The Issue Whether the decision of the Department of Children and Family Services to reject the proposals submitted by the Children's Home Society in response to ITN No. 01-FSD2A/01 and ITN No. 01-FSD2B/01 as non-responsive was contrary to the Agency's governing statutes, the Agency's rules or policies, or the specifications of the ITNs?
Findings Of Fact On or about February 1, 2001, DCF issued ITN No. 01- FSD2A/01, and No. 01-FSD2B/01 for the delivery of foster care licensure, retention and recruitment contracts in both District 2A and District 2B of DCF. Each ITN included a form entitled "Appendix M Statement of Assurances" with the ITN number clearly printed at the top of the page as well as this identifying language, "FOSTER CARE LICENSURE, RETENTION AND RECRUITMENT SERVICES." Appendix M consists of 7 paragraphs of requirements and conditions. Section 6.4 of the ITNs reads as follows: 6.4 RESPONSE TO INVITATION TO NEGOTIATE MANDATORY REQUIREMENTS The mandatory requirements are described as FATAL CRITERIA on the Invitation to Negotiate Rating Sheet. Failure to comply with all mandatory requirements will render an application non-responsive and ineligible for further evaluation. Was application received by the time and date specified in the Invitation to Negotiate? Was one (1) original and seven (7) copies of application supplied? Did the application include the signed State of Florida Invitation to Negotiate Contractual Services Acknowledgement Form, PUR 7105? Did the application include a title page (section 6.2)? Did the application include the singed Statement of No Involvement? Did the application include the signed Acceptance of Contract Terms and Conditions form? Did the application include a signed Statement of Assurances? Did the application include a line budget with narrative justification of the included items? (emphasis in original) Section 6.13 of the ITNs is entitled, "HOW TO SUBMIT AN APPLICATION" and includes the following language: 6.13 HOW TO SUBMIT AN APPLICATION Faxed applications will not be accepted. All seven (7) copies of application packages must be delivered sealed and clearly marked on the outside of each of the packages: 'RESPONSE TO INVITATION TO NEGOTIATE' and contain the respondent's name and address. The applicant is free to use any means of delivery it wishes. The applicant is responsible for ensuring the Department receives all required material prior to the deadline, in the manner required, and at the place requested in this Invitation to Negotiate. Any untimely application will be rejected and returned unopened and unevaluated. * * * . . . A completed application consists of the following: Cover Page (signed and dated PUR 7105 form indicating the total number of pages in the application, included in this document as Appendix B.) Completed Title Page and Table. Responses to each of the requirements of Sections 6.3 to 6.8. Signed and dated Appendix M, Statement of Assurances. (emphasis supplied) CHS submitted proposals to both ITNs. The proposals submitted by CHS for both ITNs did not include the Statement of Assurances found in Appendix M of ITN Nos. 01-FSD2A/01 and 01-FSD2B/01. Instead, both proposals contained a different Statement of Assurances which CHS had previously used in a response to another ITN in a different district of DCF. The statement of assurances which CHS attached contained 11 paragraphs of requirements and conditions. By letters of March 6, 2001, the Department informed CHS that CHS's proposals to the two ITNs did not meet the mandatory requirements listed in the ITNs and that this failure to comply with all mandatory requirements renders their proposals non- responsive and ineligible for further evaluation. The Department made the determination that CHS's proposals were non-responsive in both districts under the same legal and factual analysis. Dr. John Awad, the District Administrator, made this decision on behalf of the Department after consulting staff and legal counsel. The decision of the Department to determine CHS's applications to be non-responsive and ineligible for further evaluation resulted in five eligible applicants in District 2A, and two applicants in District 2B. CHS's failure to include Appendix M, which was a mandatory requirement of the ITNs, and mistakenly including a Statement of Assurances from a different ITN, constitutes a major irregularity. The failure to sign and include this document, which was clearly and expressly required in Section 6.4 of the ITNs, is sufficient to support DCF's position to consider CHS's proposals to be non-responsive and ineligible for further evaluation. In further support of DCF's decision that CHS's proposals were non-responsive, there are significant differences between the Statement of Assurances contained in Appendix M and the Statement of Assurances which was submitted by CHS. The Statement of Assurances that was submitted by CHS expressly referenced services to be provided in Volusia and Flagler Counties which are not within the geographical boundaries of DCF's District Two. Additionally, the Statement of Assurances supplied by CHS guarantees the provision of a plan by