The Issue The issue presented was whether the Department of Children and Family Services was justified in terminating the provider's certification in accordance with Florida Administrative Code, Chapter 65B-11.
Findings Of Fact The Department of Children and Family Services is the state agency responsible for certification and regulation of supported living coaches, pursuant to Florida Administrative Code, Chapter 65B-11. Petitioner was issued by Respondent, a Home and Community-Based Waiver Services Provider Certificate for Supported Living Coaching. Petitioner was provided information which gave him the specific requirements of a supported living coach which Petitioner acknowledged. Petitioner was offered assistance and training but did not take advantage of the support. Petitioner was given notice by letter that an unannounced monitoring would occur within the week of April 13- 17, 1998, and two self-assessment monitoring checklists were included to be completed in order to be reviewed at the monitoring visit. The self-assessment checklists were not completed. On April 15, 1998, the monitors reviewed the information that was available and determined all 30 citations were unmet. Petitioner was informed of the deficiencies by letter dated April 17, 1998, and was given the opportunity to submit a Quality Improvement Plan (QIP). He was also informed that a follow-up visit would occur within 60 days of the acceptance of the QIP. Petitioner submitted his QIP by letter dated April 29, 1998, and did not dispute any of the findings of the monitors' report. The QIP was approved on May 22, 1998. On August 6, 1999, the monitors conducted a follow-up monitoring visit to determine if the QIP had been successfully implemented to bring Petitioner into compliance with the requirements of Florida Administrative Code Chapter 65B-11. The monitors appropriately determined that Petitioner was significantly out of compliance with 14 of the 30 citations unmet. By letter dated August 18, 1998, Petitioner was informed of his noncompliance and a moratorium from accepting new clients was placed on him in accordance with Florida Administrative Code Chapter 65-11.011. Petitioner was given the opportunity to submit a second QIP which had to be implemented within 30 days of its acceptance. Petitioner again submitted a QIP and again did not dispute any of the findings of the monitors' report. On October 23, 1998, the monitors conducted a second follow-up visit to determine if the second QIP had been successfully implemented. Again, Petitioner was significantly in noncompliance with 13 citations unmet. The Department informed Petitioner by letter dated November 3, 1998, of the noncompliance and of the termination of his certification as a supported living coach. Although Petitioner generally alleged at the hearing that he received disparate treatment by the Department, no reliable evidence was presented to support his claim.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order terminating Milton Taylor's Home and Community Based Services/HCBS Medicaid Waiver certification. DONE AND ENTERED this 21st day of January, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 21st day of January, 2000. COPIES FURNISHED: Laura Smith, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Milton Taylor 15710 Herman Street Clearwater, Florida 33760 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner's application for a license to operate a family day care home should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This licensure proceeding involves a request by Petitioner, Yolanda Cheesmon, for a license to operate a family day care home at 1012 Yates Avenue, Blountstown, Florida. On July 2, 1999, Respondent, Department of Children and Family Services (Department), denied the application on the grounds that Petitioner was "previously denied an application to operate a Licensed Day Care Home"; that she had begun "operating at a Day Care Home at 920 Thomas Avenue without being properly registered"; that she had operated for "an unknown period of time" without a telephone, "which is a requirement"; and that she had "requested to become a licensed home and provided [the Department] with false information and a forged letter." The denial of the application prompted Petitioner to request a hearing. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed family day care facility, a licensed family day care home, and a registered family day care center. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care center involves no Department inspections and only requires that the operator undergo background screening, complete a training course, and provide to the Department certain paperwork, including shot records of the children, in order to secure the registration. On August 19, 1998, Petitioner filed the necessary paperwork to operate a registered family day care center at 1012 Yates Avenue, Blountstown, Florida. She received a registration the same month. In its post-hearing submission, the Department represents that the registration was subsequently "terminated." As noted above, a registered home is the least restrictive type of day care facility, and it only required that Petitioner file an application with the Department, undergo background screening, and provide the Department with certain paperwork. Petitioner was, however, required to conform with certain Department "standards," one of which required that she have a working telephone on the premises of the facility, so that Department personnel could always contact her, if necessary. Whether this requirement is based upon a rule or an informal regulation was not disclosed. In September 1998, a Department licensing counselor, Michelle Barsanti (Barsanti), attempted to contact Petitioner by telephone and learned that the telephone had been disconnected, which violated the unidentified Department requirement. Barsanti then sent a registered letter to Petitioner on October 