The Issue The issues in this case are whether Respondent: (a) was convicted of a crime which directly relates to the practice of physical therapy; (b) failed to timely report a criminal conviction to the Board of Physical Therapy Practice; and (c) was terminated from the Medicaid program, as Petitioner has alleged; and, if one or more of these allegations are established, whether the Board should impose discipline on Respondent's physical therapy license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Marly Delis Cueto ("Cueto"), P.T., was licensed as a physical therapist in the state of Florida. Petitioner Department of Health ("Department") has regulatory jurisdiction over licensed physical therapists such as Cueto. In particular, the Department is authorized to file and prosecute an administrative complaint against a physical therapist, as it has done in this instance, when a panel of the Board of Physical Therapy Practice ("Board") has found that probable cause exists to suspect that the therapist has committed a disciplinable offense. Exercising its prosecutorial authority, the Department has charged Cueto with three such offenses, namely, being convicted of a crime which directly relates to the practice of physical therapy; failing to report this conviction to the Board; and being terminated from the state Medicaid program. It is undisputed that, on November 5, 2008, in a case styled State of Florida v. Cueto, No. 08-16209CF10A, the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, accepted Cueto's plea of nolo contendere to the single count of grand theft (a third-degree felony) with which she had been charged; withheld adjudication of guilt; and sentenced her to a term of two years' probation with special conditions. The conditions were that Cueto pay the Agency for Health Care Administration ("AHCA") $28,000 as restitution to the Medicaid program, from which she had stolen funds; and that she relinquish her Medicare and Medicaid provider numbers while on probation. Cueto did not explain the reasons for, and circumstances surrounding, her plea of nolo contendere. There is, at bottom, no persuasive evidence in the record upon which to base any findings of an exculpatory nature concerning the underlying criminal charge for which Cueto was sentenced. Where, as here, there is insufficient proof of objectively reasonable grounds for entering a plea of no contest, which are consistent with innocence, the undersigned presumes that the licensee entered the plea because of a guilty conscience or in surrender to overwhelming odds of conviction. Thus, it is determined that Cueto's plea of nolo contendere constituted a conviction. The conduct which gave rise to Cueto's conviction is relevant only for the limited purpose of determining whether the crime directly relates to the practice of physical therapy. In this regard, the undersigned finds that during the period from January 1, 2007 to April 22, 2008, Cueto——who, as a licensed physical therapist, was an enrolled Medicaid provider——knowingly and intentionally submitted multiple claims to the Florida Medicaid program for physical therapy services that she had not actually rendered, on which false claims she was paid at least $28,000 to which she was not entitled. It is determined that Cueto was convicted of a crime which directly relates to the practice of physical therapy. Cueto did not report to the Board that fact that she had pleaded nolo contendere to a crime, as she was legally required to do within 30 days after entering the plea. On September 30, 2009, AHCA entered a Final Order terminating Cueto from participation as a provider in the Florida Medicaid program. AHCA imposed this sanction against Cueto pursuant to Florida Administrative Code Rule 59G-9.070(8) (2008)——as it was authorized to do under section 409.913(13), Florida Statutes (2009)——because she had been convicted of grand theft on November 5, 2008. As of the final hearing in this case, Cueto had not been reenrolled as a Medicaid provider.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice enter a final order finding Marly Delis Cueto guilty of the offense described in section 486.125(1)(c), Florida Statutes, i.e., being convicted of a crime that directly relates to the practice of physical therapy; guilty of the offense defined in section 456.072(1)(x), namely failing to timely report a criminal conviction to the Board; and guilty of the offense defined in section 486.125(1)(k), in consequence of having been terminated from the Medicaid program, which latter constitutes a disciplinable offense under section 456.072(1)(kk). It is further RECOMMENDED that the Board impose an administrative fine of $14,000 and suspend Cueto's physical therapy license for two years, to be followed by two years of probation on such reasonable terms and conditions as the Board establishes, which may include the requirement that Cueto pay in full the $28,000 she has been ordered to remit to AHCA as restitution of the stolen funds. DONE AND ENTERED this 19th day of July, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 July, 2011.
The Issue The issue in this proceeding is whether Petitioner's application for licensure as a child care facility should be granted.
