider. It was the issue that services that were to be covered by the [NHDW], which is a managed care program, had possibly--had erroneously been paid as fee-for-service." Tr. 35. Ms. Fante added that "we started looking to see whether any of those services [covered by the NHDW program] were billed and paid fee-for-service." Id. To this point, Ms. Fante is merely describing the process by which the auditors matched Respondent's recipients with enrollees of MCOs operating NHDW plans. Ms. Fante testified Respondent was obligated to determine if a particular recipient was a NHDW enrollee and, if so, "contact the managed care plan to request prior authorization." Id. at 38. Ms. Fante described the authorization process. She testified that Respondent needed to contact the relevant MCO to determine if Respondent was "contracted with [the MCO]" and if the MCO would permit Respondent to provide the service--with the expectation of payment from the MCO. Id. at 39. Ms. Creel's testimony was largely a replay of Ms. Fante's prior authorization/MCO-billing testimony. Ms. Creel testified that Respondent was obligated to determine if the patient was enrolled with an MCO--essentially, in a NHDW plan. Id. at 113-14. Ms. Creel testified that, if the patient was a NHDW enrollee, Respondent then had to "seek authorization from the HMO in which the recipient is currently enrolled prior to providing service unless it's an emergency." Id. at 115 and 156-57. Ms. Creel also addressed the situation in which Respondent sought prior authorization from an MCO, obtained authorization, and then billed the MCO for the service. Id. at 127. Ms. Creel explained: "If [the MCO] denied [prior authorization] as a covered service and [the patient] is a Medicaid recipient, then the provider [e.g., Respondent] could seek reimbursement with Medicaid fee-for-service." Id. at 127-28. In one respect, Ms. Creel goes further than Ms. Fante. Ms. Creel testified that Respondent could seek reimbursement on a fee-for-service basis, if the MCO denied Respondent's request for prior authorization due to a lack of coverage under the NHDW standard contract. Requiring the provider to deal with the MCO under these circumstances seems to raise the MCO to gatekeeper status by treating the MCO denial of coverage as a precondition to reimbursement on a fee-for-service basis, even in situations in which the NHDW standard contract does not cover the service. In any event, none of this prior-authorization/MCO- billing testimony offers any factual support whatsoever for the overpayment claims of Petitioner. This testimony either assumes that the NHDW standard contract covers the service in question or adds prior authorization and MCO billing as conditions for the reimbursement of Respondent's service, even if the NHDW standard contract does not cover the subject service. When Respondent argues in its proposed recommended order that it is allowed to "roll the dice," Respondent is saying that it is allowed to provide the Medicaid-covered service without dealing with the MCO that has enrolled Respondent's recipient: if the NHDW standard contract covers the service, Respondent loses, and if the standard contract does not cover the service, Respondent wins. A close examination of Petitioner's position is that Respondent loses both ways. If the NHDW standard contract covers the service that Respondent has provided, Petitioner has no obligation to reimburse Respondent because doing so would mean that Petitioner is paying twice for the same service. This scenario is entirely irrelevant to the present case, and the focus of Petitioner's witnesses on the prior authorization/MCO-billing issues cannot possibly address the coverage scenario because, if Respondent's service were covered by the NHDW standard contract, Respondent is not going to be reimbursed or, if reimbursed, is going to have to repay the reimbursement. Obtaining prior authorization from the MCO or billing the MCO might spare Respondent the financial loss, but that is a risk that Respondent may choose to run, if it provides the service first; the Medicaid documents do not prohibit Respondent from proceeding in this fashion. The scenario that Petitioner's witnesses are really addressing is the one in which the NHDW standard contract does not cover the service that Respondent has provided: if, through a misapplication of the Medicaid documents, Petitioner were to avoid reimbursing Respondent for such a service, the result is, not that Petitioner avoids paying twice for a service, but it avoids paying at all for a service. To achieve this dubious result, Petitioner turns its focus from the underlying coverage issue and posits prior authorization/MCO-billing as prerequisites for reimbursement for all services, thus assigning to the MCO a gatekeeper role, even for services that it does not cover under the NHDW standard contract. But this illogical construction of the Medicaid documents finds no support in the documents themselves. To support their prior authorization/MCO-billing testimony, Petitioner's witnesses cite to various provisions in the Medicaid documents, but misread each one of them. The Medicaid Provider General Handbook, January 2007 (Provider Handbook)13/ addresses HMOs. Provider Handbook requires a provider to verify a recipient's eligibility for Medicaid and whether the recipient is enrolled in an HMO. Provider Handbook 1-26. Provider Handbook adds: "If a recipient is an HMO member, the provider must seek authorization from the HMO . . . prior to providing services." Id. However, the next paragraph explains that this requirement applies only for services covered by the HMO: "Providers must seek authorization and reimbursement from the HMO for services the HMO covers for its members." Id. Provider Handbook also states: "Medicaid reimbursement is restricted when a Medicaid recipient is enrolled in a managed care program. A provider must verify if the recipient is enrolled in a managed care program prior to providing services." Id. at 3-9. However, the next paragraph adds: "For certain managed care plans such as HMOs and PSNs, the provider must receive authorization for the services that are included in the plan and bill the plan directly." Id. Again, the condition attached to obtaining prior authorization from, and billing, the managed care program is that the subject service is "included in the plan." More broadly, Provider Handbook endorses Respondent's reading of its rights and responsibilities in this case. Provider Handbook14/ explains that fee-for-service reimbursement results in the payment of a fee to a provider for each procedure performed and billed within Medicaid policy limitations, id. at 1-3, and capitation reimbursement is for HMOs and other MCOs that are prepaid a fixed amount monthly for each enrolled recipient. Id. at 1-4. Capitation reimbursement is calculated using "actual fee-for-service Medicaid claims experience for each eligibility category in the plan's operating area." Id. at 1-32. Addressing managed care programs, Provider Handbook notes that most Medicaid recipients are required to obtain services through such programs, but adds: "Recipients who aren't required to enroll in managed care obtain services through the Medicaid providers of their choice on a 'fee-for-service' basis." Id. at 1-19. Nor does the Medicaid Provider Reimbursement Handbook, CMS-1500, July 2008 (CMS-1500 Handbook) support Ms. Fante's testimony. CMS-1500 Handbook provides a checklist to be reviewed before submitting a CMS-1500 claim form. Among the checklist items are obtaining HMO authorization, "if applicable"; obtaining service authorization, "if applicable"; and obtaining service authorization, "if applicable." CMS-1500 Handbook 1-10. For the reasons discussed above, these requirements are applicable only if the HMO or other entity provides coverage for the service that the fee-for-service provider is claiming reimbursement. By the conclusion of the hearing, Petitioner had produced absolutely no evidence on the necessary material facts of whether the subject services repeatedly approved by Mr. Young for reimbursement were psychiatric in nature and whether these services were provided or recommended by a physician. Posthearing, Petitioner turned, once more, to Mr. Young to solicit evidence as to the issue of whether a physician provided or recommended the services at issue. For the reasons already stated, the multiple problems with this evidence preclude a finding that Petitioner thus avoided liability under section 57.105, Florida Statutes. But even if this evidence constituted a material fact sufficient to support the issue of whether a physician provided or recommended the services, it did not constitute a material fact sufficient to support Petitioner's claim because it fails to address the issue of whether the service was psychiatric in nature. As noted above, these issues are conjunctive, not disjunctive. Without any evidence that, most importantly, psychosocial rehabilitation is psychiatric, Petitioner failed even to introduce evidence necessary to its overpayment claim for the simple fact that there is none.
Recommendation It is RECOMMENDED that Petitioner enter a final order determining a total overpayment for the services billed by Respondent during the audit period that are not under Codes H2017, H2019HR, H2019HQ, H0032TS, and H0032.
The Issue The issue is whether Respondent properly reclassified Petitioner's position as a Senior Management Analyst Supervisor from career service status to selected exempt status pursuant to Sections 110.205(2)(x) and 447.203(4), Florida Statutes (2001).