7, 1998, advising that Petitioner must provide a telephone number. By letter dated October 12, 1998, Petitioner advised Barsanti that after she had received her registration from the Department, she had moved the day care center to 920 Thomas Avenue, Blountstown, Florida, and that she had a new telephone number. This move was made because Petitioner says the Yates property "wasn't properly fixed up and all to pass for the inspection." However, an operator must re-register each time the facility is moved; by operating at the new location without a valid registration, Petitioner contravened a statute which prohibits any person from operating a registered family day care center without a registration. It is fair to infer from the evidence that Petitioner was unaware of this requirement and that the violation was unintentional. On October 23, 1998, Barsanti met with Petitioner to assist her in obtaining a registration for the new location. During that meeting, Barsanti learned that Petitioner now desired to operate a licensed, as opposed to a registered, family day care home at her new address, and that Petitioner leased the property from Judy A. Davis (Davis), an absentee landlord who resided in Riviera Beach, Florida. At some point during this process, Petitioner was also advised that she must close her day care center at 920 Thomas Avenue until she obtained the appropriate license. Rule 65C-20.009(1)(a), Florida Administrative Code, provides that if the operator leases the property on which the facility will be located, "[w]ritten approval from the owner of the property must be secured prior to issuance of the license." Accordingly, Petitioner was required to comply with this requirement since she intended to lease the Davis property. In response to the foregoing requirement, Petitioner provided Barsanti with a letter dated October 7, 1998, purportedly written by Davis, and which stated that Davis "[gave] Yolanda Cheesmon permission to operate a Daycare at my appointed residence." Shortly thereafter, Barsanti received an anonymous letter which caused her to question the authenticity of the Davis letter. After Barsanti contacted Petitioner and requested the address and telephone number of Petitioner's landlord, on October 29, 1998, Petitioner sent Barsanti a letter stating in part as follows: I regret to have to tell you that I lied about the letter. I'm very sorry but I was desperate to go ahead without any delay to be licensed so that I can get the insurance policy that my landlord needs. . . . Please forgive me and I hope this doesn't affect my case in any way. And again, I'm very sorry that I thought I had to lie to you. The foregoing admission confirms the Department's allegation that Petitioner provided the Department "with false information and a forged letter," as charged in the letter of denial. Notwithstanding the foregoing admission, Petitioner pursued her application for a license at the Davis property. The application was preliminarily denied on the ground that Petitioner had provided the Department with a forged document. Petitioner requested a formal hearing, and the matter was assigned Case No. 98-5593. After a formal hearing was conducted on April 22, 1999, Administrative Law Judge Steven F. Dean issued a Recommended Order on June 14, 1999, in which he recommended that Petitioner's application be denied, not on the ground that she had made a false statement as alleged by the Department, but rather because the application was moot by virtue of "the passage of time" since Petitioner had by then moved back to her former residence at 1012 Yates Avenue and desired to operate her facility from that location. In addition, at the conclusion of the evidentiary hearing, Judge Dean advised Petitioner to file a new application for licensure using her most current address. Based on that advice, Petitioner filed the instant application. As noted in Finding of Fact 1, the Department has preliminarily denied the second application on numerous grounds. In a Final Order Reversing Recommended Order and Denying Application for Licensure filed on December 27, 1999, the Department rejected the conclusion that the application was moot and instead denied the application on the ground that Petitioner had failed to "meet all of the Department's requirements for licensure." Therefore, Petitioner has had a prior application denied, as alleged in the Department's letter denying her application. In summary, the foregoing facts establish the Department's contentions that Petitioner operated for a short period of time as a family day care home without an appropriate registration; that she operated without a telephone on the registered premises; that she gave false information to the Department when attempting to secure a license; and that she has had a prior application for licensure denied. At the hearing, Petitioner again apologized for filing a forged document; stated it was based on "bad judgment"; argued that the forged document alone is not a sufficient basis to disqualify her from licensure;, and established that she sincerely desires to engage in the day care business. Petitioner has requested that if the license is denied, that she be allowed to retain her registration previously issued in August 1998.
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 application for a license to operate a family day care center at 1012 Yates Avenue, Blountstown, Florida. DONE AND ENTERED this 26th day of January, 2000, 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 26th day of January, 2000. COPIES FURNISHED: Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Yolanda Cheesmon 1012A Yates Avenue Blountstown, Florida 32424 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, No. 252-A Tallahassee, Florida 32399-2949
The Issue Whether the Department of Children and Family Services (Department) failed to immediately provide Destiny Smith with the developmental services to which she is entitled.