December 1, 2000, regarding how it will meet accreditation standards. Appendix M has no such provision. Finally, Appendix M requires the applicant to assure that the applicant has the ability to provide directly, or through contract, all services described in "this Invitation to Negotiate and resulting contract" which are specified as foster care licensure, retention, and recruitment services. The Statement of Assurances which was submitted by CHS assured that it would provide "foster care and related services." This assurance constitutes a different scope of services than contemplated in the ITNs at issue here. The ITNs define foster care recruitment as, "[t]he process of finding foster parent resources for waiting children, using either formal media-based campaigns, or informal procedures recognized as effective by the selected applicant agency." Foster care retention is defined in the ITNs as, "[t]he act of maintaining a base of licensed family foster homes." "Related services" as defined in Section 409.1671(1)(a), Florida Statutes (2000), means "family preservation, independent living, emergency shelter, residential group care, therapeutic foster care, intensive residential treatment, foster care supervision, case management, postplacement supervision, permanent foster care, and family reunification." Moreover, the phrase "foster care and related services" is not defined in the ITNs at issue here and it cannot be inferred that this general phrase encompasses the specific services in the ITNs to which a proposer or an applicant must assure that it will provide. CHS’s failure to sign and include Appendix M, the Statement of Assurances attached to the ITNs at issue, resulted in a failure to meet the mandatory requirement in Section 6.4 of the ITNs. CHS’s use of a form associated with a different invitation to negotiate which specified a different scope of services for a different geographic area than contemplated by the ITNs at issue does not satisfy the mandatory requirement in Section 6.4. Appendix N, which explains the scoring criteria and procedure of the ITNs further referenced the Statement of Assurances as one of the "FATAL CRITERIA" and emphasized in bold type that, if not met, the response could not be considered further. CHS’s failure to meet this mandatory requirement constitutes a material deviation from the ITNs. Needs Assessment Prior to the development of the ITNs at issue here, DCF asked CHS to provide a needs assessment and plan related to the need for services relating to foster care licensure, relicensure, recruitment, training and retention in District Two, Subdistrict 2B. Intervenor Devereux asserts that CHS should have been declared ineligible to submit proposals to the ITNs because of this needs assessment in which it participated. On May 26, 2000, DCF awarded a purchase order to CHS to conduct a needs assessment and develop a plan for recruitment and retention of foster parents. Initially, the purchase order was for $20,000.00. However, this purchase order was amended in August 2000 by reducing the scope of the agreement and reducing the amount to be paid to CHS to approximately $10,000.00. The amended purchase order still called for CHS to develop a needs assessment, but no longer called for the development of a plan. CHS did not develop a plan as contemplated by the original agreement nor was it paid for anything more than the needs assessment. The original purchase order between DCF and CHS did not reference procurement of a feasibility study. The weight of the evidence does not support Intervenor’s assertion that the plan contemplated by the original purchase order signed May 26, 2000, necessarily would have constituted a feasibility study. Moreover, the plan contemplated by the original purchase order was never created and CHS was never compensated for anything beyond the needs assessment. The needs assessment produced by CHS was attached to the ITN for District 2B. Thus, all prospective applicants were provided with the needs assessment. DCF held a prospective applicants conference on February 16, 2001. At this conference, Intervenor asked whether the provider who participated in the preparation of the needs assessment would be ineligible to submit a proposal in response to the ITNs. DCF replied that the provider who participated in the preparation of the needs assessment is not excluded from submitting a proposal and noted that the information that was gathered and the results were included in the ITNs. CHS completed, signed, and attached to its proposal to ITN#01-FSD2B/01 a Statement of No Involvement which assured that neither CHS nor any member of that firm had been awarded a contract by DCF on a noncompetitive basis to develop the ITN; perform a feasibility study concerning the scope of work contained in this ITN; or develop a program similar to what is contained in the ITN.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Children and Families enter a final order dismissing the bid protest filed by Children’s Home Society. DONE AND ENTERED this 25th day of July, 2001, 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 25th day of July, 2001.