Findings Of Fact Petitioner worked for Respondent for approximately 30 years. He was a Board Certified Behavior Analyst and had training as a Risk Manager. During his state employment, Respondent became known as Respondent's expert for the Baker Act, Chapter 394, Part I, Florida Statutes (Baker Act). The Baker Act sets the standard in Florida for determining whether people can be involuntarily examined and treated within public and private mental health facilities. Petitioner's work as Respondent's Baker Act expert involved very independent work. He performed extensive research related to the laws of other states in the mental health area. He analyzed and made recommendations on subjects such as misuse of seclusion and restraints, the absence of documentation or doctor's orders, and the availability of medication upon release from a mental health facility. Petitioner's research and review of national accreditation standards led to the development of standards for state-wide Baker Act procedures and associated clinical care in state-run mental health receiving and treatment facilities. Ensuring compliance with these procedures and/or standards impacted state employees administering state facilities. Petitioner reviewed professional journals to learn federal block grant requirements. Petitioner's research and recommendations often resulted in proposed amendments to state law and associated Florida Administrative Code rules. Petitioner's assignments included answering constituent requests about the Baker Act from stakeholders on behalf of legislators and the Governor's Office. He conducted public hearings on the subject and gathered comments from a variety of sources, including but not limited to, the Florida Psychiatric Society, the Florida Psychological Society, the National Alliance on Mental Illness, the Advocacy Center for Persons with Disabilities, the Florida Council for Community Mental Health, and the Florida Alcohol and Drug Abuse Association. In other words, Respondent relied on Petitioner to answer inquiries about the Baker Act from the following: (a) families with members who have mental illness; (b) Respondent's district staff members; (c) the staff members of private provider agencies; (d) labor unions; (d) trade associations; (e) the judiciary; (f) law enforcement; and (g) legislative staff. To say the least, Petitioner's duties regarding the Baker Act were not of a routine clerical or administrative nature. Sometime after 1997, Respondent reorganized its adult mental health unit into two sections. The state mental health treatment facilities constituted one section consisting of six or seven state-operated or state-contracted facilities for people needing long-term care. The other section consisted of community mental health facilities that provided mental health services to people in communities, including people in crisis or with forensic involvement. After the reorganization, Petitioner worked primarily in the adult community mental health section with private providers. Petitioner worked with Ron Kizirian, his counterpart in the state mental health treatment facilities section. Petitioner used his Baker Act expertise, working as a team with Mr. Kizirian, to coordinate and address all issues state-wide regarding the Baker Act. Respondent's staff generally considered the adult community mental health services to be more progressive in attempting to provide patients with appropriate services. The state institution services were typically characterized as reactive, custodial, and generally, not positive. Petitioner's duties after the reorganization included explaining the things he did in the community side so that the institutional side would understand the concepts and issues. At the time of the reorganization, there were approximately 550 to 600 private, not-for-profit community mental health providers with state contracts. The adult community mental health section managed these contracts. Petitioner's duties included engaging in preliminary contract discussions with private providers, clarifying issues, and generally participating in the development of the contracts and their associated budgets and grants. He also was involved in recommending amendments to the contracts. As a contract manager, Petitioner monitored the activities of private providers. He initiated corrective action procedures. Petitioner's duties included the following: (a) making sure private contractors stayed within their budgets; (b) ensuring that private contractors agreed to performance standards; (c) pre-auditing the vouchers of vendors; and (d) submitting vouchers for payment. Petitioner's job included investigating high profile events on Respondent's behalf. For instance, Petitioner was sent to investigate alleged abuses in crisis stabilization units in Orlando, Florida. Petitioner would then draft a report for his superiors. Petitioner would often represent his superiors in meetings. Petitioner also performed as acting supervisor in the absence of his immediate supervisor. On or about October 1, 2000, Petitioner was a career service employee, serving as an Operations and Management Consultant. On March 6, 2001, Respondent changed the title of Petitioner's position to Senior Management Analyst II and then back to Operations and Management Consultant on the same day. On March 16, 2001, Petitioner's position changed again to Senior Management Analyst II. On June 27, 2001, and effective July 1, 2001, Petitioner's position title was reclassified to Senior Management Analyst Supervisor, a selected exempt service position. Petitioner was serving in that capacity when Respondent terminated his employment on December 3, 2002. Petitioner never supervised any other employees except to the extent that he served as acting supervisor in his immediate supervisor's absence. He signed a performance evaluation on March 27, 2002, indicating that critical elements involving directing leadership, staffing, performance appraisal/feedback and discipline administration did not apply to his performance for the rating period from October 30, 2001, to March 6, 2002. Petitioner performed the same duties and functions before and after reclassification from career service to selected exempt services. At the time of reclassification, Petitioner inquired of his immediate supervisor why Respondent changed his position from career service to selected exempt service. The immediate supervisor referred Petitioner's inquiry to next higher level supervisor who advised Petitioner not to challenge the determination but to "just keep his job." During the discovery phase of this proceeding, Respondent contended that Petitioner's position was reclassified for the following reason: Petitioner's position was reclassified to Select Exempt Service because his position was managerial with [sic] the meaning of Section 447.203(4), Florida Statutes. Petitioner's duties and responsibilities as Senior Management Analyst Supervisor was not of a routine, clerical or ministerial nature and required the exercise of independent judgment and the position also required the Plaintiff [sic] to develop performance guideline for the state mental health facilities, supervise adult mental health staff and facilitate resolution of complex programmatic, management, administrative or regulatory issues affecting state mental health facilities and districts. During the discovery phase of this proceeding, Respondent produced a generic selected exempt service position description for a Senior Management Analyst Supervisor. The position description contains the duties and responsibilities for senior staff in Respondent's state mental health facilities section and Respondent's adult community mental health facilities section. The position description sets forth some of Petitioner's duties relative to the Baker Act for state-wide public and private mental health institutions and/or facilities and relative to other mental health issues in adult community mental health facilities as follows: (a) provides consultation to the state mental health treatment facilities and districts on operational and programmatic mental health system issues; (b) facilitates resolution of complex programmatic, management, administrative or regulatory issues affecting state mental health treatment facilities and districts; (c) develops/coordinates development of performance guidelines for state mental health treatment facilities; (d) reviews/analyzes data and develops written reports as needed; (e) coordinates or participates as a member of various workgroups and project teams to address issues affecting provision of mental health services within the state; (f) assists with negotiating or developing contracts with private providers as needed; (g) prepares various reports and correspondence; (h) assists with the development of budget and rate amendments for mental health entities; (i) develops and utilizes consultant expertise as need in various projects; (j) researches information regarding mental health programs/systems; and (k) provides on-site visits to districts and state facilities to provide technical assistance regarding administrative and/or programmatic issues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner's position of Senior Management Analyst Supervisor was that of a select exempt employee. DONE AND ENTERED this 3rd day of March, 2008, in Tallahassee, Leon Country, Florida. S SUZANNE F. HOOD 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2008. COPIES FURNISHED: Jerry F. Traynham, Esquire Patterson & Traynham 315 Beard Street Tallahassee, Florida 32315-4289 Juan Collins, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact After respondent Debra T. Acosta and her husband Joe, a noncommissioned Air Force officer, the parents of Joseph M., 16 at the time of hearing, Jason M. (13), Shawn W. (9), and Tisouli (6), applied to HRS for a day care center license, they were required to have their fingerprints taken and to undergo a background check or "screening." The background check turned up a report of an investigation Air Force personnel had conducted on account of information Carla Burrell, formerly known as Carla Knight, had supplied. The first two numbered paragraphs of the report read: On 2 Mar 88, SSgt CARLA K. BURRELL, USAF Clinic, RAF Bentwaters (RAF), UK provided the following information: She arrived at RAFB from Eglin AFB (EAFB), FL on 21 Apr 85. She was stationed at EAFB from Jan 83 until Apr 85. While stationed at EAFB, her daughter, Angela Kristen Knight, female born: 21 Jan 80, VA, Civ, SSAN: 066-70-1577 (hereafter referred to as VICTIM) stayed with a babysitter during the day. The babysitter was identified as DEBRA ACOSTA, dependent wife of SUBJECT who resides at 318 Blackjack Court, EAFB, FL. DEBRA ACOSTA babysat for several families. After arrival at RAFB, VICTIM entered school and seemed to be worried about something but BURRELL wasn't sure of what it was. According to BURRELL, VICTIM received briefings in school about sexual abuse and was told it wasn't nice for adults to touch children in certain places. This led VICTIM to confide in BURRELL that while they had been stationed at EAFB, SUBJECT would make VICTIM and other young females being babysat by SUBJECT's wife take off their clothes and lie on the bed. On numerous occasions, SUBJECT had placed his hands on VICTIM's bottom and had placed his hands between VICTIM's legs. SUBJECT had touched VICTIM's vagina but had never actually penetrated her vagina. SUBJECT has done the same thing to other female children, but VICTIM stated SUBJECT didn't do anything to boys. In addition, VICTIM told BURRELL SUBJECT would drop his pants and underwear and would place his penis between the legs of the females but did not insert his penis into their vaginas. On 6 Mar 88, VICTIM was interviewed by SA STANLEY B. CRISP and SA BETTY J. WILKINS in the presence of her mother. VICTIM provided essentially the same information as was provided by her mother on 2 Mar 88. VICTIM provided the following additional information not previously reported by her mother. SUBJECT had made her and other young females go into the bedroom at the same time, sometimes even with DEBRA ACOSTA being at home. VICTIM stated however that DEBRA didn't know what SUBJECT was doing. At other times DEBRA wouldn't be at home when the incidents took place. VICTIM couldn't recall the names of the other children who were involved, but stated there were others in the bedroom at the same time. VICTIM stated SUBJECT had never hurt her and had never threatened her with harm. SUBJECT had told the children that they shouldn't tell anyone about what he was doing to