The Issue Whether the Petitioner is eligible for services offered by Respondent to the developmentally disabled under Chapter 393, Florida Statutes (1995).
Findings Of Fact James Champion is a nineteen year old male, born January 22, 1978, who is a permanent resident of the State of Florida. Petitioner currently lives with his natural mother, Susan Champion, who provides him food, shelter and assistance. Petitioner had a normal developmental history until the onset of seizures at the age of four, coinciding with a DPT inoculation. Since then he has had several types of seizures, and has been treated with multiple anti-epileptic medications without success. Currently, Petitioner experiences seizures on an almost daily basis. Petitioner has been oppositional, defiant, and at times volatile in his moods, and can be verbally aggressive. Due to his epilepsy and behavioral difficulties, while in school, Petitioner was placed in a special needs program with small class size and a one-on-one aide. Petitioner graduated from MacArthur North High School in Hollywood, Florida in 1996, with a special diploma. As a child, Petitioner had been given IQ tests. When he was twelve years old, a psychological assessment was performed, yielding a verbal IQ of 100, performance IQ of 88, and full scale IQ of 93. At the age of fourteen, he was tested again, using the Wechsler Intelligence Scale for Children-Third Edition (WISC- III). Intelligence testing yielded a verbal IQ of 71, performance IQ of 74, and a full scale IQ of 70. This testing revealed functioning in the Borderline range (second percentile rank) with a six point margin of error. This level of intellectual functioning reflected a 23 IQ point loss from previous testing. A few months past his eighteenth birthday, Petitioner was tested using the Wechsler Adult Intelligence Scale, Revised (WAIS-R) and other tests. On the WAIS-R, Petitioner yielded a Verbal IQ of 74, performance IQ of 70, and a full scale IQ of 71. Petitioner was diagnosed as having [Axis I] Dysthymic Disorder (300.4); [Axis II] Borderline Intellectual Functioning (V62.89) and Personality Disorder Due to Medical Condition (310.1); and [Axis III] Epilepsy. This test confirmed that Petitioner was functioning in the Borderline range of intellectual functioning. This drop in test results is accounted for as a result of brain damage caused by Petitioner’s continuing episodes of epilepsy. Applying the margin of error to the lower spectrum, the 70 and 71 test results become 67 and 68, respectively. Taking the totality of the circumstances, it is persuasive that Petitioner has shown that he has tested at an IQ level of approximately 70 or below The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is significantly subaverage intellectual functioning (an IQ approximately 70 or below on an individually administered IQ test); concurrent deficits or impairments in present adaptive functioning in at least two of the following areas: communication, self- care, home living, social/interpersonal skills, use of community resources, self- direction, functional academic skills, work, leisure, health, and safety; and the onset is before 18 years. 12 In determining an individual’s eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements. Respondent’s evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner’s adaptive functioning. Petitioner’s IQ results in his teens should be evaluated from the lower tested result, i.e., at 70, and the margin of error should be placed at the lower, not the higher, spectrum (-3). The lower tested result becomes 67, placing Petitioner in the mild mental retardation category. There was some evidence that Petitioner has deficits in adaptive functioning in communication, home living, social/interpersonal skills, self-direction, work, and safety. However, Respondent’s evaluator did not evaluate Petitioner in this area and the testimony of Petitioner’s mother is insufficient to meet the burden of proof necessary in this forum. The onset of Petitioner’s condition occurred prior to his eighteen birthday.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent issue an order determining that prior to his eighteenth birthday, Petitioner has suffered from “significantly subaverage general intellectual functioning.” However, the evidence is insufficient to presently establish if it exists concurrently with deficits in adaptive behavior. It is further RECOMMENDED that this matter be remanded to Petitioner’s evaluator to determine if Petitioner has deficits in adaptive behavior in two or more areas and would therefore, be eligible for developmental services offered by Respondent. DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1997. COPIES FURNISHED: Susan C. Champion, Parent 104 Lake Gem Drive Longwood, Florida 32750 Eric Dunlap, Esquire District 7 Legal Office Department of Children and Families 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Children and Families 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner is eligible for services from the developmental disabilities program (DDP) due to mental retardation as defined in Section 393.063(42), Florida Statutes.
