The Issue The issue for determination in this case is whether Respondent's license to operate a child day care facility should be revoked for violations of Chapter 402, Florida Statutes, and Rule Chapter 10M-12, Florida Administrative Code.
Findings Of Fact Petitioner, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, HRS, is the agency of the State of Florida vested with the statutory authority to license and inspect child day care facilities. Respondent ELMER ROGER PILLSBURY holds a provisional license issued by HRS to operate WHITFIELD ACADEMY, a child day care facility located in Manatee County, Florida. Respondent KAREN PILLSBURY is the manager of WHITFIELD ACADEMY, and is responsible for the day-to-day operations of the facility. In addition to managing WHITFIELD ACADEMY, Respondent KAREN PILLSBURY also operates Kinder Kare Day Care, another licensed child day care center in Manatee County, Florida. At all material times, Respondents ELMER ROGER PILLSBURY and KAREN PILLSBURY have been married. WHITFIELD ACADEMY was first licensed by HRS on June 27, 1989. At that time KAREN PILLSBURY was the owner of the facility. On June 1, 1990, ownership of the facility was transferred from KAREN PILLSBURY to ROGER ELMER PILLSBURY. After the transfer of ownership, KAREN PILLSBURY continued as the operator of the facility, and was in control of the management of the facility. WHITFIELD ACADEMY has an authorized licensed capacity of one hundred and thirty five children. During the period relevant to this proceeding the facility has had a daily census ranging from thirty to ninety children, with an average between fifty and sixty children per day. Staffing at the facility has ranged from four to nine employees. Pursuant to statutory authority, HRS routinely conducts quarterly inspections of licensed child day care facilities. HRS also routinely investigates complaints filed against licensed child day care facilities. Beginning in 1989 and continuing through 1995, HRS has cited Respondents for numerous statutory and rule violations including the following charges set forth in the Administrative Complaint: child abuse; failure to comply with staff/child ratios; failure to maintain direct supervision; improper storage of dangerous chemicals; roach infestation; fire code violations; failure to repair shattered glass in a window; corporal punishment; unsanitary bathrooms; failure to designate staff left in charge; nonconstructive discipline; and failure to cooperate with health officials in responding to an outbreak of Hepatitis A. Child Abuse On or about April 25, 1989, Respondent KAREN PILLSBURY, while working at Kinder Kastle Day Care, disciplined an eighteen-month old child for biting other children by "popping" the child on his mouth with her finger. Respondent KAREN PILLSBURY considered this form of discipline appropriate to prevent small children from biting other children. It is accepted practice by some child development professionals that nonexcessive physical contact may be used as a deterrence to prevent children from biting others. HRS has promulgated Rule 10M-12.013(1)(c), Florida Administrative Code, which prohibits any form of physical punishment in a child care facility. As a result of this incident, a complaint was filed with HRS against KAREN PILLSBURY. HRS investigated the complaint and on May 30, 1989, filed an Administrative Complaint against KAREN PILLSBURY d/b/a/ Kinder Kastle Day Care for violations of HRS's child care standards which, as set forth above, prohibit any corporal discipline on a child in a child care facility. As a result of this administrative action, KAREN PILLSBURY was assessed a fine of $100, which was paid on January 16, 1990. In addition to the administrative fine imposed on Kinder Kastle, on September 29, 1989, as a result of this incident, HRS also proposed to confirm a report of child abuse against Respondent KAREN PILLSBURY for using excessive corporal punishment. Respondent did not seek administrative review of HRS's decision to classify the report as confirmed child abuse. Instead, Respondent applied for an exemption to continue working in a child day care facility. Respondent's application for exemption was denied by HRS on November 20, 1989, and Respondent then sought administrative review of HRS's decision to deny her request for exemption filed with DOAH as Case No. 90-007C. During the pendency of the administrative review denying Respondent KAREN PILLSBURY's application for exemption, Respondent continued to have contact with children at her child care facilities. HRS thereafter filed an Emergency Complaint seeking injunctive relief against Respondent in circuit court, (Case No. CA90-912, Fla. 12th Cir.), and on March 26, 1990 an injunction was issued by the court prohibiting Respondent from being present at Kinder Kastle or Whitfield Academy. Prior to hearing scheduled in the administrative case, HRS and Respondent KAREN PILLSBURY, on May 22, 1990, entered into a stipulated settlement, under the terms of which HRS agreed to grant Respondent an exemption to work at child day care facilities, and Respondent agreed to dismiss the administrative action, receive counseling with regard to alternative ways to modify a child's behavior without the use of corporal punishment, and obtain instruction in social behavior modification. Respondent KAREN PILLSBURY has complied with the terms of the stipulated settlement in DOAH Case No. 90-007C. On June 4, 1990, the circuit court injunction against Respondent was set aside, and Respondent resumed her duties at Kinder Kastle and Whitfield Academy. Staff/Child Ratio Violations HRS has promulgated Rule 10M-12.002(5)(a)1., Florida Administrative Code, which establishes ratios for personnel to children in child day care facilities. The ratios are dependent upon the ages of the children at the facility. During inspections of child day care facilities HRS staff observe the number of children being supervised by facility personnel and record the ratios. HRS staff does not personally check the ages of the individual children in a supervised group, but relies on personal observation as well as the representations made by the facility personnel to determine the ages of the children and whether the ratios are appropriate. Since 1989, WHITFIELD ACADEMY has been cited by HRS for staff/child ratio deficiencies on at least twelve occasions. On September 14, 1989, during a routine quarterly inspection at WHITFIELD ACADEMY, an HRS inspector observed there was one staff member for fourteen children between the ages of one year and two and one half years. The HRS staff/child ratio at that time required one staff member for eight children aged one to two years old and one staff member for twelve children aged two to three years old. The inspection report cited WHITFIELD ACADEMY for this deficiency. At the reinspection of the facility on October 2, 1989, the ratio for this group of children remained at one staff member to fourteen children, and had not been corrected. At reinspection on October 16, 1989, the deficiency was corrected. On April 11, 1990, during the investigation of a complaint filed against WHITFIELD ACADEMY, HRS cited the facility for a staff/child ratio deficiency because two staff members were supervising a group of thirty-eight children who appeared to be of varying ages ranging from three to five years old. The inspection report cautioned WHITFIELD ACADEMY with respect to mixing children of different ages in supervised groups. Upon reinspection by HRS staff on April 25, 1990, this deficiency was corrected. As a result of a complaint filed against WHITFIELD ACADEMY, an inspection was also conducted on April 25, 1990, regarding the staff/child ratio for younger children. At that time HRS staff observed twelve children who appeared to be from under one year old to two years old in the care of one staff member. The staff/child ratio required for children under one year old was one staff member to six children, and for children of one year of age was one staff member for eight children. WHITFIELD ACADEMY was cited for this deficiency. Upon reinspection by HRS staff on May 2, 1990, this deficiency was corrected. On July 11, 1990, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervising fourteen children, some of whom appeared to be under one year old. Upon reinspection on July 25, 1990, this deficiency was corrected. The staff/child ratio deficiencies at WHITFIELD ACADEMY did not reoccur until March 31, 1992. At that time an HRS inspector cited the facility as deficient when the inspector observed one staff member supervising seven children under the age of one year old in the nursery for a short period of time, approximately twenty to thirty minutes. The