them. VICTIM said she wasn't afraid of SUBJECT. The bedroom used was described by VICTIM as an upstairs, spare bedroom. SUBJECT had never made the children go into his bedroom. VICTIM had never told anyone about the incidents until she was told in school of the actions of SUBJECT were wrong. Petitioner's Exhibit No. 7. In February of 1988, Mary Vinyard had given respondent and her husband a letter she and her husband had received from Ms. Burrell. Respondent's Exhibit No. 6. This letter reads: Tom and Mary, Remember me? . . . I'm sorry to say the reason I'm writing is because of a concern I have. I've had nothing but problems with Krissy ever since we got to England. She's doing very well in school, however her behavior has gotten to the obnoxious state. Recently she was referred to a child psychiatrist at Lakenheath (Bentwaters doesn't have one). The Dr. there seems to think part of Krissys problem is that there has been some sort of sexual abuse in the past. She makes up stories, so I have no way of being certain of what she says. Last week after talking to the Dr, on the way home, Krissy suddenly said there had been someone in Florida that had done things he shouldn't have done. She said it was Joe, Debra's husband. I at first couldn't believe it, but she went on to talk about things an 8 year old child really should have no knowledge of. I really don't know what to think however I really don't want to screw up anyone's life. We don't see the psychologist again until next week. I called him and told him of this new development, and he said after two years nothing could be done anyway. I don't believe that. The Air Force seems to be taking a rather relaxed view on this. The reason I'm writing you is to inquire if your children are still in Debra's care. Are you having any trouble with either of them, ightmares, bedwetting, whining? Please do write me back. An answer of any sort will help put my mind at ease. If it is just conjecture, no harm is done. If there is something going on, and Debra is still babysitting, it needs to stop. I just don't want any other parents to go through what I'm going through right now. You may or may not want to consider another babysitter. Please don't tell Debra I wrote, I always thought the world of her and I know the kids loved her. I don't wish to upset their family, especially if this turns out to be nothing; but I'm very suspicious. The day after the Vinyards gave this letter to respondent, Mr. Acosta took it to his commanding officer, Captain Gilmore, and protested his innocence. Captain Gilmore made a copy of the letter and launched the investigation that eventuated in the Office of Special Investigations (OSI) report, set out in part above. Petitioner's Exhibit No. 7. No action was taken against Mr. Acosta as a result of the Air Force's investigation. He has consistently denied Krissy's reported allegations, and did so under oath at the formal hearing in this case. After the OSI report came to HRS' attention, an HRS employee decided "that Debra could get licensed, to continue with the paperwork" (T.370) but as to her only. Eventually HRS did license Debra Acosta to operate Kare Free Day Care (KFDC) at 15 Eglin Street in Fort Walton Beach. KFDC opened in July of 1990. Nobody from HRS asked Mr. Acosta to agree to stay off the day care center premises and neither he nor Ms. Acosta agreed that he would. His presence during various HRS inspections elicited no official, contemporaneous response. T.406-7. Another Allegation Reported Michelle G'Sell dropped her four-year-old daughter Amber and her two- year-old son Adam off at the Acosta family home about seven o'clock in the morning on Mother's Day, May 12, 1991, in keeping with the arrangement she had made with Ms. Acosta the afternoon before, when she picked up her children at KFDC, after their first stay there. At quarter past three Sunday afternoon, Ms. G' Sell again picked Amber and Adam up at KFDC. Ms. Acosta had taken them (and her own two youngest children) to KFDC that morning after feeding Shawn and Tisouli breakfast. As Ms. G'Sell walked to her car with her children "around three steps out of the house" (T.113) Amber said, "Mommy, my twat hurts." Id. Asked when, the child "said when she pees." Id. According to her mother, when they had reached the car, Amber said, "He touched me," id., and, asked who had touched her, pointed to Mr. Acosta, who was standing on the roof of the KFDC building, "and said, 'Him.'" Id. But Jason and Mrs. Acosta (T.512) testified that Mr. Acosta was not at KFDC when Amber left, and Jason testified that his father had not been on the roof that day. T.313. The next morning Ms. G'Sell dropped Adam off at KFDC and signed Amber in, having arranged for her to be brought to KFDC later in the day. But, after somebody at work told her, "You must believe her, and you must report it," (T.115) she called her father and asked him not to take Amber to KFDC. She also reported to HRS that Mr. Acosta had sexually abused Amber the day before, and HRS began an investigation eventuating, according to HRS, in FPSS Report No. 91-050519, "alleging sexual abuse on a female child who was enrolled at KFDC . . . [allegedly perpetrated by] Joe A., the husband of D. A." HRS' Proposed Recommended Order, page 3. On May 17, 1991, Mr. Acosta was arrested on criminal charges of sexually abusing Amber, charges which remain pending. Admitted to bail on condition that he stay away from children under 18 years of age, he was rearrested for being in the presence of his own children. (Neither he nor Mrs. Acosta had realized that their children fell within the reach of the condition.) He has since been readmitted to bail and moved out of the family home. HRS also launched a separate, exhaustive investigation into the operations of KFDC which, while apparently not turning up any other allegation of sexual misconduct, gave rise to the allegations on the basis of which HRS seeks to revoke KFDC's day care center license. Husband Occasionally Helped Out While Anna Maria Root worked at KFDC in the winter and spring of 1991, Joe Acosta brought her eight-year old son to the Center after school, on the same run on which he picked up his own children. T.218. He may have brought another child, too, aside from the Root child and his own children. T.272. On two or three occasions Joe Acosta transported Shawn Holbert to school. T.379. He drove a brown van, "the one we were licensed to transport children in." T.379. After KFDC's initial licensure, Ms. Acosta requested an extension or expansion of the license to authorize KFDC to offer child care in the evening, but HRS denied the request. When KFDC closed for the day, children still there were taken to the Acosta home. A "couple of times," (Hoffman Deposition, p.9) Joe Acosta drove the van to the Acosta home after KFDC closed with as many as four or five children who were to be cared for there, id. 9, 56, "and Debra would stay and close up." Waller Deposition, p.14. Twice Mr. Acosta was alone with the children when Stacy Stowell collected her sons, Matthew and Aaron, at KFDC. T.12. But Lynn Hoffman, an employee, was never aware of his being alone with children. Hoffman Deposition, p.11. Nor was Julie Ann Merrill, who worked at KFDC from September to December 1990. Merrill Deposition, p.5, 20-21. It rarely happened. The morning after a fire at the Acosta home, Ms. Acosta sent Mr. Acosta to open up KFDC, and he was present when at least one child arrived, before either Ms. Acosta or Vicki Waller got there. Sole Supervisors Under Age and/or Uncertified When Vicki Waller, then 19 years old, began working for KFDC, neither she nor the Acostas were aware of the HRS rule forbidding leaving the children in the unsupervised care of anybody under 21 years of age. The three of them learned of the requirement in a 20-hour course they took together in the fall of 1990. Before that time, Ms. Waller had been left in charge mornings "from about 7:00 to 7:30," (Waller Deposition, p.6) and all day on one or two Saturdays. She was not left in charge after they learned of the rule against it. Ms. Waller did not have first aid or CPR certification when she took sole responsibility for children at KFDC. Chris Fitzpatrick worked as the only person caring for children at KFDC one Saturday, although she had not yet taken the first aid course she had signed up for. She also lacked CPR certification. Similarly untrained and uncertified, Denise Carla Yates had charge of the children by herself sometimes on Saturdays. Robin Lynn Bedmar was the only person responsible for the children on two or more Saturdays, even though her CPR certification had expired. Sometimes Sandra Lynn Hoffman, who did not have CPR training, was responsible for children at KFDC by herself, or shared responsibility only with Ms. Waller. Chris Fitzpatrick, Denise Caren Yates, Robin Lynn Bedmars and Sandra Lynn Hoffman were 21 or older, as far as the record shows, when they were left alone with the children. Occasionally Substandard Supervision Until a refrigerator was installed in the infant room, the worker supervising infants left them unattended in order to get milk from the kitchen. Similarly, in order to change an older (but disabled) child's diapers, the person responsible for his age group left his peers unattended to take him to a mat in another room. Sometimes only one KFDC employee supervised more than six infants for a full day. On at least four occasions, and possibly on as many as eight occasions (T.71; Waller Deposition p.9) there were more than six babies in the infant room, which had six cribs and two pallets, even after the playpen was removed at HRS's behest. T.71. Towards the end of the day infants along with older children, sometimes aggregating as many as ten or more, were left in the care of a single KFDC employee. Children played outside, sometimes without adult supervision. Twice, Jason Acosta was outside with children at KFDC "sort of keeping an eye on things while," (Waller Deposition, p.10) his mother was inside with other children. Respondent once asked Jason and Joseph to stay in the baby room with the children there. T.44. Hygiene The parents of two children complained to Ms. Acosta that their children's diapers were dirty when they picked the children up; and the grandmother of a third testified that, at least twice a week, he had "poopy pants" (T.30) when she came for him at KFDC, or at least by the time she had driven him some ten minutes away. Generally, children at KFDC with soiled diapers got fresh ones promptly. Ms. Acosta had extra diapers and clothes for the children on hand. Nutrition For every day a child who ate lunch failed to bring his own, KFDC charged his or her parents a dollar. But some or all of the food supplied these children came from the lunch bags sent with other children. Ms. Acosta or an employee opened the bags and divided the food onto plates without regard to the intended recipients' (or their parents') desires. Mornings and afternoons snacks were almost always provided to the children, but food with which to prepare snacks was occasionally unavailable to staff. The menu sometimes posted at KFDC was not always followed. Once, after two or three children drank from the same glass, respondent refilled it and gave it back to a child, perhaps unaware of its history. Before she obtained the KFDC license, Ms. Acosta registered her home as a family day care center, and the home was inspected by the fire department. T. 497. After her licensure, as before, Ms. Acosta cared for Kyle Dunbar, who has cerebral palsy, at her house, while his mother worked evening shifts. BreAnn's mother, Paige Kelso, also worked nights and left her child in respondent's care when she did. Respondent charged for taking care of these children and sometimes had them both in her home at the same time. Friends of her children spent the night sometimes, and she occasionally took care of a friend's two sons as a favor. Other Matters Ms. Acosta conducted several fire drills at KFDC but sometimes "the month would go by . . . [without one] and then she would write it in" (Waller Deposition, p. 58) anyway, as if one had actually occurred. T.113. Infants were not removed, even when fire drills did take place. Id. Whether falsified records of fire drills were ever submitted to HRS is not clear. Ms. Acosta and others on the KFDC staff relied on "time outs" as their principal disciplinary method. But Ms. Acosta once swatted a little girl's behind. The witness who testified to this incident also testified, "I'm not saying that the child did not like Debra [Acosta, the respondent] or was scared of Debra." Waller Deposition, p. 61.