Findings Of Fact Petitioner, God's Little Blessings, applied for licensure as a child care facility on March 23, 2015. The application was completed and submitted by Leslie Fudge, the owner and proposed operator of the facility. The proposed director was Adrienne Wimas (spelling uncertain). After review of the application, the Department denied Petitioner a child care facility license on May 1, 2015. The sole reason for the denial was contained in the Department's denial letter dated May 1, 2015. The letter stated: This letter will serve to advise you that your Application . . . is hereby denied based on review of your background screening, including the Florida Central Abuse Hotline Record Search. No other reason for denial was stated in the Department's letter. While not stating the specific facts regarding the background screening and abuse record search, the evidence demonstrated that the denial was based on one confirmed report of neglect (Abuse Report 2003-031849-01) against Ms. Fudge for inadequate supervision of resident R.H., and medical neglect of residents R.G. and J.D. Both incidents occurred at about the same time on or about March 5, 2003, while Ms. Fudge was employed at Tallahassee Development Center (Center). The Center provided residential and direct care to developmentally disabled residents at its facility. At the time, Ms. Fudge was employed as care staff responsible for providing direct one-to-one care to R.H. She was not assigned to provide care to R.G. Other than Ms. Fudge, no witness with personal knowledge of these incidents testified at the hearing. Consequently, many of the statements contained in the 2003 abuse report remain hearsay which was not corroborated by any competent substantial evidence. Additionally, the age of the report, confusing allegations and lack of factual basis for its findings of inadequate supervision or medical neglect cause the abuse report to be unreliable and untrustworthy as evidence. As such, except as found below, the report by itself cannot form a basis for denial of Petitioner's application. Ms. Fudge was the only person who testified at the hearing with personal knowledge about the events of March 5, 2003. She testified, and such testimony is accepted, that on or around March 5, 2003, she was not a shift supervisor, but was assigned as a direct care aide with "one-to-one" supervision of R.H. The testimonial evidence from Ms. Fudge and other employees of the Center during 2003 demonstrated that Tallahassee Developmental Center employees were trained that one-to-one supervision meant that "the person had always to be watched" and "you could never leave [the person] alone." There was no credible evidence that the person could not be alone in the restroom, that the staff assigned to watch the person had to be within arm's length of the resident, or that such observation was not varied according to the behavior plan for an individual resident. Further, the testimonial evidence showed that staff and Ms. Fudge knew R.H. would run away usually to hide in a particular office, but occasionally with the police being called if R.H. were to leave the building and could not be found. The evidence did not demonstrate that R.H. behaviorally was aggressive or dangerous to others, but only that he would run away and hide. Finally, the testimonial evidence showed that the facility was in the process of trying to wean R.H. off of one-to-one supervision by implementing a plan of moving away from him and permitting him times of less supervision. On March 5, 2003, the testimonial evidence demonstrated that Ms. Fudge, R.H., and other residents were gathered in the living room of the house where they lived. The phone in the adjoining office rang and Ms. Fudge answered it. While on the phone she could observe R.H. through the window between the rooms. At some point, R.H. was sent to go to the restroom. It was unclear who sent him. After finishing in the restroom, he did not return to the living room, but "left out of the bathroom" to another office, locked the door and hid behind the desk. Ms. Fudge could see him in the office and called a nurse to bring the key so that the office could be unlocked. At the time, R.H. was not in danger and there was no evidence that demonstrated he was in danger. There was some evidence that another staff person mistakenly may have believed that R.H. had left the building. However, the better evidence showed that Ms. Fudge knew where R.H. was, could see R.H. in the room in which he was locked, and that he was not in danger at the time. Given R.H.'s behavior plan, none of these facts establish neglect by Ms. Fudge in the supervision of R.H. There was no credible, non-hearsay evidence presented at hearing as to the abuse report's allegations regarding resident R.G. or J.D. As such, the Department's evidence consisted only of an old unreliable abuse report consisting of uncorroborated hearsay about an incident involving R.G. and perhaps J.D. and the testimony of the investigator who had no personal knowledge of the facts regarding the incident or the supervisory policies of the Center. Given these facts, Respondent has failed to demonstrate that Ms. Fudge neglected, either in supervision or medically, residents who were in her care. In fact, the evidence showed that Petitioner has been caring for and/or supervising people for many years and has the character and capacity to continue to do so. Since the unproven abuse report was the only basis on which the Department based its decision to deny Petitioner's application, there was nothing in the record to support its determination that Petitioner lacked moral character or the ability to safely operate a child care facility. Therefore, Petitioner's application for such licensure should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner's application for licensure as a child care facility is granted. DONE AND ENTERED this 2nd day of November, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2015. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Building 2, Suite 204 Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 (eServed) Leslie Fudge God's Little Blessings Apartment F-8 216 Dixie Drive Tallahassee, Florida 32304 Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308-5333 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families 1317 Winewood Boulevard, Building 2, Room 204 Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families 1317 Winewood Boulevard, Building 1, Room 202 Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Respondent's employee hit or forcefully grabbed children in care, as alleged in the Administrative Complaint; and, if so, whether Petitioner should impose a fine of $400.00 against Respondent, a licensed child care facility, for the commission, by an employee, of an act that meets the statutory definition of child abuse.
Findings Of Fact At all relevant times, Respondent Lincoln Marti Community Agency, Inc., d/b/a Lincoln Marti ("LMCA"), held a Certificate of License, numbered C11MD1532, which authorized LMCA to operate a child care facility (the "School") in Miami Beach, Florida, for the period from June 7, 2016, through December 4, 2016. As a licensed child care facility, LMCA falls under the regulatory jurisdiction of Petitioner Department of Children and Families ("DCF"). On August 25, 2016, Laura Pantano arrived at the School in the afternoon to pick up her child. While waiting in the reception area, Ms. Pantano noticed the real-time video feeds from the surveillance cameras in the classrooms. These live videos were displayed on multiple monitors in plain view. Ms. Pantano focused her attention on the classroom of Clara Gonzalez-Quintero. Although her child was not in Ms. Quintero's class, Ms. Pantano harbored suspicions that Ms. Quintero had been hitting children. Sure enough, right on cue, Ms. Quintero appeared to forcefully grab and hit a child. It is not disputed in this proceeding that Ms. Quintero used corporal discipline on two children, D.D. and S.M, at the very moment Ms. Pantano happened to be watching the closed-circuit television for just such an occurrence. That said, no one having personal knowledge of the incident in question testified at hearing. Ms. Pantano testified, but she was not actually an eyewitness, for she merely observed live surveillance video on a display device, not the incident itself. Naturally, the surveillance video is in evidence, allowing the undersigned (and anyone else) to see exactly what Ms. Pantano saw that day.1/ Yet, while the video evidence is both captivating and seemingly unbiased, it is a mistake to assume that the assertive narrative of this (or any) video is objective and unambiguous, for rarely is that true, if ever. Viewers of filmic evidence, including the undersigned, do not somehow become eyewitnesses to a genuine occurrence; we perceive only the video, and the video merely represents, imperfectly, the real events captured on camera. Of necessity, each viewer——such as Ms. Pantano, who as stated above was predisposed to believe the worst about Ms. Quintero——projects