The Issue Should Petitioner's request for enrollment to provide services under the Developmental Services Home and Community- Based Services Waiver be denied?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Petitioner has three children, one of whom is developmentally disabled. This child is 21 years of age but mentally functions as a one-year old. This child is basically confined to a wheelchair. However, this child can sit on the floor and pull himself around by his arms. The other children, ages two and 12, function normally. Petitioner, with the help of her mother, aunt, and several other caregivers, has been seeing to the needs of this disabled child. The services provided to this child by Petitioner are similar to those services which Petitioner would provide to other individuals in need if the Application is granted. In addition to seeing to the needs of her disabled child, Petitioner has been, for approximately 10 years, working as a caregiver providing services, similar to those listed in the Application, to individuals in need outside her home. Presently, Petitioner is working a 12-hour shift seven days a week as a caregiver providing services similar to those services listed in the Application to a person 84 years of age. In order to provide the services applied for, Petitioner will: (a) provide those services to individuals in her home with or without the child being present, when appropriate; or (b) provide those services to individuals outside of her home when necessary and the child can be properly taken care of by another caregiver or is in school. The care of the child, when he is not in school or when Petitioner is not available to care for him, will be provided for by Petitioner's mother, aunt, or husband, or by another qualified caregiver. In the letter denying the Application, the Department states that "Concerns found in reviewing background screening" was the basis for denial. Ms. Linda Brophy, Human Services Program Specialist, the person who apparently made the decision for the Department to deny the Application, testified that she reviewed three different "Hotline reports" concerning Petitioner and relied solely on that review to deny the Application. Ms. Brophy further testified that she did not interview the person or persons making the reports, the persons or persons who investigated the reports, or Petitioner to determine if the allegations made in the report were in fact true. Hotline Report Number 1999-07785 alleges that the Petitioner's disabled child had been left alone. The facts surrounding this report were: (a) Petitioner had carried the child out to the porch to be picked up by the bus to carry him to school; (b) Petitioner's baby was just inside the door and began to cry; (c) Petitioner stepped back inside the house to care for her baby; and (d) while Petitioner was inside seeing to the needs of her baby, the school bus driver and assistant took the disabled child from the porch and carried him to school. Hotline Report Number 2000-089952 alleges that Petitioner left the disabled child with a caregiver that was not qualified to handle the child. The facts surrounding the report were: (a) Petitioner had left the disabled child with a qualified caregiver; (b) the caregiver had an emergency and left the child with another caregiver but failed to leave instructions as to how to get in touch with Petitioner in the event of an emergency; (c) the child had a seizure; and (d) due to the caregiver not having proper instruction, the child's seizure was not timely attended to. However, upon being made aware that the child had suffered a seizure, Petitioner attended to the child. The initial caregiver no longer cares for the child. Hotline Report Number 2001-030947 alleges that while the disabled child was being cared for by Petitioner's mother he suffered a seizure and was taken to the hospital by Petitioner's mother. Petitioner's mother had never witnessed the child having a seizure and was somewhat confused by the event. Apparently, the child very rarely suffers from a seizure, maybe once a year. In any event, Petitioner went to the hospital to see about the child upon being advised that the child had suffered a seizure. There is no evidence that the Department concluded that the allegations contained in any of the above Hotline Reports were founded. The Department did not deny Petitioner's Application based on the lack of qualifications. However, Petitioner has shown that she is qualified to provide those services applied for in the Application. Petitioner has also shown that she is capable of safely and adequately serving individuals to whom she provides those services applied for in the Application. Petitioner intends to operate as an independent vendor, in that she will bill for and be reimbursed only for services personally rendered by Petitioner.
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 approving Petitioner's application for enrollment as a qualified provider under the Developmental Services Home and Community-Based Waiver, Services for the services set forth in the Application. DONE AND ENTERED this 20th day of December, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2001. COPIES FURNISHED: Jack Emory Farley, Esquire District 14, Legal Counsel Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Angenette Frasier 1914 Indian Trails Court Lakeland, Florida 33813-3725 Peggy Sanford, 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 Tallahassee, Florida 32399-0700
The Issue The issue is whether the application of A Professional Nurse, Inc., (APN) for Certificate of Need No. 4636 to operate a home health agency in HRS District IX should be granted. STIPULATION CONCERNING APPLICABLE STATUTES In the prehearing stipulation, the parties agreed that the issues to be litigated are only those relating to the need for an additional home health agency in the HRS service district. The other criteria found in Section 381.494(6)(c), Florida Statutes, which the Department is required to take into consideration in granting certificates of need, are not in dispute. The only portions of the statute and rules which must be examined here are Section 381.494(6)(c)1., 2. and 12, Florida Statutes, and Rule 10.5.011(1)(b)1., Florida Administrative Code.