Findings Of Fact For the period July 1, 1998 through June 30, 2003, the Health Care Financing Administration (HCFA), Region IV, of the U.S. Department of Health and Human Services, by agreement with the State of Florida, has agreed to permit the Department to provide services in a home and community-based setting to persons diagnosed with mental retardation or developmental disabilities. This was allowed as an alternative to receiving services in an institutional setting. It is referred to as the Home and Community-Based Services Waiver Program, or less formally, the "waiver" or "waiver program." The waiver provided that in "year three" of the program, 25,945 persons would be served, should the Florida Legislature appropriate sufficient funds to serve that number. If the appropriation is insufficient, then fewer persons will be served. Fiscal year 2000-2001 is "year three." Florida has elected to serve the number of individuals funded by the Florida Legislature, up to the number listed in the waiver agreement with HCFA, in fiscal year 2000-2001. Historically, all individuals eligible for developmental services have not received them because of insufficient funding. The Florida Legislature, when providing funding for this program in 1999, established priorities in the 1999-2000 General Appropriations Act, through the use of proviso language. Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ICF/DD) institutional placements; and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services after accurately assessing the actual costs of each person's support plan. The Department implemented the 1999 appropriation for fiscal year 1999-2000 by promulgating a spending plan that directed the Department's districts to provide services to 15,984 persons pursuant to the priorities set by the Florida Legislature. The 2000 Florida Legislature appropriated funds to serve an additional 7,377 persons for a total of 23,360. This appropriation contained proviso language which was identical to that found in the 1999 General Appropriations Act. An addition to the proviso, however, stated that, "The Medicaid waiver services mix must be fully met for all eligible participants before funds are transferred to non-Medicaid covered services, with the exception of room and board payments." The Department implemented the 2000 appropriation by promulgating a spending plan that continued the previous year's spending plan. This plan stated that individuals who are new to the system after July 1, 1999, would only be served after those on the original waiting list are served, unless they have been determined to be in crisis pursuant to a crisis assessment tool. Petitioner applied for the general revenue individual and family support program. This program is in the category of "non-Medicaid covered services." The Department determined that Petitioner was eligible for developmental services on July 11, 2000. However, the Department further determined that Petitioner did not presently qualify for funds appropriated for fiscal year 2000-2001 because she became eligible after July 1, 1999, and because the program she sought was one which the Florida Legislature determined should be funded at the previous year's level. The crisis assessment tool is used to identify individuals who are in crisis situations. A crisis situation occurs when there is a court order mandating care; when there has been a determination that an individual is dangerous to himself, herself, or others; where there is abuse or neglect; where the person is homeless; when the person's caregiver can no longer provide for the person; or in other situations where there is a need to ensure the individual's safety and security. Petitioner does not meet any of the criteria on the crisis identification tool. As a result, she is not eligible for immediate service. At the time of the hearing there were individuals who were on the waiting list who were determined to be eligible prior to July 1, 1999 who have not yet been served. Only after those individuals are served can the persons eligible after July 1, 1999, be served. Petitioner may ultimately be provided developmental services, but this cannot occur until funds are available to the Department for that purpose.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order finding that the Petitioner is not entitled to receive developmental services until the Department determines that funds are available for that purpose. DONE AND ENTERED this 8th day of January, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 8th day of January, 2001. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Destiny Smith 27619 25th Place Branford, Florida 32008 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard 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 in this case is whether petitioner's application for certification as an independent support coordinator should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, petitioner, John Mark McClanahan, challenges a decision by respondent, Department of Health and Rehabilitative Services (HRS), which denies his request for certification as an independent support coordinator. If his request is approved, petitioner would be authorized to work with eligible developmentally disabled persons who are at risk of institutionalization and assist those persons in obtaining services that are needed to avoid institutionalization. These services are a part of the Home and Community-Based Waiver Services of the Medicaid program. The program is more commonly known as the Medicaid-Waiver program since HRS was required to obtain a waiver from the federal government in order to provide these services. Prior to 1995, organizations could be certified by HRS as independent support coordinators and employ qualified individuals under their certification without those employees having to be certified. Pursuant to recent changes in the federal law, however, which HRS must observe, individuals must now obtain certifications and can no longer work under the umbrella of their employer's certification. A certification is valid for a one year period, and it must be renewed by the holder each year thereafter. In order to receive federal Medicaid funds for services provided by support coordinators, HRS was required to submit a plan to the federal Health Care Financing Administration (HCFA) for its approval. Under the plan, HRS is required to ensure that all providers of support coordinator services meet certain federal "assurances." One such assurance requires that the health and welfare of the recipients of those services will be protected. A failure to adhere to such assurances may jeopardize HRS's right to federal funding. It can be reasonably inferred from the evidence that petitioner is aware of these requirements. Beginning in March 1994, petitioner was employed as an independent support coordinator by Independent Choice Management, Inc. (ICM), a Fort Walton Beach, Florida firm that has held a certification since 1993. Its president is Margo Keeler. In that position, petitioner worked out of his Tallahassee home and provided support coordinator services to approximately thirty-four developmentally disabled clients. As a result of an HRS audit of petitioner's records, and what Keeler perceived to be noted deficiencies in petitioner's performance, petitioner was terminated from his position with ICM effective August 24, 1995. In September 1995, he initiated this proceeding by seeking a certification in his own name. After reviewing petitioner's application, HRS determined that the application should be denied. Its reasons are found in a letter to petitioner dated January 3, 1996, which reads as follows: In response to your letter which we received on December 22, 1995, and in accordance with our letter to you dated November 28, 1995, the decision not to certify you were (sic) based on the following: Your inadequate performance as a support coordinator which necessitated your termination by your previous employer; Monitoring done by this department which reflected numerous non-compliance of standards; Complaints from consumer and providers of other services. The factors noted above would also prevent us from approving certification in other areas of the Developmental Services Home and Community Based Waiver. When a new support coordinator or entity begins working with HRS clients, HRS normally "monitors" that person or entity within the first ninety days. Such a review was made of ICM within the first three months after it was certified. In addition, a monitoring or recertification process of all certified coordinators (and its individual employees) is conducted by HRS each year. This process involves a review of client files, whose main ingredient is a support plan, which details the services to be provided the client. An integral part of the support plan is the cost plan, which contains a budget allocated to each client for the purpose of needed services. HRS undertook an annual recertification audit of ICM's files in early May 1995. As a part of that audit, it also reviewed a random sampling of petitioner's client files. Of the four client files initially examined from petitioner's case load, all had incomplete support plans, that is, they were not completed by the due date. By law, such plans must be completed within 