required staff/child ratio at that time was one staff member to six infants. Upon reinspection on April 14, 1992, this deficiency was corrected. On August 4, 1992, HRS again cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervise seven infants for a short period of time when another staff member was on leave. Upon reinspection on September 10, 1992, this deficiency was corrected. On January 14, 1993, a complaint was filed with HRS against Respondents WHITFIELD ACADEMY and KAREN PILLSBURY for a staff/child ratio deficiency of one staff member for eight infants under one year old. The deficiency lasted for approximately one hour. In addition, the complaint alleged that on one occasion a staff member left children in the toddler area alone to obtain records for a health nurse, and that two children were sleeping out of the sight of a staff member. As a result of this complaint, on March 10, 1993, administrative action was taken against Respondents, and a fine in the amount of $250 was assessed. Respondents paid the fine on April 8, 1993. On April 21, 1993, Respondents submitted a corrective action plan to HRS to address the problems identified in this complaint. On August 18, 1993, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervise five infants under one year old. At this time the required ratio had changed from one staff member to six infants, to one staff member to four infants. Upon reinspection on September 1, 1993, this deficiency was corrected. On February 9, 1994, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency when an inspector observed two toddlers among a group of older children in the playground. This deficiency was immediately corrected. On March 29, 1994, and on April 20, 1994, HRS received complaints that on two separate occasions the staff/child ratios at WHITFIELD ACADEMY were improper because of the mixing of children of different ages. The allegations of the complaints were verified by HRS, and an administrative fine was assessed against WHITFIELD ACADEMY in the amount of $300 on May 12, 1994. The fine was paid on August 18, 1994. On February 23, 1995, HRS initially cited WHITFIELD ACADEMY for a staff/child ratio deficiency; however, on the same date, when the age of the child in question was verified by reviewing the facility's records, this citation was found to be without basis. On March 23, 1995, HRS cited WHITFIELD ACADEMY for a staff/child deficiency for having one staff member for seventeen children ages two and three when the required ratio was one staff member for eleven two year olds and one staff member for fifteen three year olds. Upon reinspection on April 11, 1995, this deficiency was not corrected. Upon another reinspection on April 21, 1995, this deficiency was corrected. WHITFIELD ACADEMY has experienced difficulty in retaining qualified staff. Some instances of noncompliance with staff/child ratios resulted from staff at the facility being ill, taking breaks, and the failure of staff to report for work. Except for the citations issued on September 14, 1989, and March 23, 1995, all instances of staff/child ratio deficiencies at WHITFIELD ACADEMY were corrected in a timely manner. Failure to Provide Direct Supervision On six occasions WHITFIELD ACADEMY has been cited by HRS for failure to comply with departmental rules governing direct supervision of children at a child day acre facility. HRS has promulgated Rule 10M-12.005(5)(a)2., Florida Administrative Code, which requires personnel at a child day care facility to watch and direct the children's activities with close proximity, within the same room or enclosed outdoor play area, and to be present with the children at all times during the day, including during meals, nap time, and snack time. On September 14, 1989, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because a staff member at the facility was going in and out of her classroom to assist another staff member at snack time. Upon reinspection on October 2, 1989, the HRS inspector observed children left alone at the facility, and determined that this deficiency had not been corrected. Upon a further reinspection on October 6, 1989, the deficiency was corrected. On April 11, 1990, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because children were being allowed to leave the playground to go inside to use the bathroom unattended by a staff member. This deficiency was corrected at reinspection on April 25, 1990. On August 4, 1992, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because volunteers at the facility were being allowed to supervise children out of the presence of a trained staff member. At reinspection on September 10, 1992, this deficiency was corrected. As set forth in Paragraph 23, above, the complaint filed on January 23, 1993, against Respondents WHITFIELD ACADEMY and KAREN PILLSBURY alleged, in addition to a staff/child ratio deficiency, a failure by Respondents to provide direct supervision, in that on one occasion a child was left unattended when a staff member retrieved records for a health nurse, and further alleged that during nap time, some children could not be directly observed by facility staff. This complaint was verified by HRS and resulted in an administrative fine of $250, which Respondents paid on April 21, 1993. Respondents also submitted a corrective action plan which addressed these problems. On August 3, 1994, HRS received a complaint that children at WHITFIELD ACADEMY were not being supervised because one staff member was observed sleeping, and another staff member would, on occasion, leave the room. On August 11, 1994, HRS sent WHITFIELD ACADEMY a warning letter concerning the complaint, and by August 29, 1994, Respondents took corrective action, including dismissal of the staff member found sleeping. On December 19, 1994, HRS received a complaint against WHITFIELD ACADEMY alleging that a five month old child, while strapped in an infant chair, was pushed off a table by a one year old child and received a concussion. The complaint alleged that the two staff members present at the time of the incident were not watching the children. This incident occurred because a child had spilled milk, and one staff member was momentarily involved in cleaning up the spilled milk. The infant was not seriously injured. Improper Storage of Dangerous Chemicals Beginning in 1989, HRS has cited WHITFIELD ACADEMY for improper storage of dangerous chemicals on thirteen occasions. In this respect, HRS has promulgated Rule 10M-12.003(1)(d), Florida Administrative Code, which requires that cleaning supplies, flammables, and other potentially poisonous or dangerous supplies be kept out of the reach of children, and in such a manner as to insure the safety of children. The thirteen citations issued by HRS against WHITFIELD ACADEMY for this deficiency largely result from a failure to lock a supply storage room door at the facility. The supply storage room at the facility is located next to the boys' bathroom and contains cleaning supplies, as well as cans of paint. The supplies and paint are stored on shelves beyond the reach of children. On September 14, 1989, during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed the door to the supply storage room unlocked. This deficiency was corrected at reinspection on October 2, 1989. On November 13, 1989 during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed a can of Lysol spray disinfectant on the toilet tank in the toddler bathroom. This deficiency was corrected at reinspection on November 30, 1989. On February 20, 1990, during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed the door to the supply storage room unlocked. This deficiency was corrected at reinspection on March 6, 1990. During the inspection of WHITFIELD ACADEMY conducted on April 11, 1990, as set forth in Paragraph 18, above, the supply storage door was not locked. This deficiency was corrected at reinspection on April 25, 1990. At a routine quarterly inspection of WHITFIELD ACADEMY on July 11, 1990, items used for crafts, such as paint and hair spray, were observed in an unlocked cabinet in the playroom. This deficiency was corrected at reinspection on July 25, 1990. During a routine quarterly inspection of WHITFIELD ACADEMY on October 16, 1990, the door to the supply storage room was unlocked. This deficiency was corrected at reinspection on October 30, 1990. During a routine quarterly inspection of WHITFIELD ACADEMY on January 9, 1991, the door to the supply storage room was unlocked. This deficiency was not corrected at reinspection on January 24, 1991, but was corrected at reinspection on February 7, 1991. On May 31, 1991, during a food service inspection at WHITFIELD ACADEMY, cleaning chemicals were observed