Findings Of Fact The dwelling at 1622 Turner Street is a four-bedroom, three-bath residence on a corner lot 125 feet by 103 feet. The property is zoned RM-12 but is subject to a rezoning application to change the zoning to RM-8. The property is owned by William A. and Esther Toiga, who purchased the property in 1975 as a residence in which they raised 12 children. The Toigas intend to sell the property to Alternate Human Services, a non-profit organization, for use as a Level II Group Care Facility as a Youth Shelter licensed to provide counseling services for five children at one time. The building is adequate for more than the number for which a license will be requested. Alternate Human Services operates a similar facility in St. Petersburg, Florida. The proposed facility will provide counseling for runaway children and abused children between the ages of 10 and 17 years who are likely to be runaways. There will be no children classified as delinquent at the facility. The average stay of a child at the St. Petersburg facility is five days and a similar length of stay is anticipated at the proposed facility. The neighborhood in the vicinity of the proposed facility is composed largely of elderly people, some of whom live alone; and most of whom oppose the proposed Facility. These residents anticipate a traffic increase due to counselors, police, workers, etc., coming to and going from the facility; they are concerned about their safety with runaway children residing close to them; they are concerned about reduced property values resulting from the operation of the proposed facility; and they are concerned for their safety when walking to and from local stores and banks where there are no sidewalks and pedestrians have to walk in the street. In short, the Petitioner, and those testifying in opposition to the requested special exception, would much prefer the facility be located elsewhere than in their neighborhood. On the other hand, public officials, including police, juvenile specialists, a member of the Juvenile Welfare Board, and an HRS official in charge of licensing youth care facilities all testified that they have never experienced problems to the neighborhood as a result of such a facility as is here proposed, that no additional traffic is generated by such a facility, and that with the careful screening given the children admitted to such facility, no complaint against such a facility has been filed subsequent to tie licensing of the facility.
The Issue The issue in this proceeding is whether Petitioner Ryan Flint, the minor son of his personal representative and mother, Madeline Flint, should immediately receive developmental services or remain on a waiting list for such services until funding is available.
Findings Of Fact At the time of the hearing, Ryan Flint was three years old and has been identified as being on the "autism spectrum." Autism spectrum puts Ryan 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 Ryan Flint as a client because of his risk status. The parties stipulated that Ryan is eligible for services of the Developmental Services Program. Ryan became a client of Developmental Services on June 20, 2000. Despite the rejection language of the notice of denial letter, Ryan was placed on a waiting list and may ultimately be provided the requested services from Respondent. Currently, there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 1999. Ryan was receiving services through Children's Home Society. However, because he turned three years old he no longer qualifies for services under that program. Children's Home Society referred him to Developmental Services for evaluation. Mrs. Flint recalls that the "intake" for services was done May 11, 2000. It was Mrs. Flint's impression from the intake interview that Ryan would receive the requested services. This continued to be her impression when Ryan's service plan was written in June of 2000. Ryan currently receives some occupational therapy services through the local school board. However, these occupational services are limited to those which are only educationally necessary such as writing skills and do not extend to other non-educational skills such as running. A long and complex chain of events and circumstances led to the situation faced by Ryan Flint. Prior to the 1999 legislative session, the Department identified 23,361 Developmental Services clients who were either not getting services from the developmental services program or who were not receiving adequate services. The Department's Legislative Budget Request for fiscal year 1999-2000, included 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. 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 such programs must be prioritized. The Legislature directed the Department to prioritize these limited funds in proviso language of the 1999-2000 Appropriations Act: . . . 