Findings Of Fact APN's Applications This case arises from the application by APN for Certificate of Need No. 4636, filed in June, 1986. In 1983, APN had filed another application for a certificate of need when the Department had imposed an administrative moratorium on applications. HRS originally denied the application but during the pendency of formal proceedings, reconsidered and would have granted the application, but other parties intervened. APN failed to respond to certain discovery (it did not have an attorney) and at the final hearing therefore was not allowed to present evidence. As a result, APN's 1983 application was denied. With respect to the current application, based upon its June, 1986, filing, under Rule 10.5.008, Florida Administrative Code, a decision would have been due in October of 1986. On September 16, 1986, an employee of the Department requested an extension of time for the Department's decision until January, 1987, because the Department had no rule methodology for determining need for home health agencies, but hoped to have one by January, 1987. APN agreed to a three-week extension but did not agree to defer a decision until January, 1987. In November, 1986, the Department issued a state agency action report proposing to deny the application. At no time during the application process was APN told how need for an additional home health agency would be determined during departmental review in the absence of any need methodology adopted by departmental rule. There were no other applications in HRS District IX filed in the same batch as this application, and there have been no petitions to intervene in this proceeding. APN And Its Related Companies APN is an existing, licensed home health agency which has operated in District IX for nine years. It has applied for a certificate of need in order to qualify as a Medicare and Medicaid provider. Without the certificate of need, it cannot receive Medicare or Medicaid reimbursement for its services. Due to the recent opening of psychiatric hospitals in District IX and the need for follow-up care after such hospitalization, there is a need in District IX for psychiatric home health services. APN has particular expertise in psychiatric nursing. The requirements APN met for licensure are nearly identical to those for certification. There is no capital expenditure necessary for the Medicare and Medicaid certification. APN also started a related company, Professional Staffing Services, which provides nurses for hospitals, nursing homes and other home health agencies. These clients have called upon Professional Staffing Services when they are short of staff. APN currently receives referrals of persons who need home health services which come from hospitals, social service departments, hospital discharge planners. It also has a plan with hospitals for providing indigent care called "Patient Care Partnership Plan" under which it provides two hours of indigent care for each 40 hours of private duty care obtained through a hospital. There are people who could benefit from home health services who are unaware that they qualify to be reimbursed by Medicare for home health services. There are even some physicians who are not familiar with the availability of home health services. Because of the relatively low level of public awareness of the availability of home health services, patients are sometimes placed in nursing homes rather than deceiving health services at home, which would be less expensive and more cost-effective than nursing home care. Method For Determining Need For Home Health Services in District IX Because there is no rule methodology for determining the need for home health services, the method for determining need used by the Department is subject to de novo review in this proceeding. Section 120.57(1), Florida Statutes (1985). The Department presented no evidence of the number of home health agencies it believes are needed in District IX. In the absence of a rule it has no way of quantifying need. The Department has had difficulty in developing a methodology for determining need for home health agencies. Its first rule promulgated in 1977 was known as the Rule of Three Hundred. That rule is determined to be invalid. See Johnson and Johnson Home Health v. Department of Health and Rehabilitative Services, Final Order, DOAH Case 83-2170R, affirmed 447 So.2d 361 (Fla. 1st DCA 1984). Thereafter, the Department used a nonrule policy requiring an applicant to prove that people were not being served in order to justify a certificate of need for a new home health agency. That policy was applied by the Department at the time of the hearing in Upjohn v. Department of Health and Rehabilitative Services, 496 So.2d 147 (Fla. 1st DCA 1986) and was criticized by the court. The Department's current policy of requiring applicants to show that people are not being served is unreasonable. Existing home health agencies have the ability to expand their staff as demand increases. This would preclude the entry of any new competitor into the market if the rule for determining need for additional agencies is that there must be current potential users who are unserved. The Department's assertion that additional need can be shown by surveys of doctors or hospital