stored over a food preparation counter. At reinspection on June 17, 1991, this deficiency was corrected. Except for the January 9, 1991 citation, all storage deficiencies relating to storage of cleaning supplies and other such materials were corrected in a timely manner. Children at WHITFIELD ACADEMY did not have access to cleaning supplies, flammables, or other potentially poisonous or dangerous chemicals. Pest Control Deficiencies On three occasions since 1989, WHITFIELD ACADEMY has been cited for failure to maintain appropriate sanitation due to problems with pest control. On each occasion evidence of roaches was found at the facility. On January 24, 1991, HRS conducted an inspection of WHITFIELD ACADEMY in response to two complaints filed with the department which alleged that evidence of roaches had been observed at the facility, and that the facility did not conduct appropriate fire drills.. During the inspection, live roaches were observed in the kitchen, behind the soda machine, and in cabinets above and beside the sink. This deficiency was classified as a major infestation. At reinspection on February 8, 1991, the deficiency had been corrected. During a routine food inspection at WHITFIELD ACADEMY on May 31, 1991, live roaches were observed in three different areas. This deficiency was classified as a significant infestation. A routine quarterly inspection conducted on June 6, 1991 also showed evidence of live roaches in the nursery and playroom. At reinspection by the food inspector on June 17, 1991, the deficiency had been corrected, and reinspection again by HRS on July 5, 1991, confirmed that the problem was corrected. All deficiencies cited by HRS against WHITFIELD ACADEMY relating to maintaining proper pest control were corrected in a timely manner. Failure to Designate Staff In Charge On two occasions since 1989, HRS cited WHITFIELD ACADEMY for failure to designate a staff member left in charge of the facility contrary to Rule 10M- 12.002(2)(a), Florida Administrative Code, which requires that when the operator of a facility is absent, a person over 21 years of age must be in charge of, and present at the facility at all times. On October 14, 1992, an HRS food service inspector during a routine inspection of WHITFIELD ACADEMY was unable to locate a specific staff member at the facility willing to accept the food service inspection report. At the time of the inspection KAREN PILLSBURY was absent from the facility. The report was eventually accepted and signed for by Connie Jimenez, an employee of the facility at that time, who was more than 21 years of age. On May 10, 1994, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to designate a person in charge. The HRS inspector did not observe or review a posted list of employees of the facility to determine if any employee had been designated in charge at that time. This deficiency was corrected at reinspection on May 24, 1994. Respondent KAREN PILLSBURY, the operator of WHITFIELD ACADEMY, posts a list of employees in her office which designates the employee in charge in her absence. Because of the chronic problems encountered during inspections by HRS at WHITFIELD ACADEMY, employees of the facility were reluctant to acknowledge responsibility for the facility and accept HRS inspection reports. Fire Code Violations On January 24, 1991, in response to the complaints described in Paragraph 48, above, a deputy fire marshal with the Southern Manatee Fire & Rescue District, verified that WHITFIELD ACADEMY did not comply with appropriate fire code standards in that the employees were not properly trained in fire drill procedures, the fire drill log was not properly completed, and the fire drill log inaccurately reflected that fire drills had been regularly conducted at the facility. These deficiencies were corrected at reinspection on February 8, 1991. Premises Safety Hazards On October 10, 1990, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to maintain outdoor equipment free from hazards. This deficiency was cited because of a shattered window pane glass located on the side of the building next to the playground. At reinspection on October 30, 1990 the deficiency had not been corrected. The deficiency had been corrected by reinspection on November 13, 1990. Respondents replaced the shattered window pane glass with a shatterproof new window which required a special order. The delay in correcting this deficiency was caused by the shipping time for this special order. Unsanitary Conditions On February 23, 1995, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to maintain adequate toilet facilities in violation of Rule 10M-12.003(6)(b), Florida Administrative Code, because of a clogged toilet in the boys' bathroom. The toilet was clogged again at reinspection on March 9, 1995. At reinspection on March 23, 1995, this deficiency was corrected. Children at WHITFIELD ACADEMY occasionally placed items in the toilets. Respondents cleaned and unclogged the toilets on a timely basis. The incident described in Paragraph 59, above, resulted from a child. Corporal Punishment On or about August 17, 1994, an abuse report was filed with HRS alleging that an employee of WHITFIELD ACADEMY used corporal punishment in the discipline of her own child who was attending the facility. The report further alleged that the corporal punishment was inflicted on the child with the permission of Respondent KAREN PILLSBURY in violation of Rule 10M-12.013(1)(c), Florida Administrative Code. This incident resulted in a proposed confirmed report of abuse. Respondent KAREN PILLSBURY did not authorize or otherwise permit the infliction of corporal punishment by an employee of WHITFIELD ACADEMY in the discipline the employee's child on or about August 17, 1994. Nonconstructive Discipline During a routine quarterly inspection on April 7, 1995, HRS cited WHITFIELD ACADEMY for subjecting a child to severe, frightening or humiliating discipline in violation of Rule 10M-12.013(1)(b), Florida Administrative Code. At this time an employee was attempting to restrain a child from biting other children, and was overheard by an HRS investigator to say to the child, "Are you crazy, are you out of your mind?" Respondent KAREN PILLSBURY was not present at the facility when this incident occurred. Respondent KAREN PILLSBURY took remedial measures to address this incident with the employee, and upon reinspection on April 21, 1995, this deficiency was corrected. Hepatitis A Outbreak At the end of July of 1992, twenty-one cases of Hepatitis A, a highly infectious disease, were reported in Manatee County, Florida. At least one reported case was related to a child who had formerly been in attendance at WHITFIELD ACADEMY. The Manatee County Public Health Unit determined that in addition to the former attendee at the facility, thirteen of the other twenty- one reported cases had an association with WHITFIELD ACADEMY. There were no confirmed cases of Hepatitis A found in children in attendance at WHITFIELD ACADEMY, nor in any employees of the facility at that time. As a result of the association of reported cases of Hepatitis A with WHITFIELD ACADEMY, Manatee County Public Health officials recommended that preventative measures be taken at the facility, and that attendees and employees of the facility be tested for immunity to the disease, and if not immune receive Immune Globulin injections. Notifications were also sent to the parents of attending children. Arrangements were made with Manatee County Public Health to provide Immune Globulin injections at WHITFIELD ACADEMY. On the day the injections were given, there was insufficient Immune Globulin available to provide immunizations to all attendees, parents, and employees of the facility, including the Respondents and their family, who had requested the injections. Persons unable to obtain injections at the facility were instructed to contact the Manatee County Public Health Unit; however, there were further problems with obtaining sufficient Immune Globulin which resulted in delays in the inoculation of some of those persons requesting the treatment. Respondents and their family members were inoculated with Immune Globulin. As a result of the initial failure of the Respondents to receive Immune Globulin, and other problems relating to the recommendations for preventative measures at the facility, on August 7, 1992, HRS instituted proceedings in circuit court, Case No. CA-92-003149, Fla. 12th Cir, seeking a temporary restraining order against WHITFIELD ACADEMY from operation for at least sixty days. To resolve this action, WHITFIELD ACADEMY agreed to close from August 12, 1992 through August 23, 1992, to complete a terminal cleaning of the facility by August 24, 1992, to