365 days from the date the last plan was completed. Since this was a "major" issue as far as HRS was concerned, it proceeded to review all of petitioner's files. During the more comprehensive audit, HRS discovered that around twenty- five out of thirty-four support plans maintained by petitioner had not been completed on a timely basis. Although petitioner took the position that a support plan for a particular month could be completed by the last day of the month and still be considered timely, this view was contrary to ICM instructions and HRS policy. Also, the audit revealed that out of twelve cost plans missing from ICM's central records, ten were from petitioner's files. Thus, it is fair to say that the majority of problems related to petitioner's client files. A follow-up audit of petitioner's files was conducted by HRS on August 10, 1995, to resolve the issues raised in the earlier audit. Although HRS found the support plans to be current, several cost plans had not been submitted to HRS, and several files had no case notes since April 1995. Case notes should be completed by the end of each month. Besides the above noted deficiencies, HRS also received a complaint from a parent of one of petitioner's clients. The substance of the complaint is hearsay in nature, and thus no findings have been made with respect to its substance. The receipt of the complaint, however, was one more factor in HRS's decision not to certify petitioner. At hearing, petitioner contended that he had difficulty in obtaining information from Keeler regarding how to maintain and complete certain forms. The evidence shows, however, that before beginning his duties with ICM, petitioner was given training in all aspects of recordkeeping. More specifically, he received at least four training sessions in April 1994. He also received at least one refresher course later that year. Besides his training courses, petitioner received a number of memoranda from Keeler throughout the year regarding recordkeeping requirements. For example, on November 30, 1994, Keeler advised petitioner by memorandum of the "importance of completing ISP's (individual support plans) on or before their due date," that "overdue ISP's will no longer be tolerated," and that they must be "completed in a timely manner." Memoranda of similar import were sent by Keeler to petitioner on September 27 and December 4, 1994, and July 10, 1995. Finally, according to Keeler, the two regularly discussed the subject of recordkeeping by telephone. Petitioner disputes the number of times he allegedly spoke with Keeler by telephone, but it is fair to infer that he had sufficient training and backup support to properly maintain his files, and that Keeler was available by telephone to answer any questions he might have. Petitioner further contended that HRS "pressured" Keeler into terminating his services with ICM. In this regard, Keeler was never told by HRS that she must terminate petitioner, but she acknowledges that HRS "alluded" to the fact that it would be "in her best interest" if petitioner was terminated. The real motivation in terminating petitioner, however, was because of the numerous deficiencies found in the audit, most of which were those of petitioner. Because of this, Keeler firmly believed that ICM's certification would be "in jeopardy" if petitioner remained as an employee. Petitioner further contends that certain HRS employees, and especially a management review specialist who conducted the audits and reviewed his application, were biased in some measure against him. However, the evidence does not support this contention. On this issue, the record shows that of some thirty certified support coordinators within HRS District II during the time period when petitioner was employed, at least four were decertified by HRS for deficiencies and a number of others declined to seek renewal of their certifications for various reasons. As to recordkeeping, petitioner conceded that paperwork was his "weak" point, but he contended that HRS should have monitored him more frequently, such as every two months, so that it could provide a continuing source of constructive advice, and give him more opportunity during the year to correct any noted deficiencies. While more audits might have been desirable, due to a lack of resources, and no statutory or rule mandate to perform audits more frequently than it does, HRS satisfied its audit responsibility by twice monitoring ICM in 1995. In summary, the greater weight of evidence supports a finding that, due to performance deficiencies, petitioner was terminated as a support coordinator by his previous employer, ICM, and an audit of his clients' files reflected "numerous (incidents of) non-compliance (with federally mandated) standards." Since a complete and accurate central record is essential to the health and welfare of the clients, a failure by petitioner to maintain the same adversely affects HRS's ability to ensure that the health and welfare of the recipients of program services will be protected. There is, however, insufficient competent evidence to support the charge that his conduct with clients endangered their health and welfare. Given these findings, the application should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying petitioner's application for certification as an independent support coordinator. DONE AND ENTERED this 18th day of October, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of October, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 John Mark McClanahan 2117 Queenswood Drive Tallahassee, Florida 32303 Richard E. Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Tommy E. Roberts, Jr., Esquire Post Office Box 15884 Tallahassee, Florida 32317
Findings Of Fact Petitioner is a healthy, alert 27-year-old female individual, who was born with Downs Syndrome and is visually impaired. Petitioner is an adult and is a Medicaid waiver client of Developmental Services and is receiving supported living services. Petitioner, by her choice, is presently residing in the home of her mother, Sandra Kuhn. She desires to continue to live independently outside of a group home or institutional setting. Petitioner desires to have an active social life, outside of work. At present, she participates in the Special Olympics, bowling, attends dances and dates. However, Petitioner's participation is restricted because she must rely on her mother or friends to provide transportation to these functions. She is capable of using a taxi; however, she has limited funds for such purpose. Petitioner is employed on a regular basis at Brevard Achievement Center (BAC), the local sheltered workshop. She receives transportation services from Space Coast Area Transit (SCAT) five days a week to transport her to and from work. Payment for this service comes from Medicaid waiver funds. Funds are also provided for Respite Care services for family members on a regular basis. Petitioner takes the position that the goal of the statute and rules relating to supported living services is to allow clients to live as independently as possible in their own houses and to achieve productive lives as close to normal as possible. Section 393.066(1) and (4), Florida Statutes. Petitioner states that an important part of living a normal and productive life is the ability to partake of recreational and leisure activities and to develop interpersonal relations outside of work or the client's immediate family. This can be accomplished by authorizing waiver funds to provide transportation services to special events or regularly-scheduled activities. Petitioner argues that such services may be authorized under the current rules, as provided in Rule 10F-11.006(1),(3),(h),(l),(m),(p), Florida Administrative Code. The Department is considering a change in its policy regarding the use of waiver funds to provide transportation services for leisure and/or recreational uses by drafting proposed Chapter 10F-13, Florida Administrative Code. Such services have been requested by Petitioner in her support plan for more than two years. Petitioner's Support Coordinator has supported this request. However, such request has been denied by the District Seven Developmental Services Office. Respondent takes the position that waiver funds can only be used to provide transportation services for such purposes that will prevent the institutionalization of a client. The District's position is that regardless of whether funding is available, waiver funds cannot be used to provide for recreational or leisure activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order granting Petitioner's request for waiver funds to be used for transportation services, subject to the restrictions contained in paragraph 19 and availability of funds for such purpose. DONE and ENTERED this 24th day of April, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 24th day of April, 1996. COPIES FURNISHED: James A. Sawyer, Jr. District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Ms. Mary Sandra Kuhn 250 South Sykes Creek Parkway Apartment 201B Merritt Island, Florida 32952 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Vista Manor should have been issued a Conditional license on November 7, 2001, for the alleged failure to provide services and equipment necessary to avoid physical harm to a resident.