onto the images his or her own interpretation of the scenes depicted. As the fact-finder, the undersigned must determine the significance, meaning, and story of the images preserved in the video based upon a critical review of the film in conjunction with a careful consideration of all the available evidence. Had the fact been disputed, the undersigned would have struggled with the question of whether Ms. Quintero "struck" D.D.2/ or merely made incidental nonviolent contact of the sort parents and teachers routinely use when redirecting a disobedient child. One significant limitation of the video is that it lacks sound. During the crucial moments, Ms. Quintero appears to be reprimanding D.D., who was three years old at the time, but if so, the video provides no proof of the reasons, for we cannot hear what she is saying. At the same time, however, it is reasonable to assume that Ms. Quintero had some bona fide basis for approaching D.D., for no evidence to the contrary was offered. On the video, Ms. Quintero appears to pat D.D. on the shoulder while addressing the child. Without audio, however, this action is ambiguous. Is she punishing, exhorting, or encouraging the child? Hard to tell. D.D. seems to put his hands over his ears. Fear, protective response, or defiance? Take your pick. Then — did she just slap him? It happens so fast, the picture is not clear, and the angle of the shot less than ideal. Maybe. Something happened, to be sure, but different viewers will form different conclusions about what the video depicts. Because LMCA concedes the point, and because the filmic evidence, though ambiguous, justifies such acquiescence, the undersigned finds that Ms. Quintero administered a form of physical punishment, which violated both the law3/ and LMCA's written policy on discipline. But the undersigned does not find that the corporal discipline at issue evinced malice or cruelty. The record, in short, convinces the undersigned to find that physical contact occurred, but not violent contact. Believing that she had seen a teacher repeatedly slap a child, Ms. Pantano rushed upstairs to confront Ms. Quintero in the classroom, while she simultaneously called the police on her cellphone. When she arrived in the classroom, excited and crying, Ms. Pantano screamed accusations at the teacher, who denied any wrongdoing. The commotion drew the School's director, Yanet Perez-Cruz, to the room, where she heard Ms. Pantano, in front of the children, uttering a conditional threat to kill Ms. Quintero, the condition being Ms. Pantano's possession of a knife, which fortunately for everyone involved was not met. Within a short time, the police arrived and immediately set to work investigating the incident. Neither D.D. nor any of the other children were found to have visible physical injuries attributable to Ms. Quintero. No evidence of such was presented at hearing, and the undersigned finds that Ms. Quintero did not cause any physical harm to D.D., S.M., or any child at the School on the day in question. LMCA fired Ms. Quintero the next day, not for hurting a child, but for violating its policy on corporal punishment. As for possible mental injury, D.D. was anxious, did not sleep quite as well, and had some instances of bed-wetting after the occurrence with Ms. Quintero, according to his mother. These symptoms, however, reflected at most a marginal aggravation of preexisting conditions, and within a few weeks or so D.D. had returned to his baseline. In addition, D.D. had been receiving speech therapy, for about ten months before the incident, to treat a stutter. In the months following the occurrence at issue, after which he had been abruptly removed from the School and enrolled in another day care facility, D.D. made rapid improvement in his speech, to the point that by the time of the hearing, D.D.'s stutter was nearly gone. The record lacks convincing evidence that D.D.'s intellectual or psychological capacity was injured by Ms. Quintero, as there is no persuasive proof of any discernible and substantial impairment of D.D.'s ability to function within normal limits. To the contrary, the evidence shows that, as of the hearing, D.D. is functioning within the normal ranges of intellectual and psychological performance and not displaying any signs of even mild, much less severe, mental or emotional impairment. With regard to S.M., there is likewise no convincing evidence of any significant mental injury. Similar to D.D., S.M. was observed, by her parent, to be somewhat more anxious than usual following the incident with Ms. Quintero, but this general anxiety resolved before long and was not causing S.M. any problems at the time of the hearing. Other evidence suggests, credibly, that S.M. is (as of the hearing) a happy, intelligent, and normal child evincing no discernable impairments in intellectual or psychological functioning. In sum, neither D.D. nor S.M. suffered any physical harm at the hands of Ms. Quintero, and although there is some (but not clear and convincing) evidence that one or both children might have experienced mild emotional or psychological distress——as manifested by, e.g., bed-wetting or anxiety——in the immediate aftermath of the events at the School on August 25, 2016, it is clear that such symptoms did not persist or substantially impair either child, even briefly, and that within a few months, if not sooner, both D.D. and S.M. were back to normal. At hearing, LMAC presented Michael J. DiTomasso, Ph.D., as an expert witness. Dr. DiTomasso is a clinical psychologist who specializes in forensic psychology and, to the point, child abuse. Indeed, Dr. DiTomasso has testified frequently as an expert for DCF in dependency trials involving child abuse and child neglect. Dr. DiTomasso provided the following credible and convincing overview of the current dispute: Okay. So we have a video recording of some unpleasant behavior on the part of a teacher. And I reviewed this. I looked at it. I actually watched it a couple of times. I see that she hit the kid, she shook the child. She was unpleasant with the children. And I understand that this behavior is prohibited by the school. . . . But does the -- does what we see in this tape rise to something monstrous that we would think is going to cause significant impairment in a child's psychological life somewhere down the line? Maybe the first question is: Did it cause -- does it cause significant physical damage? But everyone says no. The police say no, the mothers say no, the children -- that went to a doctor there's no medical findings. So by every measure, DCF says no. By every measure everyone who considered actual physical damage said no. So, no, we're not at the psychological damage. What we see in these tapes, it's unpleasant, of course. But, I mean, is there anyone, really, who never saw behavior like this before in their lives? In their own family, in their own lives, in a Target. In a Target store, in the K-Mart, we see this kind of behavior. We don't like it, but we're not -- we're not looking at it as catastrophic. We're looking at it as maybe unpleasant to see. And the parents are maybe looking at it as appropriate because parents in America believe in physical discipline of their children, corporal punishment of the children -- of children is accepted by most -- most parents in America and even more here in Florida, in the south. * * * If the corporal punishment causes broken bones or fractures or bruises or welts, oh, we're talking a different name. But that's not what happened for these kids. This was ordinary run-of-the-mill corporal punishment in a place where it shouldn't have happened. But the fact that it happened in a place where it shouldn't have happened doesn't make it a traumatic event that leads to psychological harm down the line. Tr. 351-54. The undersigned agrees with the foregoing description and explanation of the video evidence. The bottom line, according to Dr. DiTomasso, is that no "meaningful disruption of a child's ability to function and enjoy his life" happened, "it's not going to happen, it shouldn't be expected to ever happen based only on the event [at the School on August 25, 2016,] and the follow-up seems to show that it hasn't." Tr. 414. The undersigned accepts Dr. DiTommasso's opinion on cause-and-effect and determines as a matter of ultimate fact that neither of the subject children suffered a "mental injury" as defined in section 39.01(42), Florida Statutes, as a result of the incident in question.4/ Ultimate Factual Determinations The undersigned determines that LMCA's employee, Ms. Quintero, while caring for children at the School on August 25, 2016, did not commit an act or omission that meets the definition of child abuse or neglect provided in chapter 39.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order exonerating Lincoln Marti Community Agency, Inc., d/b/a Lincoln Marti, from the accusation of Child Abuse or Neglect as charged in the Administrative Complaint. DONE AND ENTERED this 4th day of April, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 April, 2017.