Recommendation HRS proved several significant violations. But HRS did not prove, or even allege, that respondent's husband sexually abused a child or children. Instead, HRS alleged and proved that such allegations are the basis for pending criminal and (other) administrative proceedings. It is, accordingly, RECOMMENDED: That HRS suspend respondent's day care center license for one year, with credit for the time already elapsed in which HRS has prevented respondent from operating a day care center. That HRS place respondent's license on probation thereafter for a period of at least two years, on condition that respondent comply with all applicable statutes and rules for two years; on condition that respondent not charge for children she cares for at her home; and on condition that Mr. Acosta stay off KFDC premises while children other than his own are there, and have no contact with children who are cared for at KFDC (other than his own), until and unless he is exonerated in both the criminal and administrative proceedings now pending. DONE and ENTERED this 22 day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 3, 4, 5, 6, 7, 10, 11, 12, 13, 17, 20 and 26 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, KFDC was licensed earlier than January 1, 1991. With respect to petitioner's proposed finding of fact No. 8, the court order was not in evidence. With respect to petitioner's proposed finding of fact No. 9, the substance is addressed in later proposed findings of fact. With respect to petitioner's proposed findings of fact Nos. 14 and 15, the evidence did not show routine noncompliance. With respect to petitioner's proposed finding of fact No. 16, this occurred only rarely. With respect to petitioner's proposed finding of fact No. 18, it was not clearly and convincingly shown that the screening had not be completed. With respect to petitioner's proposed finding of fact No. 19, it was not clearly and convincingly shown that the children received less than what was nutritionally necessary. Petitioner's proposed findings of fact Nos. 21, 23 and 24 were not proven. With respect to petitioner's proposed finding of fact No. 22, it was not clear that respondent "extended her day care license to her home without authority" as opposed to acting in good faith under supposed authority antedating issuance of KFDC's license. Vicki Waller did not see all those children at the same time, as far as the record shows. With respect to petitioner's proposed finding of fact No. 25, the credible evidence did not clearly and convincingly establish any improper discipline other than the swat. With respect to petitioner's proposed finding of fact No. 27, the violation consisted only of being in the presence of his own children. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 9, 11, 12, 14, 15, 17, 18 and 20 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 7, an adult was inside when the boys were asked to watch the infants, but no adult was outside three or more times when one of the Acosta sons supervised. With respect to respondent's proposed finding of fact No. 8, noncompliance with ratios was sometimes more than momentary. With respect to respondent's proposed finding of fact No. 10, diapers were changed regularly. With respect to respondent's proposed finding of fact No. 13, morning snacks were not always given. With respect to respondent's proposed finding of fact No. 16, children whose parents did not pick them up at KFDC were also brought to the Acosta home. With respect to respondent's proposed finding of fact No. 19, no improper discipline other than a single swat was proven. With respect to respondent's proposed finding of fact No. 21, this is properly a conclusion of law. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 S. J. DiConcilio, Esquire Rodney M. Johnson, Esquire P.O. Box 8420 Pensacola, FL 32505-0420 Mary Koch Polson, Esquire P.O. Box 96 Fort Walton Beach, FL 32549
The Issue Whether Respondent should continue to allow the Bambi Day Care I child care facility to remain open for business.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Bambi Day Care I (Facility) is a child care facility located in Miami-Dade County. At all times material to the instant case, Mercedes Arabi has been the director of the Facility. Ms. Arabi does not now have, nor has she ever possessed, a director credential issued by Respondent. Although she has attempted to obtain such a credential, she has not been able to meet the credentialing requirements. On or about August 13, 2003, Respondent sent to the Facility (by certified mail, return receipt requested) a form letter advising of the following: The deadline for the Director's Credential is January 1, 2004. This is mandated by Chapter 65C-22, Florida Administrative Code. Each child care facility must have a director that meets this requirement by January 1, 2004. Failure to comply will affect your licensure status seriously. If you have already completed the Director Credential requirement, please disregard this letter and mail or fax immediately a copy of your certificate for your licensing record. (Include the name of your facility.) The same letter was sent to all other licensed child care facilities having an uncredentialed director. The letter was delivered to the Facility on August 21, 2003. Not having received any indication that Ms. Arabi had obtained the required director credential, Respondent, on or about January 16, 2004, changed the Facility's licensure status by issuing a provisional license, effective from January 2, 2004, through July 2, 2004, authorizing the Facility's operation. As of July 2, 2004, Ms. Arabi still had not become credentialed. Accordingly, on that date, Respondent advised her that it "intended to revoke [her] license to operate [the Facility]." Ms. Arabi requested an administrative hearing on the matter. Notwithstanding that the expiration date on the Facility's provisional license was July 2, 2004, Respondent has affirmatively allowed the Facility to continue to operate pending the outcome of Ms. Arabi's challenge to the revocation action announced in Respondent's July 2, 2004, letter. In doing so, it has effectively extended the life of the Facility's provisional license (which, for all intents and purposes, remains in existence).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a Final Order revoking its permission allowing the Facility to operate as a child care facility. DONE AND ENTERED this 27th day of December, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2005.
The Issue Whether the Department should issue certificate of need number 4502 to construct and operate a fifty-bed long-term psychiatric hospital in Leon County, Florida, to HCAC?
Findings Of Fact HCAC is a corporation formed by Anthony Estevez for the purpose of developing and operating a long-term psychiatric facility in Leon County, Florida. The facility was to be known as HCAC psychiatric Hospital of Leon County. Mr. Estevez owns 100 percent of the stock of HCAC. The Department is the state agency in Florida authorized to issue certificates of need for long-term psychiatric facilities. TMRMC is a general acute care hospital located in Tallahassee, Leon County, Florida. TMRMC operates a free- standing short-term psychiatric facility in a two-story, approximately 45,000 square foot, structure located within a block and a half from the main hospital. TMRMC's psychiatric facility is licensed for sixty beds. At present, forty-five of its beds are actually open, with fifteen beds in each of three units. One unit is available for adult patients (including geriatric patients), one is available for adolescent patients and one is available for an open adult unit. The other fifteen beds are available but are not staffed because of a lack of patients. Apalachee is a private, non-profit corporation. Apalachee provides comprehensive community mental health services to Franklin, Gadsden, Jefferson, Leon, Liberty, Madison, Taylor and Wakulla Counties. Apalachee was established consistent with State and federal guidelines to provide a variety of mental health Services. On March 17, 1986, a Letter of Intent was filed with the Department notifying the Department of Mr. Estevez's intent to apply for a certificate of need in the March 16, 1986, batching cycle. This Letter of Intent was filed within the time requirements of Florida law. On April 15, 1986 Estevez filed an application for a certificate of need for a comprehensive, free-standing, ninety-bed long-term psychiatric facility to be located in Leon County, Florida. Leon County is located in the Department's District 2. District 2 is made up of Bay, Calhoun, Franklin, Gadsden, Gulf, Jackson, Jefferson, Holmes, Leon, Liberty, Madison, Taylor, Wakulla and Washington Counties. Franklin, Gadsden, Jefferson, Leon, Liberty, Madison, Taylor and Wakulla Counties make up Subdistrict 2B. The other Counties make up Subdistrict 2A. HCAC's application was filed with the Department and the District 2 local health council. In a letter dated May 15, 1987, the Department requested additional information from HCAC. The information requested by the Department was provided by HCAC on or about June 19, 1986 and June 23, 1986. On September 23, 1986, the Department issued a State Agency Action Report partially approving HCAC's certificate of need application. HCAC was notified of the Department's decision and was issued certificate of need #4502 by letter dated September 30, 1986. HCAC had sought approval to construct a ninety-bed facility providing specialty long-term psychiatric services for the chronically mentally disturbed; patients with a ninety-day average length of stay. The facility was to provide care to adolescents, adults and geriatrics. Certificate of need #4502 authorized HCAC to construct a fifty-bed long-term adult, geriatric and adolescent psychiatric hospital in Leon County. The Department approved the facility because of its perception that there is no long-term psychiatric facility serving the geographic area proposed by HCAC to be served. By letter dated November 13, 1987, the Department issued an amended certificate of need #4502 to HCAC restricting the services to be provided to adult and geriatric long-term psychiatric services. HCAC intends on using thirty-six beds for adults and fourteen beds for geriatric patients. HCAC did not contest the Department's reduction in the size of the approved facility or the limitation of the scope of services to adult and geriatric patients. At the formal hearing HCAC presented evidence to Support the approved fifty-bed facility Serving only adults and geriatrics. HCAC has not contested the Department's decision to only partially approve HCAC's application. Supporting documentation took into account the smaller size of the approved facility. No substantial change in the scope or emphasis of the facility was made by HCAC other than the elimination of adolescent Services. HCAC has projected an average occupancy rate of 80 percent for the third year of operation. Because of the failure to prove that there is a need for an additional fifty long-term psychiatric beds for District 2, HCAC has failed to prove that this projection is reasonable. As of the date of the Department's initial decision and at the time of the formal hearing of these cases Rivendell