Findings Of Fact Petitioner is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. Respondent is licensed to operate a skilled nursing facility located at 1550 Jess Parrish Court, Titusville, Florida, pursuant to Chapter 400, Part II, Florida Statutes. Petitioner conducted a survey of the nursing facility on November 7, 2001. In its report, it alleged that there was a violation of “Tag F224,” which is a shorthand reference to 42 Code of Federal Regulations (C.F.R.) Section 483.13(c). This federal standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288, Florida Administrative Code. Petitioner is required to rate the severity of any deficiency identified in a survey with a “class” rating. The surveyor assigned the F224 deficiency a "Class II" rating. A Class II rating means Petitioner believes the deficiency “has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.” Section 400.23(8)(b), Florida Statutes. Based upon the identification of the Class II deficiency, Petitioner changed Respondent’s licensure rating from Standard to Conditional, effective November 7, 2001. The Standard rating was restored effective December 21, 2001. Resident 3 was admitted to Vista Manor on October 18, 2001. He was a large man who weighed 173 pounds. He was paralyzed from his waist down and had little or no feeling in his lower extremities as a result of radiation treatments he received for colon cancer. He had scoliosis, or a twisted spine, that required surgical placement of a rod into his spine. He suffered from contractures of his knees and bilateral foot drop, a condition which resulted in his foot being flexed so that his toes pointed toward the floor. He also suffered from osteoporosis and osteopenia, degenerative conditions of his bones that causes them to be extremely fragile. Resident 3 was unable to walk but was able to sit in a motorized cart and drive himself about the facility. Because of his size and immobility, Resident 3 required the assistance of two staff members and use of a lifting device commonly called a Marissa lift for transfers from his bed to his cart and vice versa. To successfully facilitate a transfer using the lift, staff would place the resident on a cloth sling, attach the sling to the lift at three different points on the sling, raise the resident in the sling from his cart or his bed, pivot the lifting device, and lower him to the desired surface. Staff successfully completed daily lift transfers of the resident during the first two and a half weeks of his stay at Vista Manor. On the evening of November 1, 2001, Resident 3 requested staff to transfer him from his cart to his bed. Two certified nursing assistants (CNAs) went into Resident 3’s room to assist the resident in that transfer. They moved the lift into place and stationed themselves on either side of the resident. At that time, Resident 3 was seated halfway out of his chair but was being held by the CNA standing on his right side. When the other CNA began to secure the sling on the left side of the resident to the lift, the resident slipped out of the seat of his cart and fell to the floor. After the incident, staff immediately tended to Resident 3. In their initial assessment, it appeared that he had not sustained any injuries. The following day, Resident 3 was sent to the hospital where he was diagnosed with non-displaced fractures to both of his femurs. Sometime between November 1 and November 7, 2001, Petitioner received a complaint regarding the incident and sent a surveyor to investigate it. The surveyor first went to the hospital where she reviewed medical records, interviewed caregivers and interviewed the resident. She then went to the nursing home where she reviewed several resident files and interviewed staff while she was in the facility. The surveyor also obtained written statements from the two CNAs who were involved in the transfer of Resident 3 and a written statement from a nurse who came into the room immediately after Resident 3 slipped on the floor. Based upon her investigation, she concluded that the CNAs could have prevented Resident 3 from falling, and their failure to do so constituted neglect of the resident. It does not appear that Resident 3 can accurately recount past events, in light of the implausible sequence of events he described. Therefore, Resident 3's statement to the surveyor that the CNAs neglected him is not credible. Even if credible, the resident's statement is hearsay that was not corroborated by any other evidence. The decision as to whether a resident is properly positioned to begin a transfer rests ultimately in the judgment of the caregiver. If the caregiver believes that the resident is balanced in his seat or that the transfer can be safely completed, it is appropriate to begin a transfer. Nothing in the CNAs’ statements indicates or suggests that either CNA believed that it was unsafe to transfer the resident. Respondent demonstrated that the CNAs attempted to transfer Resident 3 appropriately in light of the conditions they faced when they approached him. Resident 3’s lower body paralysis, his curved spine, his contractures of his knees and his bilateral foot drop made it impossible for him to be perfectly positioned in the seat of his cart. Both his physical limitations and his size prevented the CNAs from pushing him back in his seat. The CNAs used a technique that was consistent with their training and the resident’s care plan. Prior to attempting the transfer, they stationed themselves on either side of the resident. One CNA held him while the other attempted to hook up the sling. This technique would have allowed them to secure the resident even if he was unbalanced, and would have further allowed them to lessen the impact of a fall if he slid out of the chair. Because they used proper transfer techniques with Resident 3, there is no basis upon which to find that the CNAs’ decision to continue with the transfer of Resident 3 in the position they found him was neglect or even poor judgment. Unfortunately, the incident and the attendant injury occurred in spite of staff’s compliance with accepted standards of care
Recommendation It is, therefore, RECOMMENDED that the Director enter a final order revising the November 7, 2001, survey report by deleting the deficiency described under Tag F224, and issue a Standard rating to Respondent's facility. DONE AND ENTERED this 2nd day of October, 2002, 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 (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 2nd day of October, 2002. COPIES FURNISHED: Eileen O'Hara Garcia, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue is whether Petitioner, Basedeo Ramassar, is eligible for exemption from disqualification from working in a registered or licensed family day care center under Subsection 402.302(3), Florida Statutes.