The Issue The issue in the case is whether the Petitioner's application for licensure by endorsement as a physical therapist should be approved.
Findings Of Fact The Petitioner is an applicant for licensure as a physical therapist in the State of Florida. The Petitioner attended German educational institutions and graduated in 1994 from a "gymnasium," which appears to be the equivalent of a secondary school unit in the United States. After graduating from the gymnasium, the Petitioner then attended the physical therapy training program at the University of Nurenberg in Erlangen, Germany, from where she graduated in 1997. In 1998, the Petitioner applied for licensure as a physical therapist in the State of Colorado where she took and passed the National Physical Therapy Examination (NPTE) offered by the Federation of State Boards of Physical Therapy (FSBPT). The FSBPT's NPTE is the same examination used by the Respondent as the Florida licensing examination. The State of Colorado granted a license in 1998 to the Petitioner, presumably determining that, in addition to passing the exam, the Petitioner's education met the requirements of Colorado law. At all times material to this case, the Petitioner remained licensed as a physical therapist by the State of Colorado, but never practiced physical therapy in Colorado. The Petitioner moved to Florida in 2006 and began to inquire as to becoming licensed "by endorsement" as a physical therapist in the state. She eventually filed the application at issue in this proceeding. The Respondent has denied the Petitioner's application for licensure on the grounds that the Petitioner has failed to demonstrate that she has met Florida's minimum education requirements and to demonstrate that the licensure standards in Colorado are the equivalent of those in Florida. The evidence establishes that by operation of Florida Administrative Code Rule 64B17-3.003, the licensure standards between Colorado and Florida are equivalent. The evidence fails to establish that the Petitioner has met Florida's minimum education requirements. There was no credible evidence presented that the Petitioner's German education met the minimum education requirements for licensure as a physical therapist within the State of Florida. There was no evidence presented that would permit any determination or comparison of the quality of the Petitioner's German education and experience with that available from an accredited educational unit within Florida or the United States. The Respondent apparently relies on evaluations performed by credentialing agencies that review materials supplied by applicants and render determinations of educational equivalency. The Petitioner has apparently been unable to have her German education and experience evaluated by any credentialing agency, allegedly because of the nature of available records. The Petitioner acknowledged that no written comparative evaluation of her German education and experience has been completed. None have been supplied to the Respondent, and there was no evidence of any educational credentialing determination offered into the record of the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice issue a final order denying the Petitioner's application for licensure. DONE AND ENTERED this 22nd day of February, 2008, 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 22nd day of February, 2008. COPIES FURNISHED: Richard Linquanti, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Reginald D. Dixon, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Susie K. Love, Executive Director Board of Physical Therapy Practice 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue Whether CAP Head Start – Gibson Center (“Respondent”) committed the violations alleged in the Administrative Complaint issued by the Department of Children and Families (“the Department”) on February 12, 2018.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding: The Parties and Relevant Provisions of Law The Department is the state agency responsible for licensing child care facilities in Florida and ensuring that those facilities comply with requirements imposed through the Florida Statutes and the Florida Administrative Code. In order to fulfill that duty, the Department conducts routine and complaint inspections. Every facility receives three routine inspections a year. If the Department learns that a facility may have committed a violation, then the Department conducts a complaint inspection within 48 hours of receiving the information. The Department classifies violations as Class I, Class II, or Class III. Rule 65C-22.010(1)(d)1., defines Class I violations as those that “are the most serious in nature, pose an imminent threat to a child including abuse or neglect and which could or [do] result in death or serious harm to the health, safety or well-being of a child.” Rule 65C-22.010(1)(d)2., states that Class II violations “are less serious in nature than Class I violations, and could be anticipated to pose a threat to the health, safety or well-being of a child, although the threat is not imminent.” Rule 65C-22.010(1)(d)3. provides that Class III violations “are less serious in nature than either Class I or Class II violations, and pose a low potential for harm to children.” If a facility commits three or more Class I violations within a two-year period, Rule 65C-22.010(2)(e)1.b., mandates that the Department shall suspend, deny or revoke the facility’s license. Section 39.201(1)(a), Florida Statutes, requires that [a]ny person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to [the Department] in the manner provided in subsection (2). Section 39.201(2)(a), requires that [e]ach report of known or suspected child abuse, abandonment, or neglect by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare as defined in this chapter, except those solely under s. 827.04(3), and each report that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall be made immediately to [the Department]’s central abuse hotline. Rule 65C-22.001(11)(b) specifies that “[f]ailure to perform the duties of a mandatory reporter pursuant to Section 39.201, F.S., constitutes a violation of the standards in Sections 402.301-.319, F.S.” Respondent is a federally funded, nonprofit agency with its corporate headquarters in Pensacola, Florida. Respondent has 190 employees and four core programs, the