Family Care Center (hereinafter referred to as "Rivendell") an eighty-bed long-term-psychiatric free-standing hospital located in Panama City, Bay County, Florida, had been open for approximately six weeks. Rivendell's occupancy rate at the time of the formal hearing was approximately twenty-four percent. Long-term psychiatric services mean hospital based inpatient services averaging a length of stay of ninety days. Long-term psychiatric services may be provided pursuant to the Department's rules in hospitals holding a general license or in a free-standing facility holding a specialty hospital license. Generally, the chronically mentally ill constitute an under-served group. In order to provide a complete continuum of care for the mentally ill, in-patient hospital treatment, including twenty-four hour medical care and nursing services and intensive resocialization or teaching of resocialization skills, should be provided. The Department has not established a standard method of quantifying need for long-term psychiatric beds in Florida. The Department's approval of the additional long- term psychiatric beds and facility at issue in this proceeding and the Department's and HCAC's position during the formal hearing that there is a need for HCAC's facility was based generally upon their conclusion that there is a "lack of such a facility to serve the geographic area." During the formal hearing, the Department further justified the need for the facility as follows: Basically it was felt that given the geographic distance or distances between this area, the eastern portion of District II, and the closest facilities, meaning licensed hospitals or facilities authorized by a Certificate of Need to offer long-term adult psychiatric services in a Chapter 395 licensed hospital, that there probably should be one here of a minimal size because we were not firm in, or in surety of the number of patients who might need the service in this area. But we thought that there should be at least a minimally sized long-term psychiatric hospital in this area to serve this area. HCAC and the Department failed to prove that there is a need for an additional fifty long-term psychiatric beds in District 2. At best, HCAC and the Department have relied upon speculation and assumptions to support approval of the proposed facility. In order to prove need, the characteristics of the population to be served by a proposed health service should be considered. A determination that there is a need for a health service should be based upon demographic data, including the population in the service area, referral sources and existing services. HCAC and the Department did not present such evidence sufficient enough to Support the additional fifty beds at issue in this proceeding. HCAC did not use any need methodology to quantify the gross need for long-term psychiatric beds in District 2. Nor did HCAC or the Department present sufficient proof concerning existing services, the population to be served, the income or insurance coverage of the Service area population or actual service area referral patterns. In its application. HCAC premised its proposal, in part, on the assumption that "the Leon County area is an undeserved area with residents being referred to facilities long distances away." HCAC exhibit 2. The evidence does not support this assumption. HCAC also premised its proposal upon its conclusion that it would receive patient referrals from existing institutions. The evidence failed to support this conclusion. HCAC also premised its proposal upon the fact that long-term psychiatric services have been designated as a licensure category by the Department. This does not, however, create a presumption that there is a need for such services in a particular area. Based upon the evidence presented at the formal hearing concerning one methodology for quantifying the need for long-term psychiatric beds, there may already be a surplus of long-term psychiatric beds in District 2. Such a surplus of beds may exist whether State hospital beds and ARTS and GRTS program beds are considered. The methodology is based upon national length of stay data for 1980 which was obtained from the National Institute of Mental Health. The methodology did not take into account more current data or Florida specific data. Therefore, use of the methodology did not prove the exact number of long- term psychiatric beds needed for District 2. Although the weight of the evidence concerning the use of the methodology failed to support a finding as to the exact number of long-term psychiatric beds needed in District 2, its use was sufficient to support a finding that there may be a surplus of beds already in existence. The methodology further supports the conclusion that HCAC and the Department have failed to meet their burden of proving that there is a need for the proposed facility. The weight of the evidence failed to prove whether long-term inpatient psychiatric services, other than those provided at State hospitals, are "within a maximum travel time of 2 hours under average travel conditions for at least 90 percent of the service area's [District 2] population." The closest long-term inpatient psychiatric facility [other than a State hospital], Rivendell, is located in Panama City, Bay County, Florida. This facility is located in Subdistrict 2A. There is no facility located in Subdistrict 2B. Rivendell is located on the western edge of Subdistrict 2B, however. The weight of the evidence failed to prove that this facility is not within a maximum travel time of 2 hours under average travel conditions for at least 90 percent of District 2's population. On page seven of the State Agency Action Report approving Rivendell, the Department indicated that "[t]he proposed location insures that 90 percent of the District I and District II population will have access within two hours travel time." This determination was made prior to the initial approval by the Department of HCAC's proposed facility. If the Florida State Hospital at Chattahoochee (hereinafter referred to as "Chattahoochee"), which is located in District 2, is taken into account, long-term psychiatric services are available within a maximum travel time of 2 hours under average travel conditions for a least 90 percent of District 2's population. Chattahoochee provides long-term inpatient psychiatric hospital care to indigent and private pay patients. The quality of cafe at Chattahoochee is good and a full range of therapeutic modalities typically available at other psychiatric hospitals are available. HCAC and the Department have suggested that there is need for the additional fifty beds at is sue in these cases because of their conclusion that 90 percent of the population of District 2 is not within two hours under average travel conditions of long-term psychiatric services. The failure to prove this conclusion further detracts from their position as to the need for the proposed facility. HCAC exhibit 8 is a copy of the goals, objectives and recommended actions contained in the 1985-87 Florida State Health Plan relating to mental health facilities. The evidence in this proceeding failed to support a finding that HCAC's proposed facility will enhance these goals, objectives and recommended actions. Goal 1 of the 1985-87 Florida State Health Plan is to "[e]nsure the availability of mental health and substance abuse services to all Florida residents in a least restrictive setting." Objectives 1.1, 1.2 and 1.4, and the actions recommended to achieve these objectives are not applicable to HCAC's proposed facility. Objective 1.3 provides that additional long-term inpatient psychiatric beds should not be approved in any district which has "an average annual occupancy of at least 80 percent for all existing and approved long-term inpatient psychiatric beds." Goal 2 of the 1985-87 Florida State Health Plan is to "[p]romote the development of a continuum of high quality, cost effective private sector mental health and substance abuse treatment and preventive services." The objectives and recommended actions to achieve this goal are not applicable to HCAC's proposed facility. Goal 3 of the 1985-87 Florida State Health Plan is to "[d]evelope a complete range of essential public mental health services in each HRS district." The objectives and recommended actions to achieve this goal are not applicable to HCAC's proposed facility. The Florida State Plan for Alcohol, Drug Abuse and Mental Health Services does not specifically deal with private long-term psychiatric services. Instead, it relates specifically to treatment in the state mental health treatment facilities. The applicable district mental health plan does not specifically address long-term psychiatric services. The plan does, however, recommend that new facilities should indicate a commitment to serving the medically indigent. HCAC has agreed to provide 5.6 percent of its patient days for indigent care. HCAC's commitment to provide 5.6 percent of its patient days for indigent care is consistent with this objective. Mental Health District Boards have been abolished. The District 2 Alcohol, Drug Abuse and Mental Health Planning Council, however, has published the Alcohol, Drug Abuse, and Mental Health 1986-89 Provisional District Plan. It is acknowledged in this Plan that deinstitutionalization and the provision of the least restrictive means of treatment should be promoted. The use of long- term psychiatric inpatient beds does not promote this philosophy. If a patient is not admitted as part of the 5.6 percent indigent commitment of HCAC and cannot pay the $10,500.00 per month admission charges, HCAC will not admit the patient. Additionally, if a patient is admitted and runs out of funds to pay the daily charges and is not part of the 5.6 percent indigent commitment, the patient will be transferred to another facility. HCAC's facility will be accessible to all residents who can pay for their services or who are part of the 5.6 percent indigent commitment of HCAC. The provision of 5.6 percent indigent care is adequate. HCAC will provide non- discriminatory health care services, to those indigent patients who are covered by HCAC's 5.6 percent commitment. The Counties which make up Subdistrict 2B, other than Leon County, are below the average national and State poverty levels. In most of the Counties, twenty percent of the population have incomes below the poverty level. HCAC has not managed any type of psychiatric hospital and currently has no employees. The proposed facility is to be managed by Flowers Management Corporation (hereinafter referred to as "Flowers"). Flowers is a psychiatric management company that has been in operation since 1984. Mr. Estevez owns fifty-one percent of the stock of Flowers and is the Chairman of the Board. Flowers is operating five Psychiatric/substance abuse facilities: three hospital based and two free-standing pychiatric/chemical dependency facilities. The staff and faculty of Flowers has a strong background in the management of psychiatric facilities. Flowers has no experience in the management of a long-term psychiatric facility. Mr. Nelson Elliot Rodney, Flowers' Regional Vice President, will be ultimately responsible for the management of the proposed facility. The administrator of the facility will report to