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 into Home and Community Based Waiver residential 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 2000 Appropriations Act contained proviso language identical to that found in the 1999 Appropriations Act referenced in paragraph 9. The Department implemented this legislative mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 1999, would receive services. All others would be put on a waiting list. Ryan Flint is not eligible for the Medicaid Waiver Program. The funds Mrs. Flint seeks come from another source, the Individual and Family Support appropriation. However, as a matter of policy, the Department has applied the prioritization described in paragraph 11, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. This policy was communicated to the Department's District Administrators and Developmental Services Program Administrators in a memorandum dated May 22, 2000. Utilizing this policy, the result in this case is the same as if Ryan had been on the Medicaid waiver. Jo Ann Braun, a Human Services Counselor with the Department, was not aware of the new policy until August of 2000. Thus, she could not have been aware of the new policy at the time she wrote Ryan's service plan which was in June 2000. According to Ms. Braun, as this policy was in the process of being disseminated through the Department, there may have been some clients who did not meet the crisis criteria and who entered the system after July 1, 1999, who received services. However, once the Department staff received and began implementing the policy, new clients were put on the waiting list and did not begin to receive services. 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 static, the new client base has increased by approximately 8,000 clients since July 1, 1999. Since the client base increased by 8,000 but the funding did not increase, the Department was faced with a decision as to how to fairly and consistently use the funding that was available. The Department determined that the only way it could provide funds to new clients would be by withholding services from existing clients who already received these services. However, it is not the policy of the Department to take money from someone who already is receiving services and give it to someone new. Faced with two choices, neither of which was desirable, the Department implemented a policy which requires that the allocation of Developmental Services moneys be made on a consistent basis. That is, the Department elected to apply these moneys in a manner consistent with the Medicaid Waiver appropriation. Moreover, many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Additionally, 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 in the same manner as the Medicaid Waiver moneys is not unreasonable or arbitrary. Applying the Department's policy, Ryan can only receive services if he is in crisis because he became a client after July 1, 1999. 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. The parties stipulated that Ryan Flint met none of the foregoing criteria. Consequently, the Department did 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 Ryan Flint on the waiting list of clients to be served by the Department's Developmental Services Program, and providing those services to him as soon as funds become available to do so. DONE AND ENTERED this 12th day of January, 2001, 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 12th day of January, 2001. COPIES FURNISHED: Madeline Flint 1327 Conservancy Drive Tallahassee, Florida 32312 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 in this case is whether Petitioner is entitled to have her home licensed and registered as a family day care home under the provision of Chapters 402 and 435, Florida Statutes.
Findings Of Fact On October 17, 2001, Petitioner, Betty Baumstark, submitted an application for a license to operate a family day care home at her residence. On November 29, 2001, the Department conducted an institutional staffing meeting to consider Petitioner's application. During the institutional staffing, the staff recommended that Petitioner's application for a license to operate a family day care home at her residence be denied. Although the institutional staffing committee made a recommendation regarding Petitioner's application, the Department's licensing specialist and supervisor made the final decision regarding the family day care home license. More than two months after the Department's institutional staffing, on February 8, 2002, the Department notified Petitioner by letter that her application to operate a family day care home was denied. The denial letter advised Petitioner that the family day care home license was denied based on the following grounds: (a) Abuse Report 2000-045218 indicated that Petitioner gave temporary custody of her son to friends on or about August 8, 1999, and that Petitioner's friends stated that they asked for the child because Petitioner "could not and would not care" for him; (b) Abuse Report 1999-095828 was closed with some indicators of inadequate supervision with caretaker present; (c) a domestic violence injunction was issued in 1997 against Petitioner's fiancé, Michael Canty; and (d) Petitioner had stated that she had experimented with drugs. The Department does not allege any other basis for denial of the license. Accordingly, it is found that, except for any requirements and minimum standards covered by those allegations, Petitioner met all the requirements and minimum standards necessary for licensure as a family day care home. With regard to the allegations in the 2000 Abuse Report, Petitioner did, in fact, give temporary custody of her son to Greg Davis in August 1999, while she was pregnant with her second child. The reason Petitioner gave Mr. Davis temporary custody was because her son acted out his hostility and became unmanageable. Concerned about her son, Petitioner actively sought assistance from various community resources to help her son, but was unsuccessful in doing so. After becoming aware of the situation with Petitioner's son, Mr. Davis, a friend of Petitioner and Michael Canty, offered to allow Petitioner’s son to live with him in an effort to improve the boy’s behavior and performance is school. Because Petitioner had been unsuccessful in obtaining any assistance to address her son's problems, she agreed to