largest of which is a Head Start program serving 935 children in Escambia County. The Gibson Center in Pensacola is a Florida-licensed childcare facility and part of Respondent’s Head Start program. The Gibson Center cares for 190 children every school day and transports 160 children to and from its facility on buses. The September 20, 2017 Incident On September 20, 2017, a bus dropped off children at the Gibson Center, but the bus driver and her aide failed to conduct a complete visual sweep3/ to ensure that all the children had left the bus. As a result, no one realized that a five- year-old child, J.H., was still on the bus until the children arrived at their classroom. The bus driver briefly left the bus to retrieve a stapler from her car, drove to the “bus pen,” and began completing paperwork. After the aide called the driver to inquire if J.H. was still on the bus, the driver found J.H. asleep on a seat and unbuckled. J.H. was unattended on the bus for approximately five minutes. The bus driver and aide disclosed the incident to their supervisors. The September 28, 2017 Incident On September 28, 2017, Shenevia Jones, a bus driver’s aide, conducted a visual sweep to ensure that all of the children were off a bus but failed to notice that a four-year- old child, M.J., was hiding under a seat. M.J. remained on the bus while it took 20 minutes to complete an additional route. Upon the bus’s return to the Gibson Center, Ms. Jones discovered the child after he sprang from under a seat and said “ta dah.” Respondent’s Actions Following the Incidents Respondent’s upper management met on September 21, 2017, to discuss the September 20th incident and decided that a review of the loading and unloading procedures would be conducted with drivers and aides on September 22, 2017. In addition, the Executive Director would discuss the incident with all employees on September 23, 2017. After the September 28th incident, Respondent’s management decided that a more robust response was necessary. As a result, Ms. Jones was suspended for three days without pay, and Respondent rewrote its procedures for loading and unloading buses.4/ According to Respondent, these new procedures were “site specific” in that larger facilities such as the Gibson Center had different procedures than smaller ones.5/ Deborah Nagle, Respondent’s Director of Compliance, Governance, and Head Start, reported both incidents to the regional Health and Human Services (“HHS”) Office in Atlanta, Georgia via an October 6, 2017, e-mail. As a federally-funded, non-profit agency, Respondent receives funding from HHS. HHS issued a report on February 15, 2018, finding that Respondent violated a federal regulation prohibiting a child care program from leaving a child behind in a classroom or on a vehicle. Ms. Nagle and Doug Brown, Respondent’s Executive Director, discussed whether the incidents amounted to “neglect” within the meaning of Chapter 39 and determined they were not reportable events. In October of 2017, the Department issued a new handbook to child care facilities, and this handbook contained a section about reporting neglect. After reviewing the aforementioned section, Ms. Nagle sent an e-mail to Roger Thompson, the Department’s Supervisor of Child Care Regulation in Escambia, Santa Rosa, Okaloosa and Walton Counties, on Friday, December 8, 2017,6/ describing the incidents: I have attached 2 incidents we had with children on the bus along with the revised procedure. We had reported this to our Regional office and have worked with our Training and Technical Assistance to complete a corrective action plan and put enhanced monitoring in place. All staff will be trained on Jan. 2 when we return from the Christmas break on the revised procedures. I felt it necessary to send this information to you after reading the new Field manual which lists items we must have in policy on reporting on page 27. I will be out of the office until Dec 15th, but will be able to retrieve e-mail while traveling. Mr. Thompson responded on Monday, December 11, 2017, with the following message: Was the Hotline called on the incident? Also, that needs to be addressed in the [corrective action plan]. Anything like this needs to be reported immediately to the Hotline. Not reporting can resort in an additional Class I violation. Ms. Nagle responded 13 minutes later by stating the incidents were not reported. Just over an hour later, Ms. Nagle transmitted the following inquiry: I have a question. Is what happened considered an abuse report? To my knowledge there has not been any specifics on what is reported other [than] injury to a child or a report from a parent or other staff member that there was abuse []. We did not consider these as reportable, but due to the new field guide thought it necessary to inform you. So far every call we have made to the hotline when it was deemed an abuse situation was only taken as information. Mr. Thompson responded five minutes later with the following: Remember . . . it isn’t always ABUSE. It is anything that possibly fits Abuse and/or Neglect. This was NEGLECT. If you contact Paula Doty at the Gulf Coast Kids House, she will do a great training for free at your location. She goes into the details. It would be great for your staff, in-service training credit, and it may head some of this stuff off at the pass. The Department’s Investigation Mr. Thompson initiated a complaint investigation, and two Department employees, Casey Gully and Shacondra Primm, inspected the Gibson Center on December 13, 2017. During that inspection, one of Respondent’s teachers showed Ms. Primm a hole in the floor of a modular classroom unit. Approximately one week prior to the inspection, the teacher’s foot had fallen through the floor, resulting in a 6 inch by 12 inch hole about 3 to 4 feet from the classroom’s entrance. At the time of the inspection, a trashcan and caution tape covered the hole. Respondent was in the process of collecting bids to have the hole fixed over the Christmas break.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families issue a Final Order imposing a $1,000.00 fine on Respondent. DONE AND ENTERED this 10th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2018.
The Issue Whether the Department of Children and Family Services (Department) properly denied the renewal of Clay and Diana Merritt's family foster home license, No. 019917.