Mr. Rodney. Mr. Rodney will seek to implement the goals outlined in HCAC's certificate of need application for the proposed facility. Mr. Rodney has not designed a psychiatric hospital. Nor has Mr. Rodney worked at or administered a long- term psychiatric hospital. The overall treatment plan as presented in HCAC's certificate of need application and as presented at the formal hearing lends itself to the development of a good program for long-term psychiatric care. HCAC has associated itself with experts in long-term psychiatric care in order to develop a detailed plan specifically addressing the treatment needs of long-term psychiatric patients. HCAC has the ability to, and will, provide good quality patient care. Apalachee provides certain programs in Subdistrict 2B which provide alternatives to long-term psychiatric hospitalization: the Geriatric Residential Treatment System (hereinafter referred to as "GRTS") and the Adult Residential Treatment System (hereinafter referred to as "ARTS"). Apalachee's GRTS program, which serves Individuals fifty-five years of age and older, contains a residential component with a total capacity of Seventy geriatric beds. A wide variety of services are provided as part of the GRTS program, including day treatment and case management components. When Apalachee's ARTS program is fully implemented there will be a total of one hundred sixty-three beds available for the care on long-term mentally ill adults and geriatrics within Subdistrict 2B. The ARTS program serves adults who are eighteen to fifty-four years of age. Apalachee's GRTS and ARTS programs do not provide the identical services provided in a free-standing long-term psychiatric hospital. The programs do provide some identical or similar services, and, to that extent, the programs complement the continuum of psychiatric care available. To the extent that they provide the same type of services, Apalachee's GRTS and ARTS programs serve as alternatives to HCAC's proposed facility. There is a national shortage of registered nurses. This shortage is particularly acute with regard to psychiatric nurses. TMRMC has a current shortage of three registered psychiatric nurses, three part-time psychiatric registered nurses, seven flex positions for psychiatric nurses, one full- time nurse technician position and one mental health worker. TMRMC has had difficulty, despite adequate efforts to recruit, recruiting for its psychiatric facility since it opened. It has never been fully staffed with psychiatric nurses. There is also a shortage of occupational therapists. TMRMC has had an occupational therapist vacancy for seven months. Mr. Rodney will be responsible for the recruitment of the necessary personnel for the proposed facility. Mr. Rodney indicated that he would utilize recruitment methods similar to those used by TMRMC. Mr. Rodney will also use his experience and contacts in the Dade County, Florida area. HCAC's salary package is reasonable and HCAC will provide adequate in- service training programs. Although HCAC will have difficulty in attracting qualified staff, just as TMRMC has had, it will be able to obtain adequate staff for the proposed facility. HCAC may do so, however, at the expense of existing health care providers. Apalachee provides the following programs in District 2: Wateroak--A sixteen-bed long-term psychiatric hospital for the treatment of children and adolescents. It is a licensed Specialty hospital; In November of 1987, Apalachee began construction of an acute care facility, which will provide inpatient short- term psychiatric services; Case Management Services--Case management services, which include supportive counseling, medication therapy, assistance with transportation and home visitation, are provided to the chronically mentally ill on an outpatient basis. The Services are to be provided where the patients reside; Hilltop--A sixteen-bed residential treatment center. Hilltop is a group home living facility for adults eighteen to fifty-four years of age; Chemical Dependency Program--Individual, group and family counseling and educational services on an outpatient basis for Individuals with suspected substance abuse problems; Emergency Services--Year-round, twenty-four hour a day telephone or face-to-face evaluations to persons with an acute disturbance or who are in need of evaluation for determination of the proper level of care; PATH--Positive Alternative to Hospitalization Program, a crises stabilization unit developed as an alternative to short-term psychiatric care; PPC--Primary Care Center, a nonhospital medical detoxification unit providing short-term detoxification care to alcohol abusers; Gerontological Programs--Made up of the GRTS program and an outpatient component. Through the outpatient component, Apalachee uses its outpatient clinics in each County in its service area to provide linkage for therapy and medication and supportive counseling to geriatrics; ARTS Program; and Designated Public Receiving Facility--Apalachee is the designated public receiving facility for Subdistrict 2B. It screens and evaluates every person admitted to Chattahoochee. Apalachee's adult mental health programs which are available to indigent patients, directly impact both long and short-term hospital utilization, lowering such utilization. For example, before establishing the services provided to suspected substance abusers, many patients were placed in long-term psychiatric hospitals. Referrals to TMRMC of patients under the Baker Act have been reduced from an average of fifteen to eighteen patients per day to an average of one-half to one person per day. There has also been a decrease in admissions to Chattahoochee since Apalachee established the GRTS and ARTS programs. At the time of the formal hearing of these cases TMRMC had a census of only twenty-eight adult patients in its short-term psychiatric facility. TMRMC's census has been low for the past two years. TMRMC's short-term psychiatric facility is operating at a loss. Any further loss of patients would have a serious impact on the facility. From October 1, 1986 to July 31, 1987, TMRMC lost $127,337.00 on its short-term psychiatric facility. For the twelve-month period from October 1, 1986 to October 1, 1987, it is reasonably estimated that TMRMC will lose $139,722.00. TMRMC would like to open the fifteen-bed unit (which is presently closed) of its short-term psychiatric facility. It must increase its census before it can do so. It has been attempting to increase its census by sending out mail-outs and newsletters, sponsoring educational programs advertising, inviting health care professionals to the facility and initiating clinical affiliations with university programs. Rivendell is an eighty-bed long-term psychiatric facility. Forty of its eighty beds are licensed for adults and geriatric patients. The other forty beds are licensed for children and adolescent patients. Rivendell's census at the time of the formal hearing of these cases was six to eight patients. Chattahoochee has a total of 823 long-term psychiatric beds for adults and geriatrics. There are no like and existing long-term psychiatric beds for adults and geriatrics located in Subdistrict 2B. The only like and existing long-term psychiatric beds for adults and geriatrics available to residents of District 2 are located in Subdistrict 2A at Rivendell. The proposed HCAC facility will result in increased competition in District 2. This increase in competition will have an adverse impact on suppliers of inpatient psychiatric services. Admissions to the proposed facility will likely include patients who would be more appropriately hospitalized in a short-term facility. Although HCAC has no plans to admit short-term patients and will attempt to prevent such admissions, mental health professionals cannot accurately predict the length of a patient's stay upon admission. The determination will often require an in- hospital evaluation of the patient. Therefore, patients more appropriately treated in a short-term facility such as TMRMC will end up spending some tide in HCAC's proposed facility. TMRMC will lose patient days if the HCAC facility is constructed. This will adversely affects TMRMC's occupancy rate, which is already low, and cause further losses in revenue. Given the surplus of long-term psychiatric beds in District 2 and the low occupancy of short-term beds in Subdistrict 2B, it will difficult for HCAC to continue in existence without admitting short-term psychiatric patients. The operation of the proposed HCAC facility will also adversely affect the availability of nurses to staff Apalachee's acute care facility and other Apalachee operations and TMRMC's ability to staff its short-term psychiatric facility. Even the loss of one more full-time registered nurse at TMRMC could cause critical staffing problems. Because of the lack of need for fifty additional long-term psychiatric beds in District 2, HCAC's proposed facility would also have an adverse affect on Rivendell. The proposed facility will provide internships, field placements and semester rotations for psychiatrists, psychologists, social workers, nurses and counselors. The facility will work closely with community agencies and community personnel in developing, operating and providing resources for training for community groups, patient groups and personnel. In- service training will be open to selected professionals in the community. HCAC's proposed facility will have a positive effect on the clinical needs of health professional training programs and schools for health professions in District 2. The-total estimated cost of the proposed project approved by the Department is $4,108,000.00. HCAC plans on financing 100 percent of the cost of the project with a mortgage loan at 13 percent interest. Mr. Estevez has had experience in obtaining financing for health care and other commercial projects. In 1987 alone, Mr. Estevez was personally involved in over $20,000,000.00 of financing. Short-term financial feasibility means the ability to successfully fund a project to ensure that the project will succeed in the short-term. To achieve short-term financial feasibility, there must be sufficient funds to cover any losses incurred during the initial operating period and to cover any short fall in working capital necessary to fund the project. NCNB, a financial institution with which Mr. Estevez has had, and continues to have, a long and profitable association, has indicated interest in financing the proposed project. A financing letter to this effect has been provided. Although the letter does not specifically refer to the proposed project, the weight of the evidence supports a finding that NCNB would be willing to finance the project. In light of Mr. Estevez's experience in obtaining commercial financing and his relationship with NCNB, it is reasonable to conclude that 100 percent financing of the project can be obtained at 13 percent interest. The proposed project will have a negative cash balance at the end of its first and second year of operation. Given Mr. Estevez's commitment to the project, sufficient funds for capital and operating expenses will be available to cover these negative cash balances. Although Mr. Estevez did not provide a separate audited financial statement, the weight of the evidence proved that