continue immunizations for at least six weeks after any reported case of Hepatitis A was associated with the facility, and to implement certain sanitation measures. The agreement was incorporated into an Order entered by the circuit court on August 24, 1992. Respondents complied with the terms of this agreement. Respondents reasonably cooperated with HRS officials in addressing the problems associated with the outbreak of Hepatitis A in July of 1992. Subsequent to August 24, 1992, there were no confirmed reports of cases of Hepatitis A associated with WHITFIELD ACADEMY. Other Violations On October 30, 1990, an employee of WHITFIELD ACADEMY informed HRS inspectors that a reinspection of the facility could not be conducted until Respondent KAREN PILLSBURY returned. After being shown Section 402.311, Florida Statutes, which authorizes HRS inspections, the employee allowed the inspectors to conduct a partial reinspection. Upon Respondent's return, an inspection was completed. This violation has not reoccurred. During a routine inspection on September 11, 1990, HRS cited WHITFIELD ACADEMY for failure to maintain proper medical examination certificates or immunization records in violation of Rule 10M-12.008, Florida Administrative Code. This deficiency was not corrected at reinspection on September 28, 1990; however these records were subsequently brought into compliance. As a result of the continuing problems at WHITFIELD ACADEMY relating to the record-keeping and other deficiencies, two meetings were conducted on April 16, 1991, with HRS representatives and Respondents and their counsel, at which time agreement on a course of action for resolving these problems was reached. Respondents have made a reasonable effort to comply with this agreement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A Final Order be entered finding that the charges against Respondents ELMER ROGER PILLSBURY, KAREN PILLSBURY, and WHITFIELD ACADEMY are insufficient to warrant licensure revocation, and that the Administrative Complaint filed against Respondents be DISMISSED. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of November, 1995. RICHARD HIXSON 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 this 29th day of November, 1995. APPENDIX As to Petitioner's Proposed Findings 1 - 2. Accepted and Incorporated. 3 - 5. Accepted and Incorporated except that Respondent also has complied with the terms of the settlement agreement. 6 - 7. Accepted and Incorporated except that the deficiencies were corrected. 8. Accepted, except that Respondents and their counsel agreed to cooperate with HRS to remedy the problems. 9 - 15. Accepted and Incorporated, except that the cited deficiencies were corrected. 16. Accepted, except that the replacement glass was on special order, and the problem was corrected. 17 - 25. Accepted, except that the deficiencies were corrected. 26. Accepted, except that Respondents reasonably cooperated with health officials and were finally inoculated. 27 - 35. Accepted and Incorporated, except that the deficiencies were corrected. Rejected to the extent that Respondent authorized corporal punishment. Rejected as irrelevant. 38 - 42. Accepted and Incorporated, except that the deficiencies were corrected. COPIES FURNISHED: Raymond R. Deckert, Esquire DHRS, District 6 Legal Office 4000 W. Dr. Martin Luther King Jr. Blvd. Tampa, Florida 33614 Earl W. Baden, Jr., Esquire 1101 Sixth Avenue West Post Office Box 1907 Bradenton, Florida 34206 Robert L. Powell, Agency Clerk DHRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether CAP Head Start – Gibson Center (“Respondent”) committed the violations alleged in the Administrative Complaint issued by the Department of Children and Families (“the Department”) on February 12, 2018.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding: The Parties and Relevant Provisions of Law The Department is the state agency responsible for licensing child care facilities in Florida and ensuring that those facilities comply with requirements imposed through the Florida Statutes and the Florida Administrative Code. In order to fulfill that duty, the Department conducts routine and complaint inspections. Every facility receives three routine inspections a year. If the Department learns that a facility may have committed a violation, then the Department conducts a complaint inspection within 48 hours of receiving the information. The Department classifies violations as Class I, Class II, or Class III. Rule 65C-22.010(1)(d)1., defines Class I violations as those that “are the most serious in nature, pose an imminent threat to a child including abuse or neglect and which could or [do] result in death or serious harm to the health, safety or well-being of a child.” Rule 65C-22.010(1)(d)2., states that Class II violations “are less serious in nature than Class I violations, and could be anticipated to pose a threat to the health, safety or well-being of a child, although the threat is not imminent.” Rule 65C-22.010(1)(d)3. provides that Class III violations “are less serious in nature than either Class I or Class II violations, and pose a low potential for harm to children.” If a facility commits three or more Class I violations within a two-year period, Rule 65C-22.010(2)(e)1.b., mandates that the Department shall suspend, deny or revoke the facility’s license. Section 39.201(1)(a), Florida Statutes, requires that [a]ny person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to [the Department] in the manner provided in subsection (2). Section 39.201(2)(a), requires that [e]ach report of known or suspected child abuse, abandonment, or neglect by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare as defined in this chapter, except those solely under s. 827.04(3), and each report that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall be made immediately to [the Department]’s central abuse hotline. Rule 65C-22.001(11)(b) specifies that “[f]ailure to perform the duties of a mandatory reporter pursuant to Section 39.201, F.S., constitutes a violation of the standards in Sections 402.301-.319, F.S.” Respondent is a federally funded, nonprofit agency with its corporate headquarters in Pensacola, Florida. Respondent has 190 employees and four core programs, the largest of which is a Head Start program serving 935 children in Escambia County. The Gibson Center in Pensacola is a Florida-licensed childcare facility and part of Respondent’s Head Start program. The Gibson Center cares for 190 children every school day and transports 160 children to and from its facility on buses. The September 20, 2017 Incident On September 20, 2017, a bus dropped off children at the Gibson Center, but the bus driver and her aide failed to conduct a complete visual sweep3/ to ensure that all the children had left the bus. As a result, no one realized that a five- year-old child, J.H., was still on the bus until the children arrived at their classroom. The bus driver briefly left the bus to retrieve a stapler from her car, drove to the “bus pen,” and began completing paperwork. After the aide called the driver to inquire if J.H. was still on the bus, the driver found J.H. asleep on a seat and unbuckled. J.H. was unattended on the bus for approximately five minutes. The bus driver and aide disclosed the incident to their supervisors. The September 28, 2017 Incident On September 28, 2017, Shenevia Jones, a bus driver’s aide, conducted a visual sweep to ensure that all of the children were off a bus but failed to notice that a four-year- old child, M.J., was hiding under a seat. M.J. remained on the bus while it took 20 minutes to complete an additional route. Upon the bus’s return to the Gibson Center, Ms. Jones discovered the child after he sprang from under a seat and said “ta dah.” Respondent’s Actions Following the Incidents Respondent’s upper management met on September 21, 2017, to discuss the September 20th incident and decided that a review of the loading and unloading procedures would be conducted with drivers and aides on September 22, 2017. In addition, the Executive Director would discuss the incident with all employees on September 23, 2017. After the September 28th incident, Respondent’s management decided that a more robust response was necessary. As a result, Ms. Jones was suspended for three days without pay, and Respondent rewrote its procedures for loading and unloading buses.4/ According to Respondent, these new procedures were “site specific” in that larger facilities such as the Gibson Center had different procedures than smaller ones.5/ Deborah Nagle, Respondent’s Director of Compliance, Governance, and Head Start, reported both incidents to the regional Health and Human Services (“HHS”) Office