discharge planners which indicate an inability to obtain home health services places an unreasonable, unattainable burden on an applicant. The expert retained by the Department to help it develop a rule methodology attempted to survey discharge planners and received only a 25 percent response rate, which is unreliable. The Department's assertion that the applicant could show a waiting list as an indication of need is also unreasonable. Those in need of home health services who cannot obtain them do not wait, they obtain alternate services, by such means as entering a nursing home. Finally, to the extent that patients or even physicians are unaware of the availability of home health services, it is not possible to structure any survey to quantify that pool of unmet need. APN's Need Methodology The testimony of the health planning expert presented by APN, Eugene Nelson, was generally persuasive. He advocated an assessment of need based upon a use rate formula. Nelson found that the patients used home health services at varying rates throughout the state, with greater use in the southeast, less use in the mid-portion of the state, and lower use in north Florida. He therefore suggested the use of different use rates in north, central and south Florida. District IX is in the southern area. The data on the use of home health services by patients is not reported to the Department or to local health councils, and is therefore not readily available. It can be obtained, however, from Medicare financial intermediaries based on reimbursement reports those intermediaries process on behalf of the federal government. Only the Department can obtain this data. Intermediaries will not supply it to CON applicants on request. The most recent data which is complete is 1984 data. When this use rate is applied to the population over age 65, one can derive the expected number of Medicare home health visits for 1987. An HRS service district is the appropriate planning unit. By multiplying the use rate in south Florida times the District IX population over 65 (2.4446 x 268,056) the total expected visits for 1987 are 655,290. Even using the lower, and therefore more conservative, statewide average use rate yields 508,154 visits (1.8957 x 268,056). Nelson then converted the number of visits to a reasonable number of agencies based upon the number of visits each agency ought to be able to perform. There is little economy of scale in home health agencies and it is therefore difficult to determine an optimum agency size. Nelson discussed data showing reasonable agency size ranges from 9,000 to 15,000 visits per year. This range of agency size is accepted as reasonable. Using 15,000 visits as the appropriate agency size (which is conservative), there would be a need for 44 agencies in District IX if the south Florida use rate is applied, and 34 agencies needed if the statewide use rate is applied to the appropriate population. There are currently 25 existing home health agencies which have certificates of need in District IX. This methodology shows a net need for between nine and 19 new home health agencies. APN's use rate formula for determining the number of home health agencies is consistent with the goals and priorities found in the State Health Plan and the Local Health Plan. In this case, one of the significant objectives of the State Health Plan is Objective 1.5 which is To assure that the number of home health agencies in each service area promote the greatest extent of competition consistent with reasonable economies of scale by 1987. RECOMMENDED ACTION: 1.5a: Develop a need methodology based on historic cost data for Florida Home Health Agencies. Because it currently has no rule methodology for determining need for home health agencies, the Department has contracted with Dr. Elton Scott to draft a formula for determining need. The preliminary report of Dr. Scott recommends a methodology based on the historical Medicare use rate and is generally similar to one presented by APN. Until it adopts a new methodology by rule, the current policy of the Department is to request extensions of time for CON review from applicants rather than process the applications. This results in a de facto moratorium. No applications have been approved under the current policy of requiring the applicant to prove unmet need. In the record of this case the Department has failed to present any qualified health care expert to give any opinion about appropriate health care planning for home health agencies or to justify its current policy of requiring applicants to present evidence of need on an anecdotal basis. The policy is unreasonable for reasons stated in Finding of Fact 15.
The Issue Pursuant to the Stipulation, the factual issues to be determined are: Whether DHRS' initial agency action in denying CON #4912 to Home Care was substantially justified; Whether special circumstances existed which would make an award of fees and costs unjust. Whether this action was initiated by a state agency within the meaning of Section 57.111(3)(b)3, Florida Statutes. The ultimate issue for determination is whether Petitioner is entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access to Justice Act (FEAJA), for fees and costs incurred in DOAH Case No. 87-2150.