Mr. Estevez has the ability to provide the necessary capital. In the short-term, HCAC's proposal is financially feasible. HCAC has projected that it will operate at an average length of stay of ninety days. It will charge an all-inclusive $350.00 per day for its long- term psychiatric services, including all ancillary services. Initially, HCAC projected the following payor mix: Medicaid of 30 percent; Medicare of 20 percent; and insurance and private pay of 50 percent. HCAC was informed by the Department that Medicaid reimbursement was not available for psychiatric services in private free-standing psychiatric hospitals. Consequently, HCAC modified its payor mix by eliminating Medicaid from its payor mix. At the formal hearing of this case, HCAC projected the following payor mix: Medicare of 3.3 percent; indigent of 5.6 percent; and insurance and private pay of 91.1 percent. Medicare reimburses for psychiatric care in a limited fashion. That is why HCAC reduced its projected Medicare reimbursement to 3.3 percent of its total revenue. Medicare patients generally use the majority of their lifetime reserve Medicare reimbursable days for other types of care, including short-term psychiatric care and acute care. Persons in need of long-term psychiatric care generally have a poor work history because of their illness interferes with their ability to obtain and maintain employment. Patients have few economic resources of their own. A patients family structure is often disorganized as a result of the patient's episodes of illness. These episodes strain the family relationship. Persons in need of long-term psychiatric care are often unable to pay for needed services and their family members are either unable or unwilling to support the person. There is no facility in Florida with a payor mix of 91 percent insurance and private pay. HCAC's projection of 91.1 percent insurance and private pay is not a reasonable projection. This finding of fact is based upon the high poverty levels within Subdistrict 2B, the lack of need for additional long-term psychiatric beds and the failure to prove that insurance benefits for long-term care are available in District 2. The State of Florida, Employees Group Health Self-Insurance Plan does not provide coverage for specialty hospitals, such as HCAC's proposed facility. The State of Florida provides 42 percent of the employment in Leon County. Insurance provided by other employers in the area limits coverage for inpatient psychiatric care to thirty to thirty-one days. These benefits are often exhausted before long- term care becomes necessary. In order to achieve a 91.1 percent insurance and private pay payor mix, 80 percent to 100 percent will have to be private pay patients. Such a high percentage of private pay patients is not reasonable. The effective buying income in Leon County in 1986 was approximately $22,600.00. In District 2 it was $18,700.00. Madison County and Jefferson County are among the counties heading Florida's poverty rate. Taylor County is the ninth poorest county in the State. HCAC has projected a 95 percent occupancy rate for its proposed facility within six months of its opening. HCAC has failed to prove that this occupancy rate can be achieved. In light of the high poverty rate in the area, the lack of need for long-term psychiatric services and the inability of patients to pay for such services, this projected occupancy rate is not reasonable. In light of HCAC's failure to prove that there is a need for the proposed facility or that its payor mix is reasonable, HCAC has failed to demonstrate that its occupancy projection is achievable. HCAC has projected that 7.3 percent of its gross revenue will be deducted as revenue deductions. Included in this amount are contractual allowances, charity care and bad debts. Medicare reimburses hospitals for total costs rather than revenue or charges. HCAC, therefore, gas projected approximately $6,000.00 for the first year and $24,000.00 for second year as contractual allowances. HCAC's projection of deductions from revenue are not reasonable. Bad debt of 1.6 percent is unreasonable compared to the experience at other long- term psychiatric facilities in Florida. The $350.00 all-inclusive charge is not reasonable. This charge will not be sufficient to cover the proposed facility's costs. HCAC's projected costs for "Supplies and other" and for taxes are reasonable. HCAC has failed to prove that its proposed facility is financially feasible in the long-term. The projected and approved cost of construction is $3,965,456.00. HCAC has indicated that the facility will consist of two, one-story buildings connected by a hallway. The facility will have approximately 40,563 gross square footage. The actual site for the project has not been selected or purchased. The floor plan calls for twenty-five, semi-private rooms for patients. The patient-care building will contain four independent and secure living/program areas connecting to a central core which will contain an atrium open to the outdoors. There will be approximately 811 gross square feet per bed, which is adequate. The proposed design is reasonable. The projected completion forecast of HCAC is reasonable. The projected costs of completing the building are reasonable. The building will be built by Project Advisers Corporation (hereinafter referred to as "PAC"). PAC is a health care, commercial and residential construction company. Mr. Estevez owns 100 percent of PAC. Since 1978, PAC has been involved in the construction of St. John's Rehab Center and Nursing Home, South Dade Nursing Home, Hialeah Convalescent Center, South Dade Rehab Hospital and two psychiatric/chemical dependency hospitals for Glenbeigh Hospital. Generally, there are no differences in the construction requirements between short-term and long-term psychiatric facilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a Final Order denying the application of HCAC for a certificate of need to construct and operated a fifty-bed long-term psychiatric facility in Leon County, Florida. DONE and ENTERED this 3rd day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4373 and 864374 The parties have submitted proposed findings of fact it has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommend Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. HCAC's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 5-6. The third through fourth sentence are hereby accepted. 1 and 6. 3 1 and 39. 4 6 and 9 5 7. 6 8-10, 34 and 97. 7 11. 8 11, 14 and 76. The last Sentence is not supported by the weight of the evidence 6. The last sentence is not supported by the weight of the evidence. 10 10 and 69. 11 Hereby accepted. 12 39-40. 13 These proposed findings of fact are cumulative, subordinate and unnecessary. They deal with the weight to be given to other evidence. 14 42. 15-19 Although these proposed findings of fact- are generally true, they are cumulative, subordinate and unnecessary. The first sentence is not supported by the weight of the-evidence. The rest of the proposed findings of fact are hereby accepted. Although the proposed finding of fact contained in the first sentence is generally true, it is cumulative, subordinate and unnecessary. The rest of the proposed findings of fact deal with the weight to be given to other evidence. These proposed findings of fact are not supported by the weight of the evidence. 23-26 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 27 Although this proposed finding of fact is generally true, the weight of the evidence failed to prove that HCAC will be able to achieve its plans. 28-33 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 34 43. 35 51. The last sentence is not supported by the weight of the evidence. 36 52. 37 53. 38 69-70. 39 72. 40 73. 41 74. 42 67. 43 68. 44 34 and 37. 45 104. 46. The first sentence is law. The last sentence is accepted in 105. 47 97 and 99-100. 48 101. 49 103. 50 102. 51 Hereby accepted. 52-53 These proposed findings of fact deal with the weight to be given other evidence. 54 78. 55 79-80. 56 79. 57-58 Not supported by the weight of the evidence. 76. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. Although generally correct, these proposed findings of fact do not support HCAC's projected utilization. Irrelevant. Not supported by the weight of the evidence. Irrelevant. 65 92. 66 93. 67 94. The last two sentences are not supported by the weight of the evidence. 68 95. Not supported by the weight of the evidence. HCAC's proposed facility and TMRMC are not comparable. 71-75 Not supported by the weight of the evidence. 54 and 59. The last sentence is not supported by the weight of the evidence. The first two sentences are hereby accepted. The last sentence is not supported by the weight of the evidence. Irrelevant. 79-83 Not supported by the weight of the evidence. 84-85 Statement of law. Hereby accepted. 6 and 25. The last sentence is not supported by the weight of the evidence. 88-90 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 91-92 Not supported by the weight of the evidence. 93 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. The last two sentences are conclusions of law. 94-95 Not supported by the weight of the evidence. Irrelevant. The first sentence is a conclusion of law. The second sentence is hereby accepted. The last sentence is irrelevant. 13. The last two sentences are conclusions of law. Irrelevant. 100-102 Hereby accepted. Not supported by the weight of the evidence. Hereby accepted. 44. The last sentence is irrelevant. 47. The last sentence is not supported by the weight of the evidence. 16. The last sentence is not supported by the weight of the evidence. 108 15. Not supported by the weight of the evidence. Irrelevant. See 23. The last sentence is not supported by the weight of the evidence. Conclusions of law. Not supported by the weight of the evidence. 114 34. 115 29. The last sentence is not supported by the weight of the evidence. 115a 30. The last sentence is not supported by the weight of the evidence. 115b-e 30. The next to the last sentence of e is not supported by the weight of the evidence. 115f Not supported by the weight of the evidence. 116-117 Not supported by the weight of the evidence. 118 Hereby accepted. 119-120 35. 121 Irrelevant. 122 33. 123-124 Irrelevant. 125-129 Not supported by the weight of the evidence. 130 3. 131 Hereby accepted. 132 64. The last sentence is not supported by the weight of the evidence. 133 See 49 and 65. 134 54. The last two sentences are not supported by the weight of the evidence. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Hereby accepted. 2-3 8-9. 4 Not supported by the weight of the evidence. 5 13 and 25. Not supported by the weight of the evidence. Conclusion of law. 8 31. 9 Not supported by the weight of the evidence. 10-12 Irrelevant. 13 Not supported by the weight of the evidence. 14-16 Conclusions of law. TMRMC's Proposed Findings of Fact 1 1, 6 and 9-11. 2 See 6 and 9. 3 6-10. 4 76. 5 77-78. 6 79. 7 79-80. 8 Hereby accepted. 9 81. 10 82-83. 11 34 and 36. 12 36. 13 6. 14-15 39. 16 41-42. 17 2. 18 3. 19 4 and 6. 20-21 54. 22 Not Supported by the weight of the evidence. 23 54. 24 46 and 54. 25-26 54-55. 27-29 54. 30 54-55. 31 44-45, 47 and 54. 32 Hereby accepted. 33 54-55. 34 55. 35 Irrelevant. 36 56. 37 58. 38 49. 39 48. 