Findings Of Fact Petitioner was born on March 20, 1951. Dr. C. Joel, a neuropsychiatrist, evaluated Petitioner on September 8, 1969. Petitioner was 18 years and 5 months old at that time. According to Dr. Joel's report, the Kent Simplified IQ Test indicated that Petitioner's mental age was between 8 and 9 years, with an IQ between 55 and 65. In May 1974, the Georgia Department of Human Resources, Division of Vocational Rehabilitation, determined that Petitioner could not function in a manner conducive to continued substantial, gainful employment. In August 1974, a federal Administrative Law Judge determined that Petitioner was entitled to receive disability benefits from the U.S. Department of Health, Education, and Welfare, Social Security Administration. In the written hearing decision, the Administrative Law Judge referred to a Weschler Adult Intelligence Scale (WAIS) administered to Petitioner on October 23, 1967, when she was 16 years old. According to the written decision, Petitioner's full-scale IQ was 74 at age 16. On or about February 5, 1979, a clinical psychologist administered the WAIS to Petitioner. On that test, Petitioner had an overall score of 83. In March 1991, Respondent denied Petitioner's previous application for services. Respondent determined at that time that Petitioner was not eligible for services because she was not disabled. Petitioner was evaluated most recently on January 24, 2002, by Robert E. Napier, Ph.D. According to his report, Petitioner had a full-scale IQ score of 72 on the WAIS III. In making eligibility determinations under the mental retardation category, Respondent adheres to its non-rule policy as set forth in its July 1996 Support Coordination Guidebook, which states as follows in pertinent part: CRITERIA FOR MENTAL RETARDATION All the following criteria are to be met to be eligible under the category of mental retardation: Performance is two or more standard deviations below the mean on an individually administered intelligence assessment instrument. The instrument should be selected from the following list: Stanford-Binet Applicable Weschler Intelligence Scales, depending on the applicant's age Columbia Mental Maturity Scale Leiter International Performance Scale Hiskey-Nebraska Test of Learning Aptitude Bayley Scales of Infant Development Cattell Infant Intelligence Scale If an instrument other than the Stanford- Binet or Wechsler series is used as an intellectual assessment, the psychologist's report should state the reason these instruments were inappropriate for the particular applicant. The applicant has significant deficits in adaptive behavior. . . . Manifested prior to the person's eighteenth (18) birthday . . . . Respondent also makes eligibility decisions based on its non-rule policy regarding the diagnostic features of mental retardation as set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, which states as follows in relevant part: Diagnostic Features The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self- care, home living, social/interpersonal skills, use of community resources, self- direction, functional academic skills, work leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). . . . * * * . . . Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean). . . . With the exception of one evaluation in 1969 (after she was 18 years old), Petitioner consistently achieved an overall IQ score of at least 72 or higher. During the hearing, Petitioner presented no expert witness testimony to support her arguments that she is entitled to services from DDP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order affirming its decision that Petitioner is not eligible for services from the developmental disabilities program. DONE AND ENTERED this 7th day of February, 2003, in Tallahassee, Leon County, Florida. 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 7th day of February, 2003. COPIES FURNISHED: Mary Collins c/o Ruth Server 3811 Sand Dune Court Destin, Florida 32541 Katie George, Esquire Department of Children and Family Services 160 Governmental Center, Bin 410 Pensacola, Florida 32501-5734 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 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner's request for eligibility for developmental services should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this dispute over the provision of developmental services, Petitioner, Mark J. Haley, who is 36 years of age, seeks to establish eligibility for such services. Respondent, Department of Children and Family Services (DCFS), which administers that program, has denied the request on the ground that Petitioner's medical condition does not qualify him for services. Under guidelines established in Section 393.063, Florida Statutes (2000), in order to qualify for DCFS services, an applicant must demonstrate that he or she has a developmental disability. That term is defined in part in Subsection (12) as "a disorder or syndrome that is attributable to . . . Prader-Willi [S]yndrome and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely." Subsection (34) of the same statute goes on to define Prader-Willi Syndrone (PWS) as "an inherited condition typlified by neonatal hypotonia with failure to thrive, hyperphagia or an excessive drive to eat which leads to obesity usually at 18 to 36 months of age, mild to moderate retardation, hypogonadism, short stature, mild facial dysmorphism, and a characteristic neurobehavior." (Emphasis added) When he was 18 years old, Petitioner stood six feet, three inches tall and weighed 190 pounds. He was an honor student and merit scholar. Tragically, however, he was diagnosed with a tumor affecting his hypothalumus (an area of the brain), which required surgery and radiation. Over time, and due to damage to his hypothalumus, Petitioner has acquired the symptoms of PWS, which include obesity, uncontrolled appetite, a lack of