allow him to stay with Mr. Davis because she believed it was in her son’s best interests. In fact, during the time Petitioner’s son has lived with Mr. Davis, there has been a significant and positive improvement in the boy’s behavior and his grades in school. Petitioner's son is still living with Mr. Davis and has continued to do well in that setting. Given her son's progress and improvement, Petitioner has allowed him to remain with Mr. Davis. However, Petitioner has not abandoned her son and is still very involved in his life. Petitioner has a good relationship with her son and has maintained contact with him through regular visits and telephone conversations. Petitioner never stated that she could not and would not care for her son. The 1999 Abuse Report of inadequate supervision is based on a limited portion of the investigation which reported that Petitioner was called to pick up her son from a treatment facility and that she failed to pick up her child. This report makes no claim that anyone from the Department or the treatment facility ever spoke to Petitioner and told her to pick up her son from the treatment facility. Moreover, the credible testimony of Petitioner is that she was never contacted and told her that her son was being discharged from the facility and needed to be picked up. During the time period covered in the 1999 Abuse Report, as noted in that report, Petitioner’s son was in the custody of his father and stepmother and not in the custody of Petitioner. The domestic violence injunction referenced in the denial letter names Michael Canty as a party in that proceeding. Mr. Canty was Petitioner’s fiancé at the time of the hearing and, in the event the license was issued, Mr. Canty, who lived with Petitioner, was listed as the person who would be present at the family day care home to assist in Petitioner’s absence. As alleged in the denial letter, a domestic injunction was issued against Mr. Canty in 1997. However, there is no indication of the underlying factual basis for issuance of that injunction. Nothing in the domestic violence injunction, dated November 6, 1997, mentions that any violence had occurred or that the interests of the children in question had been harmed. Moreover, in a subsequently issued order in that case, it is noted that Mr. Canty's ex-fiancée, the person who initiated the injunction proceedings, withdrew her supporting affidavit. According to the credible testimony of Mr. Canty, his ex-fiancée obtained an injunction so that she could take the couple’s children to another city and not because he had committed an act of violence against her. During the years Mr. Canty and his ex-fiancée lived together, there were never any complaints filed with the police that indicate that Mr. Canty engaged in conduct that constitutes domestic violence nor were the police ever called to their home. The Department presented no evidence to the contrary. At some point during one of the investigations, there was an accusation that Petitioner used drugs. In response to a question from someone from "HRS" who talked to her, Petitioner told the person that she had experimented with drugs. Petitioner's experimentation with drugs was limited to smoking marijuana when she was fourteen years old, twelve or thirteen years prior to the hearing in this proceeding. Since that time, Petitioner has not experimented with or used illegal drugs. In 1999, Petitioner submitted to drug testing as a condition of employment with the YMCA and both of the tests were negative. The Department’s notification of denial of Petitioner’s application was more than ninety (90) days from the date the Department received Petitioner's application. The Department made no written request to Petitioner for any additional information concerning her application, but claims that the request for additional information was made by a Department employee during a conversation that employee had with Petitioner. However, the Department employee who allegedly requested that Petitioner provide additional information on the domestic violence injunction involving Mr. Canty did not testify at hearing. Moreover, the Department employees who testified at hearing had not requested any additional information from Petitioner and did not know whether any other Department employee had requested such information from Petitioner. Contrary to the Department's claim, the credible testimony of Petitioner was that the Department never requested or asked her to provide additional information to supplement her application. The Department failed to act on Petitioner’s application within ninety days of receiving it. This statutory time period was not extended because the Department did not request that Petitioner provide additional information regarding her application. Having failed to timely act on Petitioner’s application, the Department is required to grant a family day care home license to Petitioner. Even if the Department had timely acted on Petitioner's application, the substantive bases upon which it seeks to deny the family day care home have not been established in this record.
Recommendation Base on 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 a license to operate a family day care home. DONE AND ENTERED this 30th day of August, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 August, 2002. COPIES FURNISHED: David P. Rankin, Esquire 14502 North Dale Mabry Boulevard Suite 300 Tampa, Florida 33618 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the Respondent has sufficient general revenue funds to provide the Petitioner with services under the Respondent's Developmental Disabilities Program.