Findings Of Fact The Department of Children and Family Services is the administrative agency responsible for the licensing of foster homes under the laws of the State of Florida. The Department is responsible for investigating allegations of child abuse against citizens of the State of Florida. The Respondents, Clay Merritt and Diana Merritt were the holders of a foster care home license which was issued by the Department on January 27, 1997. That license was renewed in 1998 and provisionally renewed in 1999. During the period of time that the Respondents were a legally licensed foster home, three different children resided in their home, Amy C., Bo T. and Joe H. On January 27, 1999, an argument ensued between Respondents and Amy C. over Amy C.'s returning late from a date. During that argument, Amy stated that she would report the Merritts for sexual abuse if they did not relax their restrictions upon her. When the Respondents refused to relax their restrictions, Amy C. requested that she be removed from the home. The Department was called and Amy C. was removed from the foster home, and placed in a facility for run-a-way children in Gainesville, Florida. Very soon thereafter, Amy C. alleged that she had been sexually abused by the Respondent, Clay Merritt, on three occasions, all of which included sexual intercourse. The Respondent, Clay Merritt, denies the allegations in their entirety. Amy C. had been a prior victim of sexual abuse by her father, her brother, and her half brother. Amy C.'s father and her brother were convicted of sexually abusing her, and her father is still incarcerated. Amy C. testified at her father's criminal trial. Because of her prior abuse, Amy C. suffers from a number of mental disorders, to include post-traumatic stress syndrome, dysthymia, and attachment disorder. The child further evidences self-destructive behavior and vindictive behaviors against others. Susan Pierce counseled Amy C. for approximately nine months from early 1998 until the end of January of 1999. During that period of time, she developed a close therapeutic relationship with the child, and believed that the child was comfortable with her as a therapist. During that nine-month time period, the child never made any allegations of sexual abuse against the Respondent, Clay Merritt, although she discussed other instances of abuse with the counselor unrelated to the Respondents. Ms. Pierce felt Amy C. would have revealed abuse by Clay Merritt had such abuse occurred. The child lied on numerous occasions to her counselor and the Respondents. The child became increasingly interested in psychopathic murder, which was indicative of the disorders that were suffered by the child in Pierce's opinion. The child stated that she had been sexually abused by Clay Merritt in July, August, and September of 1997 and had a miscarriage in November or December of 1997. However, her diaries indicate that she had menstrual periods on October 25th and November 14th, 1997, thus precluding the possibility of pregnancy. The child further testified that the miscarriage was one of the most painful things she had ever encountered. The child stated under oath that she had not reported the miscarriage because "she did not want to hurt Diana's feelings." She stated to investigators that she did not report the abuse because she did not want to be taken out of the foster home. Throughout the period of time that Amy C. resided with the Respondents, she was a discipline problem. In June of 1998, Respondent, Diana Merritt, discovered Amy C. at home one afternoon with a boy with whom she had just completed having sexual intercourse. Diana Merritt took Amy C. to medical professionals for pregnancy testing and tests for sexually transmitted diseases. Diana Merritt counseled with Amy C. about the dangers of her conduct, and the Merritts maintained a closer watch upon the child. Amy C. refused to comply with the requests of the Respondents to restrict her sexual activities which led to numerous disagreements and arguments with Amy C. These arguments culminated in the argument of January 27, 1999, which resulted in Amy C.'s removal from the home. Amy C. was asked to take a voice stress test by the Sheriff's department, but she declined. The statements of Amy C. are contradictory with regard to specific facts. She gave two different dates for her alleged miscarriage: June and November 1997. She described severe physical trauma associated with the alleged miscarriage, but did not seek or receive medical assistance. She was subsequently examined and tested for sexually transmitted diseases as the result of an unrelated, consensual sexual relationship, and no findings were made indicating a prior, terminated pregnancy. Amy C.'s diaries are vague and unrevealing, except for the reporting the commencement of a menstrual period in October and in November. This is inconsistent with a reported miscarriage in December 1997. Because of the Amy C.'s prior abuse, resort to physical examination, or her description of details about the encounter is not helpful in resolving the her credibility. The allegations by Amy C. of sexual abuse by Clay Merritt are unsupported by any tangible evidence. Amy C.'s reputation for truth and veracity is not good. Her allegations are not supported by her diaries. Her allegations were made almost one and one-half years after the alleged events, and immediately after a fight with the Merritts. The Department's investigation revealed that the Merritts had spanked one of the other children on occasion in contravention of a Department policy banning corporal punishment. The Merritts did not deny this allegation; however, there was no evidence that these spankings were abusive. The spanking was a violation of agency policy; however, testimony was received that this type of conduct was generally not a basis for revoking a license by itself. The Respondent, Diana Merritt, is a licensed practical nurse who is employed by the Putnam County health Department. She has no prior criminal record, no prior child abuse record, nor has she had any legal difficulties in her life. The Respondent, Clay Merritt, is employed as a paramedic and firefighter. He is certified as a paramedic. He has never been arrested nor had any child abuse allegations filed against him in his entire life. The guardian ad litem for Bo T. testified that Bo T. was suffering as the result of his removal from the Respondents' home. Bo T. was the child who was spanked. His guardian ad litem favored placing the child back in the Merritt's home and care.