testosterone, and short temper with poor short-term memory. In April 1999, Petitioner was examined by a University of Florida physician who specializes in genetics. He confirmed that Petitioner's "[a]quired [PMS] is not the result of a genetic defect, but [is] due to damage to the hypothalamus . . . because of his brain tumor." Contrary to an assertion by Petitioner, there is no persuasive medical evidence of record that the tumor was present from a very early age and therefore his condition can be characterized as inherited. Rather, a Texas neurosurgeon simply opined that the tumor was "slow growing," and "was most likely present for more than a year before he was first seen and operated on in 1983," when Petitioner was 18 years old. While living in Texas, Petitioner's weight ballooned to 525 pounds. Because of parental concern, in January 1999 Petitioner relocated to Volusia County, Florida, where his parents reside in a retirement community. The parents' intention was to place their son under strict supervision and dietary control in the hopes of reducing his weight. Their efforts have been somewhat successful as Petitioner has lost approximately 100 pounds in the last year and now weighs around 425 pounds. Petitioner's condition is permanent. He suffers from uncontrolled appetite and other deficits which necessitate full-time supervision. He is unable to care for himself. Suffice it to say that Petitioner's elderly parents have encountered difficulty in providing the necessary supervision that he requires. In March 2000, Petitioner filed a request with the DCFS seeking developmental services for his condition. The request was eventually denied on the ground that state law requires that a person have inherited, and not acquired, PWS in order to qualify for services. If services are approved, clients are typically placed in a facility that specializes in the full-time treatment and care of persons with PWS. One such facility is ARC of Alachua County, Inc. (ARC), which has 42 PWS patients under its care at this time. Petitioner points out that 4 clients at the facility have acquired PWS, and therefore there is precedent for his receiving services. However, those 4 also have a primary diagnosis of mental retardation, which qualifies them for developmental services, irrespective of the PWS condition. Petitioner does not have mild to moderate retardation. Petitioner's elderly parents are legitimately concerned that once they are gone, there will be no one to care for their son, who requires constant supervision, and that his modest social security disability check is insufficient to pay for services at ARC, which cost around $50,000.00 per year. Besides that, the full-time job of supervising their son is a taxing one, and they are not sure how long they can continue to do this. An ARC representative confirmed that the job of caring for a person with PWS is extremely difficult, and he praised the parents for their perserverance. Notwithstanding these genuine concerns, however, there is no relief available in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's request for a determination that he is eligible for developmental services. DONE AND ENTERED this 6th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 6th day of March, 2001. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard E. Haley 193 La Colina Drive Edgewater, Florida 32141 Cathy B. McAllister, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 210 Daytona Beach, Florida 32114-3269 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Petitioner, Robin Carter Millan, is eligible for the Developmental Services Program of the Department of Children and Family Services (DCFS).
Findings Of Fact The Petitioner, Robin Carter Millan, requested developmental services from the Department of Children and Family Services (DCFS) in September 1997, when she was 26 years old. The Petitioner's mother, Ann Millan, met with an intake counselor and completed a Referral/Intake Information Questionnaire. Consistent with a long-standing preference not to label her child as autistic, Mrs. Millan listed her daughter's primary disability as mental retardation. After the Petitioner submitted additional information, DCFS psychologist specialist-coordinator Jane Schiereck sent the Petitioner a letter dated March 6, 1998, notifying the Petitioner that DCFS had determined her ineligible for developmental services because the information submitted included IQ test scores exceeding the maximum for mental retardation. At the hearing, the Petitioner's mother presented evidence that the Petitioner actually has autism--a pervasive, neurologically-based developmental disability which causes severe learning, communication, and behavior disorders with age of onset during childhood. Schiereck testified that the evidence proved the Petitioner is eligible for developmental services under the category of autism. According to Schiereck, the Petitioner did not apply for services under the category of autism and that the Petitioner had to reapply under autism. The Petitioner agreed to do so. However, Schiereck also testified that the intake procedures and eligibility determination preceded the filing of an application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCFS enter a final order determining the Petitioner eligible for developmental services. DONE AND ENTERED this 14th day of May, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 14th day of May, 1999. COPIES FURNISHED: Amy V. Archibald, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Robin Carter Millan c/o Robert and Ann Millan 3963 Eagle Cove West Drive Palm Harbor, Florida 34685 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether petitioner should take disciplinary action against respondent for the reasons (other than the alleged existence of a substantiated indicated abuse report) alleged in the amended administrative complaint?