40 50. 41-44 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 45-46 65. 47-48 57. 49 58. 50 63-64. 51 Not supported by the weight of the evidence. 52 63-64. 53 63-64. 55 Hereby accepted. Not supported by the weight of the evidence. 56 65. 57 Not supported by the weight of the evidence. 58 25 and 59. 59 Not supported by the weight of the evidence. 60-62 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 63 25 and 59. 64-68 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 69 Not supported by the weight of the evidence. 70-71 27. Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. Not supported by the weight of the evidence. 74 18 and 96. Irrelevant. Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 77-81 Although generally true, these proposed findings of fact are not relevant to this de novo proceeding. 82 Hereby accepted. 83 84. 84 Hereby accepted. 85-86 Irrelevant. 87 See 69 and 72. 88 94. 89 Hereby accepted. 90 74. 91 94. The last three sentences are not supported by the weight of the evidence. 92-93 Not supported by the weight of the evidence. 94-96 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 97 19. 98-99 18. Hereby accepted. Irrelevant. Hereby accepted. 103 19. 104 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 105 20. 106 21. 107 Hereby accepted. 108-110 See 23. 111 Not supported by the weight of the evidence. 112 85. 113 86. 114 88. 115 89. 116-118 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 119 91. 120 90. 121 96. 122-126 Not supported by the weight of the evidence. 127 Hereby accepted. 128-129 Irrelevant. 130 22. 131 97-98. 132 99. 133-139 Not Supported by the weight of the evidence. 140 95. 141 Not supported by the weight of the evidence. 142 97. 143-146 Not supported by the weight of the evidence. Apalachee's Proposed Findings of Fact 1 6 and 8-9 2 4. 3(a)-(i)(1) 54. 3(i)(2) 44-45. 3(j) 44 and 54. 3(k) 54. 4 3. 5 1. 6 104. 7 39 and 41. 8 27 and 60. 9 25 and 59. 10(a) Not supported by the weight of the evidence. 10(b) 27. 10(c) 26. 10(d) Not supported by the weight of the evidence. 11 13. 12(a) 81. 12(b) 82-83. 13 6 76 and 87. The second, third, fifth- eighth sentences, the Second Paragraph and the last Paragraph are not Supported by the weight of the evidence. 71 and 74. Other than the first two Sentences of the first Paragraph and the first two sentences of the third Paragraph, these Proposed findings of fact are not Supported by the weight of the evidence. 16(a) 90. The Second Paragraph is not Supported by the weight of the evidence. 16(b) 88. 16(c) 94. 16(d) 76 and 95. Other than the first three sentences of the first Paragraph and the last Paragraph, these Proposed findings of fact are not Supported by the weight of the evidence. 17 48-49 and 65. The Sixth and eighth Sentences and the last Paragraph are not Supported by the weight of the evidence. 44-47 and 54. The last Sentence of the first Paragraph and the last four Sentences of the last Paragraph are irrelevant. 19 62. 19(a) 3, 23, 56-57 and 64. The Second and third Paragraph are Cumulative and unnecessary. 19(b) 63. The Second Paragraph is Cumulative and unnecessary. 19(c) Cumulative and unnecessary, 19(d) 25, 59, 62 and 66. 19(e) 65. 20 Not Supported by the Weight of the evidence or Cumulative and unnecessary, 21 39 and 41. The last Paragraph is not Supported by the weight of the evidence. COPIES FURNISHED: Jean Laramore, Esquire Anthony Cleveland, Esquire Post Office Box 11068 Tallahassee, Florida 32302 Ronald W. Brooks, Esquire 863 East Park Avenue Tallahassee, Florida 32301 Theodore E. Mack, Esquire John Rodriguez, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Darrell White, Esquire Gerald B. Sternstein, Esquire Post Office Box 2174 Tallahassee, Florida 32301 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact At all times pertinent to the issues herein, the Department of Health and Rehabilitative Services was the state agency in Florida responsible for the licensing of family child day care centers in this state. Respondent, Elizabeth Horton, has, since before January 31, 1992, operated the Little Darling Horton-Cotton Family Day Care at 3710 11th Street East in Bradenton, Florida. The location is Mrs. Horton's home, and she resides there with Alfrader L. Cotton, her companion, Craig E. Horton and Sheldon G. Horton, her sons, and Tangela D. Horton, her daughter. In January, 1992, Mrs. Horton submitted an application for a license to operate a family day care center at the stated location and listed the others noted above as residents. Thereafter, on July 9, 1992, June 28, 1993, July 11, 1994, July 18, 1994 and December 21, 1995, Mrs. Horton submitted application forms for renewal of her license. On each of the renewal application forms, those same individuals were listed as residents of the home. Mrs. Horton's brother, L. H., was not listed as a resident or in any capacity on any of the application forms. On or about December 3, 1993, a report of abuse of a minor female, A. M., born on February 12, 1984, was received in the Department. The substance of the allegation was that A. M., along with her little brother, born on March 6, 1985, were placed by their mother at the Respondent's home from about 5:00 PM until early the next morning each week night, while their mother was at work. The report further alleged that Mrs. Horton's brother, L. H., had molested A. M. while she was staying in the Horton home. He was alleged to have awakened her in the middle of the night while she was asleep in the Horton daughter's bedroom on the pretext of taking her to the bathroom, but fondled her breasts and vaginal area. This report was investigated by personnel of the Department and was classified as verified. A report of neglect was entered against Mrs. Horton arising out of her failure to supervise the children and a Hearing Officer from the Division of Administrative Hearings, after a formal hearing pursuant to Section 120.57(1), Florida Statutes, entered a Recommended Order recommending that the Department enter a Final Order amending the proposed confirmed report to a classification of unfounded and expunging Mrs. Horton's name from the case record and all Department records. The Hearing Officer found, however, that L. H. had committed the abuse, and this determination was subsequently affirmed by the Secretary of the Department in the Final Order entered in this case. In 1989, L. H. was found guilty in the Circuit Court in Manatee County of lewd and lascivious acts in the presence of a child eleven years of age or younger, in violation of Section 800.04, Florida Statutes, a felony, and was sentenced, among other things, to community control for two years followed by seven years probation. After his arrest for the assault on A. M., on June 28, 1995, his prior sentence was increased to seven years in prison. He was also tried in Circuit Court for Manatee County for sexual battery, and was, on that same date, sentenced for the second offense to life imprisonment, with the provision he serve no less than twenty-five years. Whenever an individual is issued a license to operate a family day care center, that person is provided with a copy of a handbook containing the rules of the Department of Health and Rehabilitative Services relating to the licensing and operation of those facilities. Included within that pamphlet is a copy of Department rule 10M-10.002, dealing with personnel, which requires that all persons who are members of the operator's family or who reside in the day care home must be screened as must be persons providing substitute care in the absence of the operator. The evidence regarding the status of L. H. is contradictory. A. M. indicates that L. H. would be at the center from about 10:00 PM at night, after Mrs. Horton picked him up at work; would be there when she, A. M., went to bed at some time after 9:00 PM and before 11:00 PM; and, most of the time, would also be there then next morning, having spent the night in the bedroom of Mrs. Horton's son, Craig. A. M. cannot recall if L. H. ate his meals at the Horton home or took his showers there, but she recalls that he did cook there several times. She never saw him change or wash his clothes there and she never saw any of his clothes in the closet. Though she contends she was never left alone with L. H. by Mrs. Horton, she claims she was touched on her private parts by him on several occasions in the early hours of the morning, while the others in the house were sleeping. A. M.'s mother does not know if L. H. lived at the Horton child care center or not. He was there sometimes at night when she dropped the children off, and he was always there when she picked them up the next morning. To the best of her knowledge, the children were never left alone with him. Mrs. Horton, on the other hand, while admitting she knew that her brother had been convicted of a felony regarding a sexual offense against a minor child, categorically denies that L. H. lived at her home. She admits that he visited there from time to time and admitted to Ms. Winfrey, the child care supervisor from the Department, that he spent the night there from time to time as well. According to Mrs. Horton, L. H. lived with their parents in a home in the next block east on 11th Street East. Respondent admitted at hearing to picking him up from work around 9:00 PM at times, but not regularly. She contended at hearing he would come to the house to watch TV and to play games with her son, but rarely did he stay and never did he spend the night. The probation officers who visited L. H. would sometimes come to her house to see him but would never come in. None of the probation officers ever said anything to her about L. H.'s being at her home with children being present. At no time until the report of abuse was filed did she have any idea that L. H. was behaving improperly with any children in her charge. When she found out what he had done, she told him not to come back to that house. Mrs. Horton's daughter, age 17, claims that L. H. did not live at the care center at any time. He did not wash his clothes there or do anything which indicated he lived there. Since she was older, she stayed up later than A. M., going to bed around 10:00 PM or so. As she recalls, L. H. would usually leave the house about 10 or 11:00 PM and she would see him leave often. She did not often go to bed while he was still there. Taken together, the evidence establishes that while L. H. may not have resided at the house on a permanent basis, he was there frequently enough to be considered a member of the family as defined in the Department rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order denying Elizabeth Horton renewal of her license to operate a family day care center. DONE and ENTERED this 8th day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1996. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Health and Rehabilitative services, Room 500 400 West Dr. M. L. King, Jr. Boulevard Tampa, Florida 33614 Elizabeth Horton 3710 11th Street East Bradenton, Florida 34208 Alfrader Cotton Qualified Representative 3710 11th Street East Bradenton, Florida 34208 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services Building Number Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services Building Number Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