in Atlanta, Georgia via an October 6, 2017, e-mail. As a federally-funded, non-profit agency, Respondent receives funding from HHS. HHS issued a report on February 15, 2018, finding that Respondent violated a federal regulation prohibiting a child care program from leaving a child behind in a classroom or on a vehicle. Ms. Nagle and Doug Brown, Respondent’s Executive Director, discussed whether the incidents amounted to “neglect” within the meaning of Chapter 39 and determined they were not reportable events. In October of 2017, the Department issued a new handbook to child care facilities, and this handbook contained a section about reporting neglect. After reviewing the aforementioned section, Ms. Nagle sent an e-mail to Roger Thompson, the Department’s Supervisor of Child Care Regulation in Escambia, Santa Rosa, Okaloosa and Walton Counties, on Friday, December 8, 2017,6/ describing the incidents: I have attached 2 incidents we had with children on the bus along with the revised procedure. We had reported this to our Regional office and have worked with our Training and Technical Assistance to complete a corrective action plan and put enhanced monitoring in place. All staff will be trained on Jan. 2 when we return from the Christmas break on the revised procedures. I felt it necessary to send this information to you after reading the new Field manual which lists items we must have in policy on reporting on page 27. I will be out of the office until Dec 15th, but will be able to retrieve e-mail while traveling. Mr. Thompson responded on Monday, December 11, 2017, with the following message: Was the Hotline called on the incident? Also, that needs to be addressed in the [corrective action plan]. Anything like this needs to be reported immediately to the Hotline. Not reporting can resort in an additional Class I violation. Ms. Nagle responded 13 minutes later by stating the incidents were not reported. Just over an hour later, Ms. Nagle transmitted the following inquiry: I have a question. Is what happened considered an abuse report? To my knowledge there has not been any specifics on what is reported other [than] injury to a child or a report from a parent or other staff member that there was abuse []. We did not consider these as reportable, but due to the new field guide thought it necessary to inform you. So far every call we have made to the hotline when it was deemed an abuse situation was only taken as information. Mr. Thompson responded five minutes later with the following: Remember . . . it isn’t always ABUSE. It is anything that possibly fits Abuse and/or Neglect. This was NEGLECT. If you contact Paula Doty at the Gulf Coast Kids House, she will do a great training for free at your location. She goes into the details. It would be great for your staff, in-service training credit, and it may head some of this stuff off at the pass. The Department’s Investigation Mr. Thompson initiated a complaint investigation, and two Department employees, Casey Gully and Shacondra Primm, inspected the Gibson Center on December 13, 2017. During that inspection, one of Respondent’s teachers showed Ms. Primm a hole in the floor of a modular classroom unit. Approximately one week prior to the inspection, the teacher’s foot had fallen through the floor, resulting in a 6 inch by 12 inch hole about 3 to 4 feet from the classroom’s entrance. At the time of the inspection, a trashcan and caution tape covered the hole. Respondent was in the process of collecting bids to have the hole fixed over the Christmas break.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families issue a Final Order imposing a $1,000.00 fine on Respondent. DONE AND ENTERED this 10th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2018.
The Issue Whether Respondent, a licensed child care facility, committed two Class I violations as alleged in the Administrative Complaint; and, if so, the appropriate penalty, including whether Petitioner may terminate Respondent's participation in the Gold Seal Quality Care program.
Findings Of Fact The Department is the state agency responsible for licensing and regulating child care facilities in the state in Florida. StarChild is a licensed child care facility located in Apopka, Florida. StarChild is designated as a Gold Seal Provider and has a contract with the Early Learning Coalition to provide school readiness services. As a designated Gold Seal Quality Care Provider, StarChild is subject to the provisions of section 402.281, Florida Statutes. In order to obtain and maintain a designation as a Gold Seal Quality Care provider, a child care facility must not have had any Class I violations, as defined by rule, within the two years preceding its application for designation as a Gold Seal Quality Care provider. § 402.281(4)(a), Fla. Stat. "Commission of a Class I violation shall be grounds for termination of the designation as a Gold Seal Quality Care provider until the provider has no Class I violations for a period of two years." § 402.281(4)(a), Fla. Stat. 1 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day timeframe for issuance of the Recommended Order. See Fla. Admin. Code R. 28-106.216. As of the date of the final hearing, StarChild had never had a Class I violation. The May 5, 2020, Incident At all times relevant to this case, CJ was a two-year-old boy who attended StarChild. On May 5, 2020, CJ, along with several other children and two teachers, were in a two-year-old classroom at StarChild. The actions of the children and a teacher, Ms. Crisman, were recorded by a surveillance camera mounted in the room. The factual allegations in the Administrative Complaint are primarily based on an incident captured on video. In the video, CJ is seen interacting with other children in the room. The children are all engaged in different activities; some are standing while others are sitting on the floor. CJ stood near a group of children who were sitting on the floor in close proximity to Ms. Crisman, who also sat on the floor. CJ walked up behind another child who sat in front of Ms. Crisman. CJ placed his hands on the other child's shoulders. The other child turned his torso toward CJ, while still sitting, and pushed CJ away from him. This was by no means a hard push. CJ stumbled into a seated position and then immediately thereafter laid on his back. CJ remained laying on his back for approximately five to ten seconds, during which he playfully kicked his feet. Ms. Crisman stood up from her seated position, walked over to CJ, and stood over him. She then grabbed CJ by both wrists and forcefully yanked him off the ground. It is clear from the video that Ms. Crisman used great force when she pulled CJ off the floor—CJ's feet flew up in the air and his head flew back. Ms. Crisman then pulled CJ, by his wrists, approximately ten feet across the room, and placed him in a corner in timeout. CJ sat in the corner clutching his arm. Zuleika Martinez (Ms. Martinez) was one of the two teachers assigned to CJ's classroom. She was not present during the incident, but came back to see CJ sitting in timeout. Ms. Martinez noticed that CJ was favoring one hand over the other. Approximately 30 minutes after noticing this, Ms. Martinez notified Deborah Files (Ms. Files). Ms. Files has been employed by StarChild since March 2005, and has been serving as the Director of StarChild since April 2020. Ms. Files walked over to the classroom to check on CJ and speak to Ms. Martinez. She learned that CJ was holding his arm and he would not use it for play or to eat. Ms. Files brought CJ into StarChild's front-desk area—the area typically used for children who are not feeling well. Ms. Files iced CJ's arm. Shortly thereafter, Ms. Files contacted Shelby Feinberg (Ms. Feinberg). At the time of the incident, Ms. Feinberg was the Executive Director of StarChild. Ms. Feinberg was working remotely and, therefore, not at StarChild's facility. Ms. Files explained to Ms. Feinberg that CJ appeared to be having difficulty utilizing one of his arms. Ms. Feinberg advised Ms. Files to contact CJ's parents. Ms. Files contacted CJ's mother, Meghan Jones, at approximately 11:00 a.m. Ms. Files reported to the mother that CJ was favoring one arm, and that he was not using the other arm at all. Ms. Files encouraged Ms. Jones to pick CJ up. At approximately 12:30 p.m., CJ's father, Kurt Jones (Mr. Jones), arrived at StarChild to pick CJ up. Mr. Jones found CJ in the classroom, lying on the floor. He told CJ to get up. CJ attempted to push himself up off the floor but was unable to do so. CJ appeared to be in pain and unable to support his body weight on his arm. It was clear to Mr. Jones that his son was in pain. Mr. Jones had difficulty getting CJ strapped into his