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 renewing the foster home license No. 19917 of the Respondents. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 3rd day of March, 2000. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Richard J. D'Amico, Esquire 619 North Grandview Avenue Daytona Beach, Florida 32118 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent committed a Class I violation and should have a $500.00 administrative fine imposed, for the reasons given in the Administrative Complaint dated August 23, 2018.1/
Findings Of Fact The Department is the state agency responsible for licensing and regulating child care facilities. Respondent holds license number C12MA0082 issued pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Chapter 65C-22. It authorizes Respondent to operate a child care facility at 3815 26th Street West, Bradenton, Florida. The owner of the facility is Carina Piovera. First licensed in 1997, the facility provides child care for children ranging from the age of one to five. It employs five teachers and has a capacity of 35 children. Besides routine inspections by the Department every three months, for the last ten years, the facility has been inspected periodically by the Early Learning Coalition, which provides the facility with funding vouchers for families that cannot pay for full child care. Prior to this incident, Respondent never has been charged with a Class I violation. This class of violation is the most serious in nature and is one that could or does result in serious harm or death to a child. Fla. Admin. Code R. 65C-22.010(1)(e)1. Based on a complaint by a parent that Ms. Piovera used excessive discipline on her 18-month-old son, A.M., the Department conducted a two-hour complaint inspection on June 20, 2018. The inspection resulted in the issuance of an Administrative Complaint alleging that Ms. Piovera used "inappropriate discipline" on the child, in violation of section 2.8A. and F., Child Care Facility Handbook (Handbook), incorporated by reference in rule 65C-22.001(6). The first section requires generally that a child care facility adopt a "discipline policy" that is consistent with section 402.305(12), while the second provision enumerates discipline techniques that are prohibited. The "inappropriate discipline" is described in the Administrative Complaint as follows: On May 30, 2018, K. Alejandra-Pacheco, a child care personnel, worked on an art project with one of the children in her care, while the other children were climbing up and down the chairs and taking off their shoes. Ms. Alejandra-Pacheco stated that she is not allowed to discipline the children, only the facility director, Carina Piovera. Ms. Piovera came into the classroom and made the children sit down. A.M., a one-year old toddler, was one of the children in the classroom. In it, Ms. Piovera is seen roughly handling A.M. by grabbing him, aggressively wiping his nose, having intense body language when talking to the child, forcefully pushing the child's chair into position at the table, and then aggressively put his hands on the table. A.M. is visibly afraid and upset, crying throughout his interaction with Ms. Piovera, who appears to be intimidating to the child. This incident was recorded by the facility camera. The Department employee who conducted the inspection did not testify at the hearing. However, a Department witness who viewed a video of the incident alleges that Ms. Piovera "used excessive force during hygiene and behavior redirection," and this was "severe, humiliating, or frightening to the child." The alleged incident occurred in the facility's toddler room. Six children, ranging in age from one to two years old, were in the room, along with a teacher, Ms. Pacheco. A surveillance camera, reloaded every 24 hours, is installed in each classroom to monitor all activities. The video is erased every 30 days by the security company, Swann Communication (Swann). If parents wish to watch their children in real time or within the 24-hour window before the camera is reloaded, they can download an application (app) on their cell phone, view the toddler room, and even make copies of the video. Ms. Piovera stated that she is "very comfortable" with video cameras in each classroom because parents are entrusting their children to her care and want to see how they are being treated. Although the original surveillance video long since has been erased, A.M.'s mother recorded a video of the incident on her cell phone using an app provided by a third party and not Swann. The video has been accepted in evidence as Department Exhibit 2. The video is fairly clear, is a "little fast," and is the only known recordation of the incident still available. Ms. Piovera testified that she has watched it more than 20 times. The Department's allegations are based wholly on its interpretation of the cell phone video. The incident itself lasts less than a minute. A.M., then 18 months old, and not a one-year-old, as stated in the Administrative Complaint, frequently had allergies or nasal problems, which caused a runny nose or cough. His mother authorized the use of a nebulizer for inhaling medications, but it never was used at the facility. The morning of May 30, 2018, was no different, and A.M. came to the facility that day with a runny nose. Although the mother denied her son had allergies, his runny nose was brought to her attention when she brought the child in that morning. She replied that she had been giving him medicine but "nothing was working." Around 10:21 a.m., and not 11:00 a.m., as stated in the Administrative Complaint, Ms. Piovera entered the toddler room to assist Ms. Pacheco in redirecting the children to a new activity, i.e., to sing a song and do art work, after efforts by Ms. Pacheco to have the children sit down and keep their shoes on were unsuccessful. Redirection is considered a form of discipline by the Department, but Ms. Piovera considers moving to a new task a routine action in caring for toddlers. Just before Ms. Piovera entered the room, A.M. and two other children were standing in their chairs and climbing onto the table. When A.M. saw Ms. Piovera enter the room, he immediately sat down in the chair. Ms. Piovera placed him in an upright position, adjusted his pants, and observed that his nose needed to be wiped and he had taken one shoe off. His nose had crusted mucous and the discharge was green. The child was crying at this point. The mother acknowledged that A.M. does not like having his nose wiped. Ms. Piovera needed two swipes with a tissue to clean A.M.'s nose. His feet lifted slightly when his nose was wiped, but this was because A.M. was trying to avoid having his nose cleaned. Ms. Piovera also put his shoe back on. Although A.M. began crying when she first touched him, no unusual force or pressure was used, and there were no marks or bruises on the child. Within a few seconds after his nose was cleaned, A.M. became calm, stopped crying, and placed his head on the table. The class then continued with painting activities. A Department witness acknowledged that there was no hitting, spanking, shaking, slapping, or pushing. However, based on her viewing of the incident, she contends Ms. Piovera "kind of twisted his body," "pulled his arms when she first grabbed him to get him to sit down in his chair," "appeared [to be] squeezing his arms," and "felt" there was "forcing or restricting movement" when she turned the child around. There is less than clear and convincing evidence to support these allegations. Around 2:15 p.m., the child was picked up by his mother. Although the mother had viewed the incident on her cell phone as it happened, she did not say anything to Ms. Piovera at that time or contact the Department to discuss any concerns.3/ Notably, when the incident occurred, the mother was in a dispute with Ms. Piovera over an unpaid bill ($1,345.00), which Ms. Piovera says still is outstanding. The mother contends the bill has been paid, but Ms. Piovera says the dispute is headed to small claims court. The mother withdrew the child from the facility that day without giving any explanation to Ms. Piovera, and he never returned to the facility. On June 13, 2018, A.M.'s mother raised the May 30 incident with Ms. Piovera for the first time in a series of text messages. Around the same time, she posted the video in a message on her Facebook page. On June 20, 2018, or three weeks after the alleged violation, A.M.'s mother reported the incident to the Department. The mother admits she always was behind in her payments, and, on the day she filed her complaint, she was asked by Ms. Piovera to stop by the facility and pay the balance owed. The Department requested that a child protective investigator (CPI) from the Manatee County Sheriff's Office investigate whether child abuse occurred. A Department representative and the CPI conducted a joint inspection on June 20, 2018. On July 16, 2018, the CPI issued a finding that the charge was unsubstantiated. Resp. Ex. A. Notwithstanding the CPI's determination, the Department points out that this proceeding involves a violation of Handbook standards, while the CPI was looking for indicators of abuse, which are governed by chapter 39. Thus, it contends that the CPI could have a non-substantiated finding in regards to abuse, but Ms. Piovera still could be cited for a rule violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint, with prejudice. DONE AND ENTERED this 8th day of May, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2019.
