Conclusions THE PARTIES resolved all disputed issues and executed a Stipulation. The parties are directed to comply with the terms of the attached Stipulation. Based on the foregoing, this file is CLOSED. DONE AND ORDERED anise 7Aay of Llu , 2014, in Tallahassee, Leon County, Florida. eS ZA K, les: Agency for Health{Care Administration Page 1 of 3 Filed March 27, 2014 4:47 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Advocates For Opportunity 5975 W. Sunrise Blvd., Suite 217 Plantation, Florida 33313-6813 Agency for Health Care Administration Douglas J. Lomonico, Assistant General Counsel, MS #3 Agency for Health Care Administration Bureau of Finance and Accounting, MS #14 Agency for Health Care Administration Bureau of Medicaid Program Integrity, MS#6 ATTN: Rick Zenuch, Bureau Chief Health Quality Assurance (E-mail) Page 2 of 3 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was furnished by United States Mail, interoffice mail, or email transmission to the above-referenced _——— addressees this%& Clay ot _Yre L200. . SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Telephone No. (850)-412-3630 Fax No. (850)-921-0158 Page 3 of 3 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case No. 13-3378MPI Provider No. 6711324-98 ADVOCATES FOR OPPORTUNITY, C.I. No. 13-1717-000 Respondent. JOINT STIPULATION OF DISMISSAL The AGENCY FOR HEALTH CARE ADMINISTRATION (hereinafter *AHCA™ or “Agency”), and ADVOCATES FOR OPPORTUNITY (hereinafter “PROVIDER”), by and through the undersigned, hereby stipulate and agree to the following: 1. The parties enter into this agreement for the purpose of memorializing the resolution to this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, operating under Provider Number 6711324-98. 3. In its Final Audit Report, C.1. Number 13-1717-000, (the “Audit Letter" or “FAR”), dated July 30, 2013, AHCA notified PROVIDER that AHCA was seeking to recoup an alleged overpayment in the amount of $2,053.94 and audit costs estimated at the time to amount to $54.22. The FAR also sought to impose an administrative fine in the amount of $410.78 for an alleged violation of Fla, Admin. Code Rule 59G-9.070(7)(e). The total amount sought by the Agency in the FAR was $2,518.94. 4, In response, on or about August 29, 2013, PROVIDER filed with AHCA a Page | of 5 C.1. No. 13-1717-000 AHCA v. Advocates for Opportunity Joint Stipulation of Dismissal petition for a formal administrative hearing, which was forwarded to the Division of Administrative Hearings (DOAH), and therein challenged the findings contained within the FAR. 5. On or about September 18, 2013, PROVIDER and AHCA jointly filed a Motion to Relinquish Jurisdiction with DOAH in order to pursue resolution of this case short of a formal administrative proceeding. 6. On or about September 19, 2013, the Administrative Law Judge entered an order granting the parties’ Motion to Relinquish Jurisdiction and the case was referred back to AHCA. 7. Both parties stipulate and agree that as a resolution of all disputed issues in this cause, each party shall dismiss and rescind its cause of action. AHCA has agreed to dismiss its Final Audit Report, C.J. No. 13-1717-000. PROVIDER has agreed to dismiss its Petition for a Formal Administrative Hearing. 8. Both PROVIDER and AHCA agree that this joint stipulation of dismissal resolves and settles this case completely and releases both parties from any administrative or civil liabilities arising from the findings relating to the claims as referenced in audit C.1, No.13-1717- 000. 9. The parties agree to bear their own attorney’s fees and costs, if any. 10. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 11. All parties agree that a facsimile signature suffices for an original signature. Page 2 of 4 C.L No. 13-1717-000 AHCA v. Advocates for Opportunity Joint Stipulation of Dismissal 12. This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 13. Both AHCA and PROVIDER expressly waive in this matter their rights to any hearing pursuant to §§120.569 or 120.57, Fla. Stat., the making of findings of fact and conclusions of law by DOATI and the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding C.I. No. 13-1717-000 and any and all issues raised herein. PROVIDER further agrees that the Agency should issue a Final Order which is consistent with the terms of this Joint Stipulation of Dismissal, and which adopts this agreement and closes this matter as to AHCA C.1. No. 13-1717-000. 14. PROVIDER does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives. and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever, arising out of or in any way related to AHCA CI. No. 13-1717-000; and AHCA’s actions herein, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, by or on behalf of PROVIDER. 15. This Stipulation and Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 16. All times stated herein are of the essence in this Stipulation and Agreement. 