Findings Of Fact Pursuant to a Stipulation entered into by the parties, filed on November 10, 1988, the parties have admitted and/or stipulated that: DHRS' initial agency action was to deny CON #4911 to Home Care for the establishment of a Medicare home health agency to serve patients in Walton and Okaloosa Counties, Florida. After preliminarily denying Home Care's CON application, DHRS was required by statute or rule to provide Home Care with a clear point of entry to a formal administrative hearing pursuant to Section 120.57, Florida Statutes. Home Care's Petition for Attorney's Fees was timely filed after Respondent, DHRS, filed a Final Order in this case on July 26, 1988, sustaining Home Care's position that it should be awarded CON #4911. Home Care is a "small business party" within the meaning of Section 57.111(3)(d)1.b., Florida Statutes. Home Care is a "prevailing party" within the meaning of section 57.111(3)(c)1., Florida Statutes. Home Care incurred reasonable attorneys' fees and costs in Case No. 87- 2150, at least in the amount of $15,000. The following findings are based upon the record presented: Home Care filed its timely petition in this fee case after Respondent, Department of Health and Rehabilitative Services ("DHRS") entered a final Order on July 26, 1988, in Case No. 87-2150 granting Home Care a certificate of need ("CON") to operate a home health agency. DHRS' Final Order was a reversal of its original position on Home Care's application which was initially denied by DHRS. A formal administrative hearing was held before the undersigned on the issue of whether Home Care was entitled to a CON. The pleadings, transcripts, and exhibits in that proceeding, Case No. 87-2150, have been duly considered in regard to whether DHRS' actions were substantially justified in initially denying Home Care's application. The parties have stipulated that those documents shall constitute part of the record in this proceeding. The following findings are based upon the record in Case 87-2150 and the findings made in the Recommended Order entered in that case and adopted by the agency's final order. DHRS is the state agency responsible for administering the State Health Planning Act pursuant to Sections 381.701 through 381.715, Florida Statutes. (a) At the time DHRS denied this application, it did not have any published rule or policy on the methodology for determining need. Its original rule was successfully challenged and in 1984 DHRS attempted to promulgate a new rule. This proposed rule was invalidated in 1985 because it was based upon a use rate methodology and contained arbitrary criteria. Subsequently, DHRS published an interim policy which it used to assess home health care CON applications. The interim policy was applied to the first batch of applications in 1986 and used a rate population methodology which projected the number of Medicare enrollees using home health care services. The projected number of users was multiplied by the average number of visits per medicare home health care user. See Paragraph 15 of Recommended Order, Case No. 88-4763F. This interim policy was defended by DHRS in the First DCA in December 1986. In the summer of 1986, representatives of the Florida Association of Home Heath Agencies complained to the governor's office about the interim policy. After meetings between the staff of DHRS and the Governor's office, the Department abandoned the interim policy. No change occurred in the medical or financial factors which would warrant a change in policy. Additional applications had to be approved by Ms. Hardy's superiors. Home Care filed a Letter of Intent on October 8, 1986, and a CON application for a Medicare-certified home health agency in Okaloosa and Walton Counties on December 15, 1986. This was application CON Action No. 4911. DHRS published its notice of denial of CON Action No. 4911 in a letter to counsel for Home Care dated April 30, 1987. No specifics were given regarding the grounds for denial. Applicants at that time had been asked to give DHRS an unlimited extension of time within which to render a decision on their applications. Those who refused had their applications denied and were required, similar to Home Care, to demonstrate an unmet need based upon the broad statutory criteria found in Chapter 381, Florida Statutes. DHRS characterizes the procedure above as a free form action utilizing the statutory criteria found in Section 381.705, Florida Statutes. DHRS argued in Case No. 87-2150 that its incipient policy looks at the actual need by applying the 13 statutory criteria and bases its conclusion upon information collected from local home health service providers and the local health council. The denial of Home Care's application by DHRS does not state how DHRS applied the statutes to Home Care's application in order that Home Care or others could ascertain a developing standard. DHRS admitted that it did not have any rule upon which to adjudicate the application and DHRS did not present any credible evidence in support of its denial in Case No. 87-2150. DHRS did not adduce evidence supporting its denial because it was DHRS' policy to place the burden of proving both the facts and the methodology on the applicant. The deposition of Joseph Mitchell was introduced and made a part of this record. Mitchell's testimony is clear that, although there is a possibility Home Care could recoup some portion of the costs of litigation in medicare reimbursement as a cost of organizing and establishing the business, it is not certain that Home Care would be compensated because there is a cap on all reimbursable costs above which Medicare will not reimburse a provider and such legal expenses might not be allowed. See Deposition of Mitchell, page 76-78. Intervenors Choctaw Valley Home Health Agency and Northwest Florida Home Health Agency submitted a proposed order in this action seeking a dismissal of Home Care's petition for attorneys' fee and costs as to any relief from the Intervenors.