car seat. Mr. Jones drove CJ to their home, which was five minutes away. When at home, Mr. Jones noticed that CJ still appeared to be in pain. Mr. Jones noticed that CJ would not move or touch his arm. He was holding his arm as if it was in a sling. CJ would periodically cry. Mr. Jones grew worried as his son still appeared to be in pain and did not seem to be getting better as time passed. Mr. Jones considered taking CJ to the emergency room but decided against it because of concerns related to the COVID-19 pandemic. He could not take CJ to his primary care pediatrician as there were scheduling difficulties also tied to the COVID-19 pandemic. The family's usual after-hours urgent care pediatrics office did not open until 4:00 p.m. At approximately three or four hours after picking CJ up from StarChild, Mr. Jones, with few options, searched for help on the internet. He researched possible causes of CJ's pain and why he was holding his arm like a sling. After watching several videos, he came across a YouTube video made by a nurse who described a condition called "nursemaid elbow." A nursemaid elbow is a dislocated elbow. The symptoms matched what CJ was experiencing and Mr. Jones determined CJ had dislocated his elbow. The video provided instructions on how to correct the nursemaid elbow. Desperate to help his son who was still in pain, he attempted the procedure to put CJ's elbow back in place. Mr. Jones followed the instructions. He heard a "pop" noise, which was to be expected per the instructions in the video. CJ cried for ten to 15 seconds. Thereafter, CJ regained full mobility of his arm and no longer appeared to be in pain. CJ began acting like his typical self. The next day, Mr. and Mrs. Jones took CJ to his pediatrician. CJ was diagnosed with nursemaid elbow. They were advised that the procedure that Mr. Jones conducted the previous day was the correct one. The Department conducted an investigation of the incident. As part of its investigation, the Department scheduled an examination of CJ by its Child Protective Team (CPT). Margarita Diaz (Nurse Diaz) is a pediatric nurse practitioner who works for CPT. She has been with CPT for three years. She has received extensive training in child abuse. On May 7, 2020, she did a complete head- to-toe examination of CJ. She reviewed the history of CJ's injury provided by CJ's parents and collateral information which included the video of the incident. She diagnosed CJ as having suffered a nursemaid elbow due to child abuse. Nurse Diaz described a nursemaid elbow as a condition that occurs when the ligament in the elbow gets trapped between two bones. When a child's arm is pulled away, the tendon slips down. When the arm goes back into place, the tendon gets stuck between the humerus and the radial bones. When this condition happens, it is usually very painful for the child. The child often presents as protective of the arm and will not move it. Nurse Diaz further testified that the most common mechanism of injury is when a child is pulled. Other mechanisms for injury include swinging or lifting a child by the arm. She testified that a nursemaid elbow is easy to correct and once corrected, a child is back to normal in five to ten minutes. Nurse Diaz testified that her finding of child abuse was based on her observations of the actions of the teacher as shown in the video. She confirmed that the actions of the teacher in the video were consistent with the infliction of a nursemaid elbow injury on CJ. StarChild's Response to Incident When Ms. Martinez reported CJ's injury, StarChild took immediate action to address the situation. They removed CJ from the classroom, tended to his injuries, promptly contacted his parents, and set out to find out the cause of the injury. StarChild administrators watched video footage of the activity leading up to CJ's change in behavior. In reviewing the video, StarChild determined that Ms. Crisman used improper form by lifting CJ by his wrists when moving CJ to the timeout corner. By noon on the same day of the incident, StarChild terminated Ms. Crisman's employment. StarChild then contacted the Department to report the incident. Mr. Jones made a request to review video footage of the incident. Danny King, the owner of StarChild, reached out to Mr. Jones personally and agreed to meet with him and Mrs. Jones to review the video together in person. The parents were informed that Ms. Crisman was terminated. Following the incident, StarChild developed a self-imposed Corrective Action Plan, that included re-training its entire staff. Ms. Feinberg met with all members of the staff and conducted in-person training in small class settings. All staff members were provided StarChild's discipline policy and child interaction policies. Staff members were also required to take a child abuse and training course. StarChild re-wrote its staff handbook to include stronger and clearer language about how children are to be moved and repositioned in the classroom. Additionally, StarChild implemented permanent policy changes which required discussions during weekly staff meetings about behavior and how staff members should positively deal with behavior in the classroom. All staff members were also provided with information on nursemaid elbow, specifically. StarChild has current plans to bring in guest speakers, such as a behavior management professional and a CPT speaker, to further educate their staff members. StarChild acted commendably in response to the incident. It took immediate and comprehensive action to try to reduce the probability of an incident like that occurring again. It must be noted that complete prevention is an impossibility. CJ continued to attend StarChild after the incident. Indeed, he attended StarChild the day after the incident and appeared to be in good spirits. CJ's younger sister was also enrolled at StarChild after the incident, when she was three-and-a-half months old.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families impose a fine of $100.00 against StarChild and revoke its designation as a Gold Seal Quality Care provider. DONE AND ENTERED this 19th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Brian Christopher Meola, Assistant General Counsel Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801 Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2021. Lucia C. Pineiro, Esquire Lucia C. Pineiro & Associates, P.A. Suite 309 717 Ponce de Leon Boulevard Coral Gables, Florida 33134 Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are whether Respondent, a licensed child care facility, committed a Class I Violation by allowing two children to leave the facility premises, unattended, as Petitioner alleges; and, if so, whether the licensee should be assessed a fine of $100.00.
Findings Of Fact Respondent L.O.T. Early Learning Center, LLC, d/b/a Little Innovators ("LOT"), holds a license, numbered C11MD1611, which authorizes the company to operate a child care facility in Miami Gardens, Florida. As the operator of a licensed child care facility, LOT falls under the regulatory jurisdiction of Petitioner Department of Children and Families ("DCF"). On the morning of September 20, 2018, a group of children in the care of LOT were on the playground, which is located outdoors, on the east side of the school building. Two teachers supervised this playtime. Somehow, two children, both about two years old, slipped away from the group, unnoticed. The little explorers walked around the back of the building (its south side), turned right at the southwest corner, and headed towards the front of the daycare center, traveling north along a sidewalk on the west side of the facility. A fence should have stopped the children from actually reaching the front of the building, but they managed to squeeze through the gate. Once through the gate, the children could have continued to walk, unimpeded, off the facility premises and into potentially dangerous places, such as the road. Fortunately, however, they never got that far. Indeed, the two children probably never even made it off the sidewalk adjacent to the school. Their excursion was cut short by a Good Samaritan who came along at the right time and escorted the unattended wanderers back inside. There is no clear and convincing evidence that the children ever left the facility premises. Ultimate Factual Determination LOT is not guilty of violating Standard #4-3, Child Left Premises——Staff Unaware, because the evidence failed to establish that the children left the school property, which is an essential element of the disciplinable offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding LOT not in violation of licensing standard 4.3, Child Left Premises——Staff Unaware. DONE AND ENTERED this 7th day of June, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2019.