Findings Of Fact Anderson's Child Care Center at 507 Texas Avenue in Crestview was one of the day care centers Mr. Brown of the Okaloosa County Health Department routinely inspected. Respondent testified without contradiction that she has operated a child care center at her Texas Avenue home since September of 1973, with the exception of the time petitioner closed her down. See Anderson v. Department of Health and Rehabilitative Services, 482 So. 2d 491 as clarified on reh. 485 So. 2d 849 (Fla. 1st DCA 1986). From this evidence it is inferred that she holds a license for a child care center. No evidence suggested otherwise. In the summer and fall of 1985, Lucy's husband Charles lived with her and worked at the child care center. J. S. On July 18, 1985, J.S., who was born January 5, 1982, spent his first day at the Anderson Child Care Center. J.S. was "right about the age [for] learning but c[ould]n't void on command." (T.48). He lacked "the voluntary control" (T.48) to "void on command," but he had learned to restrain himself before attending the Anderson Child Care Center. Although he was toilet trained before he began attending Anderson Child Care Center, he "started having lots of accidents and messing in his pants" (T. 73) after July 18, 1985. When left at the center, J.S. "got where he would throw a fit. He would not want to stay. And when . . . [Mrs. S.] would go pick him up, he would still be crying." (T. 77 ) September 11, 1985, was his thirteenth and final day at the Anderson Child Care Center. On September 12, 1985, A.S.'s mother took her to Eglin Regional Hospital in order to be examined, on account of the redness of her 23-month-old vaginal area. (T.74) J.S. accompanied his mother and sister. Leslie Price Kurtz, an Air Force Officer and pediatrician who saw A.S., diagnosed a rash on her nates as impetigo. In the course of inquiring about A.S., Dr. Kurtz was told by Mrs. S (who relayed information she had received from M.S., 8-year-old brother of J.S. and A.S.) that J.S. did not like to go to the bathroom at Anderson's Child Care Center, which all three S. children attended, because of immodest conditions there. The story Dr. Kurtz got was that the children were directed to use the bathroom at specific times and had no privacy when they did. (T.50) Based on this information, and on Mrs. S's report that J.S. had once been potty trained but had recently regressed, Dr. Kurtz suggested to Mrs. S. that she remove her children from Anderson's Child Care Center. Dr. Kurtz contacted the Department of Health and Rehabilitative Services which, as far as she knew, took no action at that time. In Dr. Kurtz's opinion, "a disturbance . . . had occurred with [J.S.] . . . secondary to the child's behavior as described . . . by the mother." (T.50) J. N. On September 25, 1985, Dr. Kurtz saw J.N. who was brought to her with complaints of an ear infection. There was no mention of any problem with his hands but Dr. Kurtz noticed that J.N., who was 20 months old at the time, had red and macerated fingers. J.N., who was born January 4, 1984, began at the Anderson Child Care Center on July 15, 1985, and attended regularly through September 27, 1985, although he missed a total of nine days, for sickness and other reasons. His parents drove him to the Center on their way to work, dropping him off about seven in the morning, and returned to pick him up about quarter past four in the afternoon. The first day he was there, three or four fingers were swollen a little when his parents picked him up. But in general things seemed to go well, at first. There were no more swollen fingers for two to four weeks and his parents saw him try to sing along with songs and do exercises at home they assumed he had learned at Anderson Child Care Center. There came a point when J.N. began to cry and cling to his mother when he was dropped off at respondent's. From then on, he cried nine times out of ten when he was left at the Anderson Child Care Center and he also frequently chewed on his fingers. One day when his father came for him, J.N. was sitting on the ground looking as if he had been crying. He refused to get up even though his father called him twice. Only after Charles Anderson told J.N. to go to his father did the child go to him. His parents never noticed J.N. chew his fingers before he began at the Anderson Child Care Center and this behavior has all but disappeared since he began attending another child care center. Only during the time he attended Anderson's did his fingers become red, swollen and infected. "[I]t was almost like he had bit right through his fingernails he had been chewing on them so much." Deposition of J.N., p.ll. They have healed completely since he left Anderson's Child Care Center. J.N. was not toilet trained when he started at Anderson's Child Care Center. He was still in diapers. After he had been at the Center two weeks, Mrs. Anderson told his mother that he seemed to have "a bowel movement after naptime when he would be outside playing,"(T.115) and suggested that he "be put on the potty at that time of the day." (T.115) Mrs. N. did not object to this proposal. Thereafter J.N. was placed on the toilet "after naptime" and regularly defecated, without crying or complaining. Child care center personnel did not punish him for accidents. Only after J.N. began at Anderson's Child Care Center, however, did his parents notice J.N. at home "go behind the furniture