The Issue Whether Respondent committed the violations in the Administrative Complaint and, if so, whether Respondent's license to operate Hoffman, Frieda Adult Family Care Home should be renewed.
Findings Of Fact Petitioner is the agency responsible for the licensing and regulation of adult family care homes in Florida pursuant to Chapter 400 Part VII, Florida Statutes. Mr. John Newton is a life safety inspector for AHCA and had conducted annual surveys of Frieda Hoffman's Adult Family Care Home over the years. As a result of a complaint received by AHCA from Adult Protective Services of Florida, Mr. Newton went to Respondent's facility to conduct a complaint investigation. The complaint involved an incident that happened in Alabama regarding a 98-year-old resident of Hoffman's facility (Resident 1) as reported by Alabama Adult Protective Services to Florida Adult Protective Services. During the course of the investigation, Mr. Newton gathered documents including a copy of a police report from the Hoover Police Department in Alabama and a hospital report from Shelby Baptist Medical Center in Alabama. He interviewed the police officer, the emergency room physician, the daughter-in- law of Resident 1, a former alternate caregiver, and another resident of the facility (Resident 2). On January 1, 2001, police officers were called to the scene at a bar in Hoover, Alabama, where Mrs. Frieda Hoffman and her daughter, Jeanette Hoffman, were intoxicated and had been fighting physically. While at the bar investigating the domestic fight, the officers went outside to where the Hoffmans' van was parked. Resident 1 had been travelling with Mrs. Hoffman and her daughter in their van. At 3:50 a.m., Resident 1 was discovered by the police officers in the rear of the Hoffmans' van wearing a nightgown, a coat, and covered by a blanket. The ignition was not on despite the snowy 20 degree weather. Resident 1 was sitting in the van next to two soiled dog cages. The police report noted that the van had a strong odor like a kennel. The only response the police officer could get from Resident 1 was that she opened her eyes. Upon inquiry, Mrs. Hoffman initially told the police officer that Resident 1 was her mother. However, she later told the officer the identity of Resident 1 and gave the officer phone numbers of Resident 1's family. Resident 1 was taken by ambulance to Shelby Baptist Medical Center's Emergency Room. The triage sheet from the emergency room nurse indicates that when Resident 1 arrived at the hospital, she was wearing a urine-soaked diaper, had a bluish color to the right hand and left shoulder, and had edema to the right hand and forearm. The emergency room physician's report indicates that when Resident 1 was admitted, she was suffering from a urinary tract infection, dehydration, hypertension, two fractured fingers, and a pressure area to the right ankle. Resident 1 also suffered from dementia with depression and confusion. When Mr. Newton went to the Hoffman adult care home as part of the complaint investigation, Mrs. Frieda Hoffman and her daughter, Jeannette, were there. Mrs. Hoffman did not cooperate with Mr. Newton's questioning. Jeannette Hoffman did attempt to answer Mr. Newton's questions, but Mrs. Hoffman became belligerent with her daughter and the two started arguing and pushing each other around. Greg Rice is employed by AHCA in the assisted living unit. His unit regulates facilities including conducting licensure and relicensure reviews. His role in this proceeding was to review Mr. Newton's findings and determine whether he concurred that the licensure renewal should be denied. He determined that the licensure renewal of the Hoffman facility should be denied based on an intentional or negligent act affecting the health, safety and welfare of adult family home care residents.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order finding that Respondent violated Section 400.628(1), Florida Statutes, and Rules 58A-14.010(1)(a) and 58A- 14.007(2)(a) and (6)(b), Florida Administrative Code, and deny Respondent's renewal of the license to operate an Adult Family Care Home. DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 11th day of February, 2002. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Stop No. 3 Tallahassee, Florida 32308-5403 Frieda Hoffman 5093 Okaloosa Lane Crestview, Florida 32539 Aaron B. Wentz, Esquire No. 4 11th Avenue, Suite 2 Shalimar, Florida 32579 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308
The Issue The issue is whether Respondent is entitled to the renewal of his license to operate an adult family-care home.