Findings Of Fact The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. As of August 23, 2002, Deneale is eligible for developmental services in the areas of support coordination; adult day training and transportation; non residential habilitation; residential placement; residential habilitation; adult dental; and behavioral services. The only lawful funding source from which these services could be provided to Deneale this year is the general revenue appropriation to DCFS. By letter dated September 25, 2002, DCFS advised Deneale that, with regard to those services for which he is eligible: [W]e regret to inform you, as a conclusion of law, that your request cannot be granted within the limits of the Department's appropriated general revenue funds, and Florida law prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.13(2)(c) and (d), F.S., and refer to the State Spending Plan as approved by the Legislature. Florida law does in fact prohibit the use of general revenue funds to provide developmental disability services to Deneale and to similarly situated clients when the general revenue budget is in a deficit condition. Section 216.311(1), Florida Statutes, provides in pertinent part as follows: No Agency or branch of state government shall contract to spend, or enter into an agreement to spend, any moneys in excess of the amount appropriated to such agency or branch, unless specifically authorized by law. . . . When the 2002-2003 fiscal year commenced on July 1, 2002, the general revenue budget was already in a $13 million deficit. The deficit had escalated to approximately $17 million by the time of the September 25, 2002, denial of services letter, and by the time of the final hearing had climbed to $23 million. The deficit exists because once clients begin receiving benefits, they may not lawfully be denied those benefits so long as they remain eligible for services. Moreover, once a client begins to receive services, federal law mandates that they be provided with any additional services for which they may become eligible, irrespective of whether or not general revenue funds are available. The cost of furnishing services to clients already being provided services for which they are eligibile has created a deficit which, in the absence of additional funding for DCFS's general revenue appropriation, will continue to grow. The deficit is also exacerbated by inflation, and by increases in the costs of services provided to individuals already receiving benefits. Deneale was placed on a wait list for Medicaid assistance for the services for which he is eligible, retroactive to his August 2002 eligibility date. As a practical matter, there is little hope that he will be reached in a timely manner. Caring for Deneale is a demanding task. He rises at 4:00 a.m. and requires constant attention from his mother and step-father, except for the hours he spends at an adult day care program for which his family pays from dwindling personal funds. The demands of caring for Deneale have taken a severe toll on his mother's health, as well as on her marriage of 27 years duration. Mr. Satter loves his family, but is seriously considering divorce because he can no longer cope with the burden of his stepson's care. Even at the cost of her marriage, Mrs. Satter is not willing to abandon her son, which she would have to do in order for the state to step in and relieve the family of the burden of providing Deneale with the full-time care and supervision he requires to survive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Deneale the developmental services for which he was determined eligible as of August 22, 2002. DONE AND ENTERED this 18th day of April, 2003, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Laurel Hopper, Esquire Department of Children and Family Services 337 North Fourth Street Fort Pierce, Florida 34950 FLORENCE SNYDER RIVAS 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 18th day of April, 2003. Jane and Edwin Satter 1774 Southwest Columbia Street Port St. Lucie, Florida 34987 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 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 a license to operate a family day care center should be granted.
Findings Of Fact DCF is the state agency responsible for, inter alia, the approval and monitoring of family day care homes. Petitioner Karen G. Flanders ("Flanders") has been working in the child care field for several years. On or about April 21, 2006, Flanders submitted a Family Day Care Home Registration form, which is an application seeking approval to operate a small day care home. As part of the application process, Flanders agreed to allow DCF to conduct a Central Abuse Hotline Record search to determine the existence of any complaints or actions against her. The consent form Flanders signed allowing the search included a provision that the department would see any investigation resulting in "verified indicators." During its processing of the application, DCF determined the existence of an investigative report concerning Flanders. The incident in the report allegedly occurred on September 1, 2005. Flanders was alleged to have grabbed, slapped, and punched a child, C.S., while working as a day care worker for Kids Together day care facility. Flanders was immediately terminated from employment by her employer. The Central Abuse Hotline was contacted immediately. By her own admission, Flanders was the caller. Pursuant to its duty, DCF conducted an investigation the day after the alleged incident. The investigation found there were "some indicators" of excessive corporal punishment. The term "some indicators" advises DCF that some adverse incident has happened, but it could have been a one-time issue that may never happen again. In this case, the primary concern of DCF was that the alleged incident occurred in a child care facility. Flanders had an excessive history of prior reported incidents, which was taken into consideration by the investigators. Based on those findings, the safety of the child victim became a concern. DCF found, however, that Flanders' termination from employment was sufficient to alleviate further concern for the child. Flanders has been involved in child care for many years and considers it her occupation. Her pending application to operate a small child care facility is consistent with her work history. However, she has had an adverse incident resulting in some indicators of abusive behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying the application by Karen Flanders to operate a day care facility. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 22nd day of September, 2006. COPIES FURNISHED: Karen Flanders 14924 Lady Victoria Boulevard Orlando, Florida 32826 Stacy N. Robinson Pierce, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1114 Orlando, Florida 32801 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
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