Findings Of Fact Under Sections 402.301-319, Florida Statutes, the Department of Children and Family Services is the agency responsible for establishing licensing standards for child care facilities and child care personnel. Petitioner, Basedeo Ramassar, is married to Cathy Ramassar; they both reside at 2707 West Airport Boulevard, Sanford, Florida. Cathy Ramassar applied to Respondent to renew her license as a family day care facility at her home at 2707 West Airport Boulevard, Sanford, Florida. As a result of her application, Respondent conducted a Level 2 background screening. As a result of the screening, it was determined that, on March 20, 2000, Basedeo Ramassar had pled nolo contendere to the charge of assignation to commit prostitution, a violation of Section 796.07, Florida Statutes. When Cathy Ramassar was advised that her license would not be renewed because of her husband's violation of Section 796.07, Florida Statutes, she requested an administrative hearing and, shortly thereafter, Mr. Ramassar requested an exemption pursuant to Section 435.07, Florida Statutes. Michael Ingram, District 7 Screening Coordinator, convened a three-person Exemption Review Committee which considered the circumstances surrounding the disqualifying criminal incident, nature of harm to victim, amount of time since the last criminal incident, and the applicant's general history. The Exemption Review Committee relies on the applicant to provide information on rehabilitation. The Exemption Review Committee denied Mr. Ramassar's exemption request based, in part, on the fact that not enough time had elapsed since the 1999 offense and the March 20, 2000, nolo contendere plea and a 1990 domestic battery arrest which occurred prior to his current marriage. This denial was a proper exercise of the authority vested in the Exemption Review Committee. Mr. Ramassar testified that during the afternoon hours of November 26, 1999, he approached an undercover female police officer and "offered her $20 for straight sex." This resulted in his arrest and ultimately, his nolo contendere plea to assignation to commit prostitution. With the help of a supportive wife and members of their church, which he regularly attends, Mr. Ramassar has made a good start on a rehabilitation program. Apparently, he has a good marriage which has withstood the humiliation of public knowledge of his infidelity and criminal involvement; each witness testified to awareness of his criminal involvement. As a part of the exemption process, Subsection 435.07(3), Florida Statutes, requires an assessment of "the nature of the harm caused to the victim"; the only "victim" in this case is Mr. Ramassar's wife, who has not only suffered the public humiliation of her husband's infidelity, but has been denied a license renewal for her day care facility. Mr. Ramassar is regularly employed as a mason and, as a result, except on rare occasions, is away from the day care facility during its normal working hours. Witnesses who had children enrolled in Mr. Ramassar's wife's day care facility expressed little concern with the knowledge that Mr. Ramassar had pled nolo contendere to assignation to commit prostitution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner, Basedeo Ramassar, an exemption from disqualification from employment as a caretaker for children and granting Cathy Ramassar a renewal of her license. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 12th day of September, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 George B. Wallace, Esquire George B. Wallace, Esq., PA 700 West First Street Sanford, Florida 32771 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in the case are whether the allegations of the Administrative Complaint filed in this case are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a state-licensed child care facility located at 2932 Douglas Avenue in Fort Myers, Florida. Dorothy Robinson owns the facility. In 1999, the State Legislature amended the law related to licensure of care facilities to require that a person with a "director credential" be present in the facility. The law took effect in 2000, and provided that by January 1, 2004, the requirement would be one of the minimum standards for licensure. Since the statute was enacted in 2000, the Petitioner has provided multiple notices regarding the requirement to licensed child care facilities, including the Respondent. Such notices were provided as part of routine facility inspections and re-inspections as well as by separate mailings directed to the licensees, including the Respondent. Additionally, employees of the Petitioner have directly discussed the requirement on repeated occasions with the Respondent. The evidence establishes that the Respondent was aware of the requirement, of the criteria established to obtain the credential, and of the deadline for complying with the requirement. The criteria include an educational component requiring that a person seeking to be credentialed complete a curriculum of approved courses. The Petitioner has provided funding to assist facilities to meet the educational requirements. The Petitioner has provided specific information to the Respondent related to the required courses and the availability of funds. There is no requirement that the person with the director credential be an owner of the facility. A child care facility can meet the requirement by employing a person holding the credential as the director. As the time for compliance with the requirement drew near, the Petitioner required that non-complying facilities provide a written plan that explained the manner in which the facility would meet the requirement by the deadline. By a certified letter to the Respondent dated July 30, 2003, the Petitioner directed the Respondent to provide a "written plan of action" within ten days from the date of the letter indicating the means by which the Respondent would comply with the director credential requirement by the January 1, 2004, deadline. The letter advised that failure to meet the requirement could "jeopardize the continued operation of your program." The Respondent failed to provide a written response to the