17. This Stipulation and Agreement shall be in full force and effect upon cxecution by the respective parties in counterpart. Page 3 of 4 C.I. No. 13-1717-000 AHCA v. Advocates for Opportunity Joint Stipulation of Dismissal ADVOCATES FOR OPPORTUNITY BY: NAME (Print): Deborah Wicks Kahn TITLE: Director Date:_October 24 __, 2013 AGENCY FOR HEALTH CARE ADMINISTRATION 2 727 Mahan Drive Mail Stop #3 Tallahassee, FL 32308 Page 4 of 4 oA ERIC W. MIZLER ral Inspector Ger General Counsel vate. 3/14 uf By: _| . —— Zooupiia ~LOMONICO Assistant General Counsel a _ Date: Peboy lo oo (Page 1 of °8) FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION: RICK SCOTT ELIZABETH DUDEK GOVERNOR Better Health Care for all Fioridians SECRETARY GOVERNOR Tree sere me mer ere SECRETARY FEDERAL EXPRESS MAIL No.: 8029 1875 9208 July 30, 2013 Provider No: 6711324 98 NPI No: N/A License No.: N/A ADVOCATES FOR OPPORTUNITY 5975 W. SUNRISE BLVD. STE. 217 PLANTATION, FL 33313-6813 In Reply Refer to FINAL AUDIT REPORT CI. No. 13-1717-000 Dear Provider: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period January 1, 2008 through December 31, 2011. A preliminary audit report dated April 10, 2013 was sent to you indicating that we had determined you were overpaid $2,053.94. Based upon a review of all documentation submitted, we have determined that you were overpaid $2,053.94 for services. Since no documentation was produced to refute these billings, all the claims are considered overpayments. We have determined that you were overpaid $2,053.94 for services that in whole or in part are not covered by Medicaid. A fine of $410.78 has been applied. The cost assessed for this audit is $54.22, The total amount due is $2,518.94. Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. This letter shall serve as notice of the following sanction(s): e A fine of $410.78for violation(s) of Rule Section 59G-9.070(7) (e), F.A.C. (2) Pursuant to Section 409.913(23) (a), F.S., the Agency is entitled to recover all investigative, legal, and expert witness costs. Visit AHCA online at http://ahea.myflorida.com 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 (Page 2 of 8) Nursing Home Diversion Waiver — Fee for Service Match Page 2 The Medicaid program is authorized by Title XIX of the Social Security Act and Title 42 of the Code of Federal Regulations. The Florida Medicaid Program is authorized by Chapter 409, F.S., and Chapter Federal Regulations. The Florida Medicaid Program is authorized by Chapter 409, F.S., and Chapter 59G, F.A.C. This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, F.S, In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks (in accordance with Chapter 59G, F.A.C.), billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATION(S) A Medicaid Provider is required to comply with Medicaid policy requirements (e.g. laws, rules, regulations, handbooks, policy), These requirements include, but are not limited to, providing goods and services in accordance with provisions of Medicaid policy and retaining medical, financial, and business records pertaining to the goods and services furnished. This review included a review of your claims reimbursed to you by Medicaid for goods and services to determine compliance with Medicaid policy. Payments for goods or services that are not documented and/or not billed in accordance to Medicaid policy are deemed to be overpayments. Our review has determined that you have failed to comply with Medicaid policy as outlined below. * Medicaid fee-for-service payments have been identified for recipients while they were enrolled in the Medicaid Nursing Home Diversion Waiver Program. Medicaid providers are required to verify Medicaid recipient eligibility prior to rendering Medicaid services. The fee-for-service payments, shown on the attached work papers, were for services that were to be covered by the recipient’s Nursing Home Diversion Waiver Provider. The total amount reimbursed to you for these fee-for-service payments has been identified as an overpayment. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we need the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and telephone number of your attorney. If you are not in bankruptcy and you concur with our findings, remit by certified check the total amount reflected on page one, paragraph one, of this letter which includes the overpayment amount as well as any fines imposed and assessed costs. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.I. number listed on the first page of this audit Teport. Please mail payment to: (Page 3 of 8) Nursing Home Diversion Waiver — Fee for Service Match Page 3 Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 Pursuant to section 409.913(25)(d), F.S., the Agency may collect money owed by all means allowable by law, including, but not limited to, exercising the option to collect money from Medicare that is payable to the provider. Pursuant to section 409.913(27), F.S., if within 30 days following this notice you have not either repaid the alleged overpayment amount or entered into a satisfactory repayment agreement with the Agency, your Medicaid reimbursements will be withheld; they will continue to be withheld, even during the pendency of an administrative hearing, until such time as the overpayment amount is satisfied. Pursuant to section 409.913(30), F.S., the Agency shall terminate your participation in the Medicaid program if you fail to repay an overpayment or enter into a satisfactory repayment agreement with the Agency, within 35 days after the date of a final order which is no longer subject to further appeal. Pursuant to sections 409.913(15)(q) and 409.913(25)(c), F.S., a provider that does not adhere to the terms of a repayment agreement is subject to termination from the Medicaid program. Finally, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28-106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Miranda Hunt, Investigator, Agency for Health Care Administration, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412-4600, facsimile (850) 410-1972. Sincerely, has Fante Program Administrator Office of Inspector General Medicaid Program Integrity PF/MH/SG Enclosure(s) Copies furnished to: Finance & Accounting Health Quality Assurance (Interoffice mail) (E-mail) (Page 4 of 8) Nursing Home Diversion Waiver — Fee for Service Match Page 4 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes, Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28- 106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Richard J. Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 TaHahassee, Florida 32308 Fax: (850) 921-0158 Phone: (850) 412-3630 The reauest must be legible, on 8 % by 11-inch white paper, and contain: Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. An explanation of how your substantial interests will be affected by the action described in the FAR; 3. A statement of when and how you received the FAR; 4. For a request for formal hearing, a statement of all disputed issues of material fact; 5. Fora request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to relief; 6. For a request for formal hearing, whether you request mediation, if it is available; 7. For a request for informal hearing, what bases support an adjustment to the amount owed to the Agency; and 8. A demand for relief. A formal] hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shall be conclusive and final. (Page 5 of:8) Nursing Home Diversion Waiver — Fee for Service Match Page 5 If you are in agreement with this audit and wish to make payment, please return If you are in agreement with this audit and wish to make payment, please return this form along with your check. Complete this form and send along with your check to: Agency for Health Care Administration Medicaid Accounts Receivable 2727 Mahan Drive, Mail Stop #14 Tallahassee, Florida 32308 CHECK MUST BE MADE PAYABLE TO: FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider Name ADVOCATES FOR OPPORTUNITY Provider ID 6711324 98 MPI Case Number 13-1717-000 Overpayment Amount | $2,053.94 Fine Amount $410.78 Costs Assessed $54.22 Total Amount Due $2,518.94 Check Number Payment for Medicaid Program Integrity Audit (Page 6 of 8) @1OZ/SZ/TL —:a1eG Woday ELESONSEZOTZZ © S6OETS TYNOISS33OHd - EO6TSVES GH Z1069 aiaz/zz/at O10@/zZ2/0T €b 6Er" TS OFOZ/OT ONT NV WOIGIN YVAN SOGLEOSO OTOZ/tE/OT oroz/sTft ot ALEOSYSEE ‘ [ mnouydes, | eam paien de [owen sapmctadey wade | wpa welder | _prvemmesuen | S6OETS , SvNonsaiGua We | £06 Tare H ; TT ote} ‘TeEsoossz0izz Ey 6eR'tS OTOZ/60 ONE NVId TYIOGYN UNYIANH nonetaeee OTOL/OENG DOC 7 O&LISTERE ‘_Bnoury dey. | WRU palanon dey” | SUNN FPO CED [ rspvasa de | pu bukg de dl wifag wih dey | ‘Plucgpesuel | ——_——i " $6QETS TWNOISS330ud - EETISOHS 6a 21065 otoz/ters atoe/tehe “S@s9tOLzaTIzz 09°005'TS OT.02/80 _ONINVTA WOH SVAN 906T20STO. 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The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family daycare home should be suspended based upon the Petitioner's husband's plea of nolo contendere to a disqualifying second degree felony.