to go potty. It seemed like he was afraid . . ." (Deposition of J.N., P. 11) J.N. also seems to fear toilets. Id., P. 2. After J.N.'s parents related his circumstances to Dr. Kurtz, Dr. Kurtz concluded that the changes in his behavior were "most likely . . . [attributable to] conditions at Anderson Day Care Center," (T. 52) and contacted HRS. She also advised J.N.'s parents to remove him from Anderson Child Care Center immediately. J.N.'s parents sent him to Anderson Child Care Center the next day nevertheless. [T]hen we talked some more; we decided we would take him out because in -- when you're in the air force, you have your family. But in matter of speaking, the air force can run that family for you -- because if we wouldn't have taken him out of there and the doctor would have found out about it, she could have forced us to take him out of there. Deposition of J.N., P. 19. Respondent learned of dissatisfaction with the care J.N. received at the Center only after the present proceedings began. Toileting Generally In response to petitioner's interrogatories, Mrs. Anderson described toileting procedures at the Anderson Child Care Center. Petitioner offered her description in evidence: Under two years of age, after the parents agree the time for pottie training is to start, The children are exposed to the pottie usually during diaper change time. After pottie training depending on liquid ingestion, weather, child, time of day, and other variables, the children are given an opportunity periodically to use the pottie. If the children are inside they are given the opportunity every hour. If the children are outside they are given an opportunity every 1-1/2 to 2 hours. If the children need to go in the interim they are allowed to do so. If the children are going on a field trip or leave the center they are encouraged to use the bathroom before leaving. The children are also encouraged to use the bathroom right after lunch. The same procedure is employed for the children 2 through 5 and older as is the case with the children under 2 years of age after those children under 2 are pottie trained as above outlined. Usually the children are selected randomly while listening to a story for the purpose of an opportunity to use the bathroom. Petitioner's Exhibit No. 2. Mrs. Anderson's testimony at hearing was consistent with this account, as regards events after July 1, 1985. Staffing On October 9, 1985, Lucy Anderson was at Anderson's Child Care Center all day. At eight that morning Debbie Underwood and Pat Todd arrived and began work. At noon Charles Anderson came home. Thirty minutes later Debbie Underwood left the premises for lunch and at one o'clock Pat Todd left for the day. At 1:30 p.m., Debbie Underwood returned from lunch and Ann Parker reported for work. At half past two, Mr. Anderson left, but Kelley Anderson came home ten minutes later. Both Mrs. Parker and Mrs. Todd left for the day at five, but Kelley helped her mother till six. Between two and three o'clock on the afternoon of October 9, 1985, Arthur Alvin Brown, an inspector with the Okaloosa County Health Department, called at Anderson's Child, Care Center. Mrs. Anderson and three other women supervised the children while Mr. Brown was there. He stayed "probably somewhere in the neighborhood of fifteen, twenty, thirty minutes." (T.89) He counted four children inside sleeping on mats, and approximately 65 outside playing. Because he "knew the licensed capacity was fifty-five [he counted] a number of times." (T.89) Children were coming and going while he was there and he tried to take that into account. No more than five children left during his stay, however. Of the children who respondent's own records reflect were at the Center from two or earlier till three or later on the afternoon of October 9, 1985, four were ten years old, three were nine years old, eight were eight years old, two were seven years old, five were six years old, five were five years old, six were four years old, three were three years old, four were two years old and Matthew Newell was the only one-year-old. Petitioner's Exhibit No. 2. According to respondent's records, 29 other children were at the Center for some part of the time between two and three o'clock that afternoon. The age of one of the children in this group is not clear from the record. Of the others, two were two years old, only Candace Cox was three years old, two were five years old, four were six years old, eight were seven years old, three were eight years old, four were nine years old, three were ten years old and Kevin Barrow was the only eleven- year old. Petitioner's Exhibit No. 2.