The Issue At issue is whether Respondent committed the Class II violation alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is authorized to regulate child care facilities pursuant to sections 402.301 through 402.319, Florida Statutes. Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301 through 402.319. Chappell operates at eight child care locations in Duval and St. Johns Counties, admitting children from the ages of six weeks to five years. Chappell also has an after school program for children ages five to eight, and a summer camp for children ages five to ten. Chappell is licensed to operate the Child Care Facility at 8400 Baycenter Road, Jacksonville, Florida, pursuant to License Number C04DU0093. The facility on Baycenter Road is commonly called Chappell’s Deerwood facility. Gretrell Marshall works for the Department as a Licensing Counselor. She inspects child care facilities and family daycare homes to ensure they are not operating in violation of Department standards. She has worked for the Department for two years. Ms. Marshall’s previous experience includes operating a family daycare home for two years, and seven years as the owner and director of a licensed child care facility in Jacksonville. She has worked as an infant and toddler development specialist and holds a bachelor's degree in psychology. On October 10, 2019, Ms. Marshall went to Chappell to investigate a parent’s complaint that a child at the facility was repeatedly biting other children. The Department’s rules require child care facilities to document all accidents and incidents that occur while a child is in the care of program staff. The incident reports must be completed on the same day the incident occurs. The documentation of the incident must be shared with the child’s parent or guardian on the day the incident occurs. Chappell’s “accident/incident report” form contained spaces for the name and age of the child, the names of the teachers and other adults present, and the date and time of the incident. It had multiple choice check- boxes for location (classroom, playground, bathroom, cafeteria, or “other”); markings (abrasion, bite, bruise, bump, cut/tear, fracture, puncture, red mark, rug burn, scratch, sprain, or “other”); appendage (a list of 26 body parts); and first aid given (irrigate, antibacterial soap, bandage, ice pack, splint, or “other”). The form also included space for a narrative description of the accident or incident, and whether the parent was called. Ms. Marshall found several accident/incident reports that student E.W., a two-year-old boy, bit other children and a teacher between August 21 and October 4, 2019. On August 21, 2019, E.W. bit another student in the back while jostling for position in a line. The skin was not broken and the bite did not require first aid. Chappell recorded that the bite left bite marks. An August 27, 2019, incident report described two biting incidents on the same day. First, E.W. bit another student “just because” and pulled another student’s hair. Then, E.W. indicated to the teacher that he had to use the bathroom. The teacher took him to the bathroom but the child just ate toilet paper and urinated on himself. When the teacher tried to change his diaper, E.W. bit and kicked the teacher. For the August 27, 2019, incident, Chappell’s accident/incident report form left blank the first aid treatment space. The report noted the bites left bite marks. On September 11, 2019, E.W. bit another child in the back. Chappell’s accident/incident report recorded that first aid was administered, but did not specify the form of treatment. The report noted that the bites resulted in bite marks. Chappell reported that two biting incidents occurred on September 30, 2019. E.W. bit another student on the back during circle time. Later, when the students went outside to play, E.W. bit another child on the back without provocation. The teacher talked to him about being gentle with friends. The accident/incident report left blank the space for reporting first aid. On October 2, 2019, E.W. bit another student in the back. A different form, called a “behavior incident report,” was used by Chappell to record this incident. This form did not contain the check-boxes of the accident/incident report but simply provided space for a narrative “description of behavior incident.” The narrative stated that E.W. and other students were on the castle playhouse in the playground when E.W., “unprovoked,” bit another student on the back. Chappell did not record whether this bite left marks or required first aid. On October 4, 2019, at 12:40 p.m., E.W. bit another student on the right shoulder during play time in their classroom. The accident/incident report recorded that the bite left a bite mark. The space on the form to indicate whether the bite required first aid was left blank. A separate accident/incident report completed on October 4, 2019, documented that E.W. bit another student at 3:15 p.m., while the children were lining up at the door of the classroom. The report did not indicate whether there were bite marks or whether first aid was required. Chappell intended to suspend E.W. for one day on October 4, 2019. The school phoned the parents but was unable to get anyone to come in and pick up E.W. Therefore, the suspension was enforced on the next school day, October 7, 2019. The school warned the parents that another biting incident would result in the child’s permanent removal from Chappell. On October 23, 2019, E.W. bit another child at the school. Chappell expelled E.W. Nancy Dreicer, the Chief Executive Officer of Chappell, testified that there is a societal problem with small children being suspended and expelled from childcare centers. She stated that more children are expelled from child care centers in the United States than are expelled from grade schools and high schools. Ms. Dreicer testified that disciplinary expulsions were problematic for multiple reasons. Behaviors such as biting are common among two year olds, but a child that age learns nothing from being suspended or expelled from school. The parents are forced to find another child care facility and whatever behavioral issue is causing the child’s misbehavior is not addressed. The problem is merely pushed off onto a new child care facility. Ms. Dreicer testified that in 2019, Chappell received a grant from Hope Haven Children’s Hospital and the Community Foundation of Jacksonville to have a behavioral psychologist at the Deerwood facility to work with the children and to train the teachers in dealing with behavior problems. The psychologist worked with E.W., observing the child in the classroom, tracking the timing of his misbehavior, and looking for triggers to his actions. He worked with the teachers on how to identify triggers. Ms. Dreicer pointed out that suspending the child would have meant that the psychologist could not observe him. She noted that nothing approaching a serious injury had occurred, and added that the school would not have kept E.W. in the classroom if there was any possibility of his being a danger to the other students. She believed that E.W.’s behavior was improving, but that biting is such a natural part of a two year old’s development that it was very difficult to stop it completely. The Department has adopted a Child Care Facility Handbook (the “Handbook”), intended to be used on conjunction with sections 402.26 through 402.319. The Handbook has been adopted by reference in Florida Administrative Code Rule 65C-22.001(6).1 The Introduction to the Handbook states, “To protect the health and welfare of children, it is the intent of the Legislature to develop a regulatory framework that promotes the growth and stability of the child care industry and facilitates the safe physical, intellectual, motor, and social development of the child.” Section 2.8 of the Handbook, titled “Child Discipline,” provides, in relevant part: The child care facility shall adopt a discipline policy consistent with Section 402.305(12), F.S., including standards that prohibit children from 1 The cited rule references the May 2019 edition of the Handbook. However, the version of the Handbook provided on the Department’s website and through the hyperlink provided in the rule as published in the Florida Administrative Register is dated December 2019. To further complicate matters, the version of the Handbook introduced at the hearing was dated October 2017. The October 2017 and December 2019 editions are identical in all respects relevant to the determination in this proceeding, which leads to the inference that the May 2019 edition is likewise identical. being subjected to