Findings Of Fact At all material times, Petitioner has operated an adult family-care home at 7128 North 50th Street in Tampa. Petitioner owns this home with his cousin. In anticipation of the expiration of his license on September 29, 2006, Petitioner filed with Respondent an application for renewal on May 23, 2006. Renewal applications prompt annual survey inspections, so, after the receipt of Petitioner's renewal application, one of Respondent's surveyors visited the home and performed an annual survey inspection. She noted items that required a follow-up inspection, so, on August 3, 2006, one of Respondent's surveyors returned for the follow-up inspection. Respondent's surveyor was met at the door by Sherille Guider, who stated that she was the caregiver. The surveyor asked to see Petitioner, but she told her that Petitioner did not live at the house, although she showed the surveyor the locked room that belonged to Petitioner. When asked to produce certain routine documents, the caregiver replied that she did not have access to such documents, as they were in the locked room of Petitioner and the caregiver did not have a key. Petitioner appeared a short time after the surveyor's arrival and produced the requested documents. There is some dispute as to whether he offered to show his room to the inspector, but his testimony is unrebutted that he kept a room, with clothes and toiletries, for his exclusive use at the home. He claimed that he resided at the home, although he admitted that did not spend every night there. Subsequent investigation revealed that Petitioner and his wife, from whom he has been separated for two years, claim a different residence within Hillsborough County as their homestead property. Also, Petitioner's driver license currently bears the address of the home, but, at the time of the incident, bore the address of his homestead property. The same appears to be true of the certificate of title to his motor vehicle. Petitioner testified that he originally planned to operate the home as his fulltime job, but was unable to generate enough money doing so. He has since found employment as a certified nursing assistant and often works the 11:00 p.m. to 7:00 a.m. shift. Four or five months prior to the follow-up inspection, Petitioner had hired Ms. Guider to serve as a caregiver at the home. In return for her services as a caregiver, Petitioner rented a room in the home to her at reduced rent. Petitioner allowed her boyfriend also to move into a room, but required a background screening on him, as well as on Ms. Guider. After several delays, the boyfriend completed his form, and, after submitting it, Petitioner learned that the boyfriend had a criminal record. Petitioner demanded that the boyfriend move out. Eventually, Petitioner had to summon law enforcement officers to eject the man. This episode preceded the follow-up inspection. Ms. Guider's hearsay statement to Respondent's surveyor appears to be the strongest evidence on which Respondent is relying in this case. However, for the reason noted above, Ms. Guider was unhappy with Petitioner. Even before her boyfriend had been ejected from the home, Ms. Guider had approached Petitioner's two residents with a plan for her to start her own adult family-care home and for them to move into it. Ms. Guider's short period of employment with Petitioner terminated one day when, without notice, she asked a friend of Petitioner to drive her to the airport so she could fly home to Chicago. She did and never returned. For all these reasons, Ms. Guider does not appear to be a reliable source of information as to Petitioner's place of residence. Petitioner testified that he resides at the home. A friend of 20 years, who also operates an adult family-care home, testified that she visits Petitioner's home regularly and knows that he resides there. Petitioner's claiming of homestead exemption at another address is less evidence of his primary residence and more evidence of his carelessness or fraud in maintaining current information with the Hillsborough County property appraiser's office. The old addresses shown on the driver license and certificate of title are of little importance in determining Petitioner's residence, given the other evidence establishing the home as his residence and his subsequent updating of the addresses in these official records.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Petitioner's application to renew his adult family-care home license. DONE AND ENTERED this 16th day of April, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2007. COPIES FURNISHED: Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Kenneth A. Donaldson 7128 North 50th Street Tampa, Florida 33617 Gerald L. Pickett Agency for Health Care Administration 525 Mirror Lake Drive Sebring Building, 330K St. Petersburg, Florida 33701