notice. By a certified letter to the Respondent dated January 2, 2004, the Petitioner advised the Respondent that there was no documentation indicating that the Respondent had complied with the director credential requirement. The letter directed that the Respondent provide, within a ten-day period from the date of the letter, documentation of compliance with the requirement. The letter advised that failure to do so would result in issuance of a "provisional" license valid for a period of six months, and that continuing noncompliance at the expiration of the provisional license period would result in action to revoke the license. The Respondent failed to provide documentation of compliance as directed in the letter. On January 16, 2004, the Petitioner amended the Respondent's license to provisional status based on noncompliance with the director credential requirement. The Respondent was notified of the amended licensing status by certified mail. During the six-month provisional license period, the Petitioner made substantial effort to assist the Respondent to meet the criteria required to obtain the director credential, including providing expedited courses to permit completion of the educational component. The evidence establishes that the Respondent did not utilize the assistance offered by the Petitioner and failed to complete the educational criteria required to obtain the credential. At various times, Dorothy Robinson indicated that either she or her daughter, Theresa, would meet the director credential requirement by the deadline. The assistance offered by the Petitioner was made available to both. Neither of the two completed the education required to obtain the credential. The Petitioner informed the Respondent that there would be no additional extensions of the deadline to comply with the requirement, and that the Petitioner could make no exceptions to the requirement. There is no evidence that the Respondent was not aware of the penalty for non-compliance. The evidence establishes that as of the date of the hearing, the Respondent does not comply with the director credential requirement.
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 revoking the license of Dunbar Christian Pre-K School. DONE AND ENTERED this 30th day of September, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 30th day of September, 2004. COPIES FURNISHED: Eugenie Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906 Dorothy Robinson 2932 Douglas Avenue Fort Myers, Florida 33916 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 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 proceeding is whether Petitioner Monroe Lee Kelly, the minor son of his personal representative and mother, Kimberly Maffei Kelly, should immediately receive developmental services or remain on a waiting list for such services.
Findings Of Fact Monroe Lee Kelly is three years old and displays verbal apraxia. Verbal apraxia is delayed speech development. He became a client of Developmental Services on July 28, 2000, after a legislatively designated funding cut-off date of July 1, 1999. Monroe Kelly was receiving speech therapy through Children's Medical Services. However, because he turned three years old he no longer qualifies for services under the medical program even though his apraxia is still a problem. Therefore, the medical program referred Monroe Kelly to Developmental Services for evaluation. Petitioner's mother was also informed by the Department that her son could receive speech therapy to ameliorate this condition from the school system. Verbal apraxia puts Monroe Lee Kelly at risk of having a developmental disability, but is not itself a developmental disability. Testing at a later date will ascertain whether he actually has a developmental disability. Until such testing can be accomplished, however, pursuant to federal law and long-standing policy, the Department regards Monroe Lee Kelly as a client because of his risk status. His mother, for personal reasons, did not apply for benefits through the Medicaid Waiver program. Thus Monroe Lee Kelly is a client of the Developmental Services Program of the Department and is therefore eligible to receive developmental services from that program. The only question is whether Monroe Lee Kelly should receive those services for which he is eligible immediately or remain on the waiting list. Currently there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 2000. A long and complex chain of events and circumstances led to the situation faced by Monroe Lee Kelly. Prior to the 1999 legislative session and after federal litigation, the Department identified 23,361 Developmental Services clients who were enrolled in the developmental services program but were receiving inadequate services. The Governor, members of the Legislature, and the Department met to address this problem and jointly proposed to the Legislature for fiscal year 1999-2000, a plan to address the underserved clients over a two-year period. Under this plan, 15,984 of the identified 23,361 clients would be served during fiscal year 1999-2000, with the remaining 7377 clients to be added to the group in fiscal year 2000-2001. The Legislature elected to route the new moneys into the Medicaid Waiver program, because that program provided for a 45/55 State/Federal match, under which fifty-five cents of federal moneys would be provided for every forty-five cents contributed by the Florida Legislature. Since most of these clients resided in the community and not in institutions, the program utilized under this plan was not the Institutional Medicaid program, but the Home Community Based Waiver program. The Home Community Based Waiver program, also called the Medicaid Waiver program, differs from the Institutional Medicaid program. The Institutional Medicaid program is an entitlement program. The Medicaid Waiver program is not. Consequently, the moneys which fund the Medicaid Waiver program are limited and claims on them must be prioritized. The Legislature directed the Department to prioritize these limited funds by requiring that they be spent first on providing full services to the 23,361 clients already known to the Department as of July 1, 2000. The Department implemented this mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 2000, would receive services. All others would be put on a waiting list. The Department is currently working on a Legislative Budget Request for the coming year which will address the needs of clients, such as