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background By application dated March 29, 1989, petitioner, Stuart B. Novick, sought licensure by examination as a psychologist. The application was filed with respondent, Board of Psychological Examiners (Board), which has statutory authority to license and regulate the psychologist profession. In action taken act its August 1989 meeting, the Board voted to deny the application on the ground petitioner did not satisfy the educational and work experience requirements imposed by statute and rule. In addition, the Board concluded that Novick had not submitted proof of completion of an educational course concerning HIV and AIDS, as required by agency rule. This decision was conveyed to Novick in an order issued by the Board on September 15, 1989. This proceeding involves petitioner's challenge of that preliminary decision. The specific objections to licensure will be dealt with separately in the findings below. Educational Requirements The Board's preliminary decision made the following findings pertinent to petitioner's education: Your doctoral program was not completed at an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Education or an institution which is publicly recognized as a member in good standing with the Association of Universities and Colleges of Canada. In addition, your doctoral program was not approved by the American Psychological Association as required by Chapter 490.005(1)(b), Florida Statutes and Chapter 21U-11.006(1)(b)1., 9., and 10., Florida Administrative Code. Petitioner received a bachelor of arts in political science from the University of California - Los Angeles in December 1970. He then obtained a masters degree in educational psychology and guidance from California State University Northridge in January 1974. In the summer of 1977 he enrolled at California Graduate Institute (CGI), an institution of higher learning in Los Angeles. After attending CGI fulltime for approximately five years, Novick was awarded a doctorate in psychology in October 1982. At issue in this case is whether CGI and its psychology program meet the requirements of the law for licensure. According to applicable statutory requirements, petitioner was required to submit satisfactory proof that he had received a doctoral degree with a major in psychology from a program which at the time petitioner was enrolled and graduated was accredited by the American Psychological Association (APA). As to this requirement, Novick conceded that when he attended CGI from 1977 until 1982, that institution was not fully accredited by the APA. Therefore, petitioner did not meet that requirement. In lieu of satisfying the requirement described in the preceding paragraph, petitioner was authorized by law to submit satisfactory proof that he received a doctoral degree in psychology from a program which at the time petitioner was enrolled and graduated maintained a standard of training comparable to the standards of training of those programs accredited by the APA. In this regard, the more persuasive evidence, including the program analysis form submitted by petitioner with his application, shows that petitioner's doctoral program did not require each student to demonstrate knowledge and use of scientific and professional ethics and standards, research design and methodology, statistics, psychological measurements, and history and systems of psychology. The foregoing educational requirements are embodied in Rule 21U-11.006(1)(b)10., Florida Administrative Code, and must be satisfied in order to show comparability. In view of these deficiencies, it is found that petitioner failed to satisfy this part of the requirements for licensure. In addition to the foregoing comparability requirement, petitioner was obligated to show that his education and training in psychology wash received in an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Accreditation. As to this requirement, petitioner conceded that CGI's psychology program was not accredited by a recognized regional accrediting body. That admission is corroborated by a letter dated May 15, 1989 from the chairperson of CGI's department of psychology to the Board. Therefore, this criterion was not met. Work Experience In its proposed agency action, the Board cited the following concerns with petitioner's work experience: You have not completed the two years or 4000 hours of supervised experience in the field of psychology as required by Chapter 490.005(1)(c), Florida Statutes, and Chapter 21U-11.006(1) (c), Florida Administrative Code and in compliance with Chapter 21U-17, Florida Administrative Code. The experience under Dr. Milana was experience as a marriage and family therapist, rather than as a psychological resident in compliance with Chapter 21U-17, Florida Administrative Code. As explained further at hearing by the Board's executive director, although petitioner's "supervising psychologist verification form" facially complied with the required work experience in the field of psychology, the Board was concerned with the fact that Novick has been licensed as a marriage and family therapist (MFT) since September 1986, was employed as a MFT when much of the work experience was obtained, and may have rendered services in that capacity rather than as a psychological resident. After graduation from CGI, petitioner was employed as an outpatient therapist by Northside Centers (the center), a mental health clinic in the Tampa area. During the course of that employment, petitioner obtained approval from Dr. Suzette Milana, a licensed psychologist, to train under her supervision as a psychological resident at the center. According to petitioner, as confirmed by Dr. Milana's testimony as well as documents in his application file, he worked, at least part of the time, under Dr. Milana's supervision from July 1984 until the application was filed. The supervising psychologist verification form completed by Dr. Milana reflects that Novick was supervised for 228 weeks, rendered approximately 2200 hours of psychological services to clients, and was employed by the center for a total of 4880 hours. According to Dr. Milana, petitioner is now competent to perform