Findings Of Fact The Petitioner, Sislyn Gonsalves, has operated a family daycare home at times pertinent hereto, including in 2005 up through the time of the hearing, pursuant to license number F12V00010. The family daycare home is located at 2820 Lake Helen Osteen Road, Deltona, Volusia County, Florida. The Petitioner and her husband Clayton A. Gonsalves have had repeated disciplinary problems with their 13 year old son, K. G. K. G. had been repeatedly in trouble at school and may have been involved in an incident involving a theft, of which his parents became aware. On or about April 16, 2005, an incident occurred in the Petitioner's home. The Petitioner's husband Clayton Gonsalves and the Petitioner were trying to leave for church that morning and to persuade their son K. G. to attend church with them. An argument between the son and Mr. Gonsalves ensued. During the incident Mr. Gonsalves picked- up a short piece of light weight PVC pipe, approximately three feet by three quarter's of an inch, and struck his son several times on the left shoulder and the right hand. The persuasive evidence in this case is that the blows with the light weight PVC pipe did not leave marks. The son, K. G., being angry and upset at the time, abruptly left the family premises. The Petitioner and her husband and other child thereupon preceded to attend church. Later that day, after the incident had apparently been reported to the police, the police arrested Mr. Gonsalves and charged him as having committed child abuse. On or about May 11, 2005, Mr. Gonsalves entered a plea of nolo contendere on a charge of aggravated child abuse, which is a second degree felony. This resulted from the incident described above. As a result of that plea Mr. Gonsalves was sentenced to a term of three years of probation, and adjucation was withheld. As a condition of his probation he was ordered to have "no violent contact" with the victim, K. G., and to "comply with the Department of Children and Family's conditions and case plans." Mr. Gonsalves works in the State of New York as a plumber. He returns to his family residence, to be with his family, whenever possible, between jobs. He resides there with the Petitioner and their children at such times. He is often present in the family residence while the Petitioner is providing daycare for other children and often assists her in providing care for the children. The unrefuted, persuasive evidence adduced by the Petitioner through her testimony and that of her witnesses establishes that she and her husband are loving parents who do not maintain an abusive home. They treat their own children and the children they provide daycare for, as clients, in a loving, responsible and positive way. The Petitioner is in the process of earning her college degree in Early Childhood Education and desires to continue in the business of providing daycare. The lack of an abusive climate in the home is borne out by the fact that the Petitioner's and Mr. Gonsalves's children are in the gifted program in school, and by the fact that K. G.'s grades and scholastic standing at school have marketedly improved since the incident in question. The Petitioner's witnesses, particularly her mother, described Mr. Gonsalves as a loving husband and father who does not commit abuse, who does not drink, smoke or abuse his wife or children. Witness Ayallo, the agency's Licensing Inspector, established that the Petitioner's family daycare home is always in compliance with relevant regulatory rules and statutes, and he corroborated the Petitioner's testimony concerning the history of disciplinary problems caused by her son. Witness Surgine, the Agency's Licensing Specialist established that the Agency only wanted to suspend the licensure because of the fact that the husband, Mr. Gonsalves, would, on occasion, be present in the home when child clients are present. The Agency did not feel that the incident justified a revocation of license. This is an unfortunate, isolated incident. The persuasive evidence of record shows that Mr. Gonsalves is not an abuser of his children, the children of others or his wife, the Petitioner. The Petitioner is operating her facility as an exemplary family daycare home and desires to continue to do so. Even though she and her family are enduring rather straitened financial circumstances, she is successfully pursuing a college degree in Early Childhood Education. The testimony of Ms. Corchado, whose son has been cared for by the Petitioner in excess of three and one-half years, corroborates the exemplary record and caring atmosphere maintained by the Petitioner in operation of her family daycare home. Ms. Corchado has tried many daycare facilities and believes that the Petitioner's is the best one she found in terms of providing a loving, positive, environment for her son. Her son "adores the Petitioner and her family" and has become very close to them, even attending church with them on occasion. The Petitioner helps her son with his school work and Ms. Corchado has never observed or learned of any abuse occurring in the home. The incident which occurred with Mr. Gonsalves and his son is clearly an isolated unfortunate occurrence. It was deeply regretted by all concerned even before the Agency Respondent became aware of it. It is ironic that the Petitioner, who has conducted an exemplary child care facility operation, has been placed at risk for losing her licensure status while other child