Monroe Lee Kelly who came into the system after July 1, 2000. Even so, Monroe Lee Kelly is not eligible for the Medicaid Waiver since Ms. Kelly has declined to apply for Medicaid. The funds she seeks come from another source, the Individual and Family Support appropriation. Nevertheless, for the reasons set forth below, the result in this case is the same as if her child had been on the Medicaid Waiver. In order to consistently apply the legislative intent behind this appropriation scheme to all Developmental Services clients, the Department has applied the prioritization described in paragraph 7, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. The prioritization is required because, in the past two years, the Legislature has not appropriated any new funds under the Individual and Family Support Program. Thus, since the existing client base in Developmental Services remained stable, the new client base has increased by approximately 8,000 clients since July 1, 1999, and the Department can only provide funds to new clients by withholding services from existing clients who received these services in past years. An untenable result. Moreover, the interests of fairness require that the allocation of Developmental Services money be made on a consistent basis. This is particularly true inasmuch as many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Finally, the Department's prioritization puts at the top of the list those clients who are in crisis. Under these circumstances, the Department's decision to allocate the Individual and Family Support moneys entrusted to it by the Legislature in the same manner as the Medicaid Waiver moneys is not unreasonable or unfair. Because Monroe Lee Kelly became a client after July 1, 1999, he can only receive services if he is in crisis. The Department has identified six conditions which, if present, constitute a crisis which would permit it to provide services to persons who became clients after July 1, 1999. These are: A court order from a criminal proceeding requires the Department to provide services. The client is highly dangerous to himself or others, and danger will continue if services are not provided immediately. The client is living in a high risk situation in which abuse and/or neglect is occurring or likely to occur. The client is homeless, living either in a homeless shelter or on the street. The caregiver is unable to provide care for the client, no alternative arrangements are possible, and without the provision of services, the client cannot safely remain with the caregiver. Other circumstances exist which will present a danger to the client's safety and/or security if services are not provided. Monroe Lee Kelly met none of the foregoing criteria. Consequently, the Department could not provide him the services his mother sought on his behalf.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order leaving Monroe Lee Kelly on the waiting list of clients to be served by the Department's Developmental Services Program. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 19th day of December, 2000. COPIES FURNISHED: Kimberly Maffei Kelly 9127 Foxwood Drive Tallahassee, Florida 32308 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 100A Tallahassee, Florida 32399-2949 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard 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 to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's refusal to renew Petitioner's license.
Findings Of Fact Petitioner Linda Stewart, on behalf of Stewart Family Day Care (Petitioner), received the business’ first license to operate a family day care center for no more than 10 children on December 20, 1996. Annual renewals of the license followed until January 2002, following Stewart Family Day Care’s renewal application filed the first of that month. On January 22, 2002, Petitioner was notified that the Department of Children and Family Services (Respondent) had declined to renew Stewart Family Day Care’s license to operate as a family day care. Denial was based on Petitioner’s September 24, 2000, arrest and subsequent conviction for Driving Under the Influence of Alcohol (DUI). License denial was also based on a report made to Respondent of domestic violence (Report No. 2000-075894) in the home in which Petitioner operated the Stewart Family Day Care. An additional report, Report No. 2001-04761, which made allegations that Petitioner was intoxicated while caring for children was closed as unfounded. At the time of both occurrences for which Respondent had concerns, there were no children in the care of Petitioner Stewart with the exception of her son, who was at the time of the alleged domestic violence 16 years of age. As established by the evidence, Petitioner was not the first aggressor and did not initiate the altercation that occurred in her home when a guest, not a live-in as alleged in the report, with too much to drink became violent, hitting Petitioner. Petitioner’s son went next door at his mother’s request and called law enforcement. Following Respondent’s refusal to renew Petitioner’s license, Petitioner has become actively involved with Alcoholics Anonymous (AA). Petitioner’s sponsor in AA testified that Petitioner attends meetings and is sincere in her commitment to AA. Petitioner, it is specifically found, has effectively rebutted through clear and convincing evidence, the allegations of domestic violence upon which Respondent relied for denial of re-licensure. Additionally, the evidence convincingly establishes that the DUI offense committed by Petitioner, at night, was unrelated in any way to her day care business. Further, as established by testimony of parents at the final hearing, Petitioner enjoys their full confidence with regard to the care afforded their children. Licensure renewal has never been denied to Petitioner in the past. Additionally, she has attended, through the years, numerous seminars and short courses to compliment and increase her proficiency in the area of child care.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is Recommended that a final order be entered granting renewal of Petitioner’s license to operate a day care center. DONE AND ENTERED this 4th day of June, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 4th day of June, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 R. Eric Rubio, Esquire 2407 East Bloomingdale Avenue Valrico, Florida 33594-6404 Paul Flounlacker, 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