without supervision adult, adolescent and child treatment. Doctor Milana verified that, during his supervised period of employment, petitioner participated in the following activities: evaluation and assessment, intake activity, formulation of treatment plans, treatment intervention, case management and crisis intervention, all being activities normally engaged in by psycholgical residents. However, Novick did no psychological testing since the clinic already had an employee assigned to that job. Even so, there was no evidence to establish that psychological testing is a current required part of a resident's work experience. Doctor Milana described petitioner's supervision to be the same that she received when she was fulfilling her work experience requirement for licensure. By agency rule effective October 3, 1985, the Board imposed the requirement that, during one's training period, an applicant shall be known by the title "psychological resident". In addition, a requirement was added that all business cards, signs, stationery and the like naming the applicant must also bear the name and affiliation of the supervisor/associate. Finally, each resident is obliged to advise each client at the time services are initiated of his status as a resident, the requirements of a supervised status and of the name of his supervisor. The requirement concerning the disclosure of the supervisor's identity is necessary since the supervisor must ultimately take full responsibility for the resident's patients and their treatment. During the period after October 1985 and until the application was filed, petitioner continued to use business cards issued by the center which reflected his title as being a "marriage and family therapist" and did not disclose the name of his supervisor. According to petitioner, he never indicated on any reports or insurance forms that he was a psychological resident. Further, Dr. Milana did not co-sign any reports. Although petitioner told all of his patients that he was an outpatient therapist or a MFT, he told only "some" that he was working under the supervision of Dr. Milana. Except as to these departures from the rule, petitioner's training was in conformity with the Board rule. Course in HIV and AIDS The Board's order noted that Novick had not furnished "proof of completion of an educational course concerning HIV and AIDS in compliance with Chapter 21U-21, Florida Administrative Code". According to Rule 21U- 21.001, Florida Administrative Code (1989), each person applying for licensure subsequent to July 1, 1989 shall be required to complete an educational course approved by the Board and consisting of education on the transmission, control treatment and prevention of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome with emphasis on appropriate behavior and attitude change. Novick did not submit proof of completion of such a course with his initial application. However, at hearing he stated he had completed a Board approved course at a local hospital in April 1989 and shortly thereafter forwarded a copy of his diploma to the Board. Although no documentary proof was submitted at hearing to support this claim, it was not contradicted by the Board, and it is accordingly found that Novick has satisfied this part of the licensure requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner for licensure as a psychologist by examination be DENIED. DONE and ORDERED this 16 day of March, 1990, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1236 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of March, 1990.
The Issue Whether the Department of Children and Families (DCF or Petitioner) should impose sanctions against Respondent, Chutes N’ Ladders 2, LLC (Respondent), for alleged violations in the operation of a child care center.
Findings Of Fact Respondent is licensed by DCF to operate a child care facility at 1961 Royalview Drive, Port Charlotte, Florida. Respondent’s license certificate is C20CH0032. The facility’s current license is effective through July 31, 2015. Petitioner is charged by law to regulate and inspect all child care facilities in the state of Florida to assure compliance with all licensing standards. Licensing standards are defined by statute and rule, and are denoted on the “Inspection Checklist” used by DCF. Prior to November 13, 2013, Jeanette Witmer, a DCF licensing counselor, was assigned to inspect child care facilities licensed in Port Charlotte, Florida. Among those facilities was Respondent’s Chutes N’ Ladders 2, LLC. On November 13, 2013, Ms. Witmer went to Chutes N’ Ladders 2, LLC, to perform a routine inspection. Using the Inspection Checklist, Ms. Witmer went through the facility noting pertinent facts. Ms. Witmer considered the rooms designated as “infant rooms” to be two separate rooms. The capacity for each separate room was clearly and accurately posted. The combined total occupancy for the two rooms was not exceeded. The issue was not the square footage of the rooms or the layout of the rooms. An issue arose because, based upon the documentation then in use, the space was designated as two rooms. As such, each room required the appropriate staffing and supervision for the space. As a practical consideration, Respondent did not treat the space as two rooms. Instead, Respondent considered a fixed table permanently built into a low wall as insufficient to constitute a divider between the two