The Issue Whether Respondent violated Subsection 486.125(1)(e), Florida Statutes (2004),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the regulation of medicine pursuant to Chapters 20, 456, and 458, Florida Statutes. Mr. Westrope is, and was at all times material to this proceeding, a licensed physical therapy assistant in the State of Florida, having been issued license number PTA1170. Beginning in or about September 2004, D.D. was being provided physical therapy services through Girling Health Care, Incorporated (Girling). Girling contracted with Rehab Action, Incorporated (Rehab) to provide home health physical therapy to patients. Rehab contracted with Mr. Westrope to perform the physical therapy in the patients' homes. In or about September 2004, Mr. Westrope was assigned to provide physical therapy to D.D., who had undergone a complete knee replacement. D.D. had been assessed by Mr. Westrope’s supervising physical therapist, Gaspard de Laaf, on September 29, 2004, prior to Mr. Westrope beginning his physical therapy services on September 30, 2004. Mr. Westrope was required by Rehab to complete a visitation slip at the end of each physical therapy session. Mr. de Laaf had provided instruction to Mr. Westrope on how to complete the form. Mr. Westrope would send the completed form to Mr. de Laaf, who reviewed the form and sent it to Girling for reimbursement. When Mr. Westrope provided physical therapy to D.D., she would lie on her bed and perform therapy exercises, and then move into the kitchen where Mr. Westrope would measure the bend in her knee. When each session was over, Mr. Westrope would complete a visit slip for the treatment, and D.D. signed them to verify that she received the services. D.D. is visually impaired and can only see light. In order to sign the forms, D.D. requested Mr. Westrope to place the forms near the end of the kitchen table so that she could align her arm with the table edge so that her signature would be in a straight line. D.D. always signed her signature as "D.A.D." D.D. prided herself on her independence and did not allow anyone else to sign the visit slips for her. Mr. Westrope provided physical therapy services to D.D. on September 30 and October 1, 5, 6, 8, 12, 15, and 22, 2004. Mr. de Laaf evaluated D.D. and provided physical therapy services to her on October 25, 2004. Mr. Westrope provided services to D.D. on October 28, 2004. Mr. Westrope completed and submitted visit slip documentation for physical therapy treatment of D.D., which he claimed to have provided on October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004. However, Mr. Westrope did not provide services to D.D. on those dates. On or about November 3, 2004, D.D. contacted Girling complaining that she had not received physical therapy from Mr. Westrope in a while. On or about November 4, 2004, Mr. de Laaf was notified by Girling regarding the complaint it received from D.D. Mr. de Laaf then prohibited Mr. Westrope from seeing any Girling patients after Girling indicated that it did not want Mr. Westrope performing any of its services. Mr. de Laaf then resumed the treatment of D.D. On or about November 5, 2004, Tammy Hain, R.N., and Rob Hudson, O.T., who are supervisors employed by Girling, visited D.D. to verify that she had not been receiving physical therapy from Mr. Westrope on October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004. D.D. verified that she had not received services on those dates. D.D.'s daughter has been assisting D.D. with her financial transactions for 15 years and is familiar with D.D.'s signature. At the final hearing, D.D.'s daughter reviewed for the first time the visit slips submitted by Mr. Westrope for services to D.D. After reviewing the visit slips, D.D.'s daughter concluded that the signatures on the visit slips for October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004, were not written by D.D. D.D.'s daughter verified that D.D. always uses her middle initial “A” when signing her signature. The signatures on the disputed dates do not contain D.D.'s middle initial and are different in appearance from the signatures on the visit slips on which Mr. Westrope documented services that he did provide to D.D. On five occasions during the time that Mr. Westrope was providing services to D.D., Robert Hudson also provided occupational therapy services to D.D. on five occasions. At the end of the therapy sessions with Mr. Hudson, D.D. signed the visit slips “D.A.D.” The parties stipulated that if Mr. Westrope did not provide the services to D.D. on the dates he indicated on the visit slips, then Mr. Westrope violated the rules of the Department and Subsection 486.125(1)(e), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Michael G. Westrope, P.T.A., violated Subsection 486.125(1)(e), Florida Statutes, and imposing a penalty of a $2,000 fine and a six-month suspension followed by one year of probation with the terms to be set by the Department at the conclusion of the suspension period and requiring Respondent to complete five hours of Continuing Education in physical therapy medical records documentation. DONE AND ENTERED this 7th day of April, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2006.