discipline which is severe, humiliating, frightening, or associated with food, rest, or toileting. Spanking or any other form of physical punishment is prohibited. The child care facility operators, employees, and volunteers must comply with written disciplinary and expulsion policies. Verification that the child care facility has provided the parent or guardian a written copy of the disciplinary and expulsion policies used by the program must be documented on the enrollment form with the signature of the custodial parent or legal guardian. * * * E. A copy of the current[2] disciplinary and expulsion policies must be available for review by the parents or legal guardian and the licensing authority. Providers must have a comprehensive discipline policy that includes developmentally appropriate social-emotional and behavioral health promotion practices, as well as discipline and intervention procedures that provide specific guidance on what child care personnel should do to prevent and respond to challenging behaviors. Preventive and discipline practices should be used as learning opportunities to guide children’s appropriate behavioral development …. (emphasis added). Pursuant to section 2.8.A of the Handbook, Chappell has adopted and implemented a discipline policy, titled “Child Management Behavior Protocol.” Chappell’s policy sets forth the following mission statement: Chappell recognizes the importance of promoting acceptable behavior and methods of discipline within the child care setting. We believe that all 2 The word “current” is not in the October 2017 edition of the Handbook. This is the only relevant difference between section 2.8 in the October 2017 Handbook and section 2.8 in the December 2019 edition of the Handbook children have the right to expect positive approaches to discipline, which foster self-esteem, respect, tolerance and self-control. Behaviors which injure people either emotionally or physically or damage property are real problems to adults/staff and the other children. These behaviors must be dealt with in an appropriate manner. After setting forth a catalogue of acceptable and unacceptable methods of discipline to be applied in specific instances of misbehavior, the Chappell discipline policy next stated the process to be followed “In The Case of Persistent Inappropriate Behavior” as follows, in relevant part: The child’s parents/caregivers will be involved at first hit, kick, thrown toy, etc. The Director will discuss the situation with the parents/caregivers in an attempt to find the possible cause of the behavior. The Director and the parents/caregivers will together develop strategies for dealing with the unwanted behavior, which could be implemented at home. Should it be necessary and with the consent of the parent/caregiver, advice and assistance will be sought from relevant external specialists to address the matter. After two incidences in one week, which caused or could have caused injury to self or others, the child will be suspended for one day, and after five such incidences the child will be suspended for a week. However, if the Director at any time feels the behavior is extreme and dangerous to other children or teachers, the child will be removed from the Center. This may be a temporary or permanent expulsion…. There was no question that the Chappell discipline policy meets the requirements of the Handbook. The Class II violation alleged by the Department is that Chappell failed to follow its own discipline policy in the case of E.W., thereby violating section 2.8.B of the Handbook, which requires child care facilities to “comply with written disciplinary and expulsion policies.” The Department points out that the Chappell discipline policy specifies that after two incidences in one week that “caused or could have caused injury,” the child will be suspended for one day, and that five such instances will result in one week’s suspension. The Chappell policy gives the Director discretion to remove a child for extreme or dangerous behavior. The Department notes that the policy does not give the Director discretion to waive the stated discipline schedule. Ms. Marshall calculated that under Chappell’s written policy, E.W. should have been suspended for one day after the two biting incidents on August 27, 2019, and again following the two biting incidents on September 30, 2019. Chappell did not suspend E.W. on either occasion. Ms. Marshall calculated that in the space of the five days between September 30 and October 4, 2019, E.W. was involved in five biting incidents. Ms. Marshall testified that, under Chappell’s policy, E.W. should have been suspended for one week. Chappell gave E.W. a one-day suspension on October 7, 2019. Ms. Dreicer conceded in the abstract that biting is an act that could cause injury to another child. She did not concede that E.W.’s biting was injurious or threatened actual injury to the other children at the child care facility. It was a developmental behavior issue that the facility’s staff and a psychologist were attempting to correct. Chappell ultimately decided that it had to expel the child, but only after making every effort to correct the biting behavior. Chappell argued that neither the Department’s Handbook nor Chappell’s policy defines the term “injury.” Ms. Marshall believed that a bite is always an injury. It leaves a mark, however temporary, and requires some treatment. Chappell noted that none of the bites recorded in its accident/incident reports broke the skin of the other child or required treatment of any kind. Ms. Dreicer and the staff of the Deerwood facility made a determination that E.W.’s behavior presented no danger of injury to the other children. Chappell argues that, whatever the literal language of the written policy, the director of a child care facility must be allowed to exercise discretion on a case-by-case basis in making disciplinary decisions. Chappell points to section 2.8.E of the Handbook, with its admonitions that a comprehensive disciplinary policy must be “developmentally appropriate” and that discipline practices “should be used as learning opportunities to guide children’s appropriate behavioral development.” Ms. Dreicer forcefully made the case that suspending or expelling a two year old teaches nothing and abdicates the facility’s responsibility to the child. Neither party appeared to take note of another section of the Chappell disciplinary policy. The undersigned observes that, while the language of the Chappell policy quoted above appears to prescribe a rigid disciplinary process admitting no exceptions, another portion of the policy gives Chappell discretion as to when the disciplinary process commences: After an incident, our first step: We will tend to the injured child to see if medical attention is needed. We will give the child who hit, kicked, etc. an opportunity to apologize and provide comfort. We will notify both sets of parents and prepare an incident report (Attachment 1). DCF requires the report be signed by a parent or caregiver the day of the incident. If behaviors persist, Chappell will follow the process management flow chart. (Attachment 2)[3] (emphasis added). 3 The referenced attachments were not part of the record. From the context, the undersigned has inferred that the referenced “flow chart” was a graphic representation of the disciplinary procedure quoted at Finding of Fact 26 above. The underscored language, read together with the title of the discipline policy, “In The Case of Persistent Inappropriate Behavior,” gives Chappell discretion to determine when the child’s behaviors have reached the stage of “persistence” warranting commencement of the disciplinary process. The Department did not account for this discretion in finding that Chappell violated section 2.8.B of the Handbook. Ms. Dreicer’s testimony was consistent with the Chappell disciplinary policy. Though the facility eventually expelled the child, it exercised the discretion afforded by the policy to determine whether the child’s behavior was potentially injurious and whether the behavior was persistent enough to warrant invocation of the disciplinary process. Clear and convincing evidence was not presented that Chappell committed the Class II violation alleged by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of May, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2020. COPIES FURNISHED: Nancy Drier Chappell Schools, LLC 8400 Baycenter Road Jacksonville, Florida 32256 Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway Jacksonville, Florida 32231-0083 (eServed) Jesse Nolan Dreicer, Esquire Tassone, Dreiver & Hill 1833 Atlantic Boulevard Jacksonville, Florida 32207 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