spaces. Respondent, therefore, treated the space as one room. Ms. Witmer noted that supervision could not be provided to all areas of the space by persons standing in one area of the rooms. In fact, such observation formed the basis for a warning given to Respondent on that date. Since there were four children on one side of the space (room 1) and four children on the other side of the space (room 2), Ms. Witmer concluded the caregivers should have been separated, one to each side. Instead, two caregivers were located on one side of the space and could not observe the activity of an infant on the floor in the adjacent room. As a result, Respondent issued a warning for a standards violation: not having staff appropriately stationed to meet the ratio requirement (1:4). Additionally, when the staff member supervising the two- to three-year-old group could not verbally confirm how many children were under her supervision, another warning was issued. Part of the supervision standard requires staff to be cognizant of the children in their care. After the routine inspection was completed, a copy of the Inspection Checklist documenting the issues noted above was provided to Respondent’s facility director. In follow-up to the inspection, Michael and Phyllis Larkin met with Ms. Witmer and Sherrie Quevedo, the DCF licensing supervisor, in December 2013. Among the concerns was the designation of the two rooms as two rooms instead of one large space, and the claim that supervision was an issue. In reality, the facility had the appropriate number of staff to supervise the children in the two rooms. The issue presented when one of the staff went to the separate side of the space and left the children on the other side of the “desk” unattended. This warning could have just as easily been about failure to supervise the children as the ratio standard cited. Once brought to the facility’s attention, the problem could have been easily resolved. Similarly, the second warning was minor in that the facility would be able to instruct staff to be aware of their charges at all times. Neither of these issues should have been insurmountable for Respondent. The weight of the credible evidence supports Petitioner’s assertion that the December 2013 meeting among the parties was ended on an amicable note with all in agreement. Ms. Witmer next inspected Respondent’s facility in connection with a complaint filed. Although eventually determined to be unsubstantiated, Ms. Witmer was required by law to review activities at the facility that allegedly occurred on April 11, 2014. To that end, Ms. Witmer went to Respondent on April 16, 2014, to specifically consider licensing standards related to ratio and supervision: the two standards essential to support child safety. The allegation claimed a child had been bruised under his chin by some means. Ms. Witmer and the facility director, Angela Straub, viewed the video tape kept at Respondent’s center for the date in question (April 11, 2014). After reviewing the tape, Ms. Witmer determined that the child who was claimed to have been bruised was not injured. Nevertheless, in reviewing Respondent’s video, Ms. Witmer observed other issues. More specifically, Ms. Witmer was able to determine that B.J. (a staff person employed at the facility) committed ratio and supervision violations on April 11, 2014. When confronted by Ms. Witmer and the video depicting the issues noted, B.J. admitted the ratio and supervision violations. Subsequently, Respondent terminated B.J.’s employment with the facility. Additionally, Respondent removed the “table” separating the two rooms and designated the one space for occupancy and staffing. On April 16, 2014, Ms. Witmer advised Ms. Straub and Mrs. Larkin that based upon the video review of the date of the alleged incident, the two standards violations would be imposed against the facility. The video tape for the April 11, 2014, activities at Respondent’s facility remained in Respondent’s possession. At all times material to the allegations of this case, Respondent exercised exclusive control over the video. Respondent did not maintain a copy of the video of the facility for April 11, 2014. At hearing, Respondent disputed the accuracy of Ms. Witmer’s account of the citations for ratio and supervision for April 11, 2014. The persuasive weight of the credible evidence supports Ms. Witmer’s account, the Inspection Checklist she maintained contemporaneously with the events, and her conclusions regarding the deficiencies noted. Subsequent to the child abuse investigation being closed, and in accordance with DCF policy, the Complaint Inspection Checklist, Supplemental Inspection Sheet Complaint Form, and Notice of Administrative Action were sent to the facility. Respondent timely filed a request for an administrative hearing.
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 finding Respondent violated the ratio and supervision standards as alleged, and imposing an administrative fine in the amount of $100.00. DONE AND ENTERED this 24th day of February, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 24th day of February, 2015. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Phyllis Larkin Chutes N' Ladders 2, LLC 1961 Royalview Drive Port Charlotte, Florida 33948 Eugenie G. Rehak, Esquire Department of Children and Families Post Office Box 60085 Fort Myers, Florida 33906 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