care facilities licensed by the Respondent with more violations of record which can impinge on the adequate care of children can remain licensed under corrective plans and procedures. The Agency, commendably, has recognized the unjust, automatic operation of the statute at issue herein, in terms of the Petitioner's particular circumstances and incident, by declining to seek revocation of licensure but merely suspension until the issue of Mr. Gonsalves's residence in the daycare facility is resolved. In any event, this was unfortunate effort at child discipline which became a little too heated and went awry. As the Petitioner pithily and eloquently put it, "If you don't discipline your children, they will grow up and the police will do it for you."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services suspending the license of the Petitioner for the above found and concluded reasons but that the suspension be stayed while, under appropriate Department supervision, the Petitioner and Mr. Gonsalves resolve the issue of his residence within the family daycare home location possibility of the licensed daycare home being re-located to another premises or while Mr. Gonsalves acts to secure an exemption (if successful) from the above-referenced disqualifying offense. DONE AND ENTERED this 4th day of January, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 4th day of January, 2006. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sislyn Gonsalves 2820 Lake Helen Osteen Road Deltona, Florida 32738 George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 440 Daytona Beach, Florida 32114-3269
The Issue The issues in this case are: (a) Whether Petitioner's license as a family day care home should be renewed; (b) Whether Petitioner was required to list her son, Stephen Randall, as a household member on her annual registration application for a family day care home for 2000 and 2001; and (c) Whether Stephen Randall was a member of Petitioner's household at any time in 2000 and 2001.
Findings Of Fact Based on the testimony and demeanor of the witnesses and the documentary evidence presented, the following findings of fact are made: Petitioner's application for license for a family day care home dated October 20, 1997, was received by Respondent on November 20, 1997. Listed among the "household members" on the application was Petitioner's son, Stephen H. Randall, whose date of birth is March 28, 1981. On January 10, 1998, Petitioner submitted her application for registration for a family day care home; the application was received by Respondent on January 14, 1998. Stephen Randall is also listed as a household member on this application. On January 15, 1998, Respondent wrote a letter to Petitioner acknowledging her desire to withdraw her application for license as a family day care home. On February 18, 1998, Petitioner was registered as a family day care home for one year effective February 28, 1998. The letter advised: To maintain your registration in accordance with Section 402.313, Florida Statutes, you must do the following: * * * (3) Send in background screening forms including fingerprints for household members who become 18 years of age, or for adults who move into your home, or when your substitute changes and has not been screened. On October 26, 1998, Petitioner forwarded a renewal application for registration as a family day care home which listed Stephen Randall as a "household member." As a result of a December 9, 1998, inspection by Respondent, it was determined that an adult who had not been screened was living in the registered day care home and, therefore, Petitioner was notified that screening was to be accomplished "ASAP." On January 12, 1999, Respondent sent Petitioner a Certified Letter reminding her that "Adult members residing in the family day care home must go through a background screening process in accordance with Florida Statutes, " On January 28, 1999, Petitioner telephoned Respondent indicating that she "changed her mind about daycare." This telephone call was followed by a letter from Respondent to Petitioner dated January 29, 1999, indicating, "Per your request January 28, 1999, we have withdrawn your Family Day Care license application and closed your registration effective this date." On April 9, 1999, Petitioner submitted an original registration application which listed her 18-year-old son, Stephen Randall, as living in the home which was to become the registered family day care home. On July 6, 1999, Petitioner, by letter, advised Respondent that "My son Stephen H. Randall is no longer living with me (Maxine Torres)." On July 20, 1999, Respondent mailed Petitioner a letter advising that "The Department of Children & Family Services has registered your Family Day Care Home for one year effective July 30, 1999." The letter also advised Petitioner of the necessity of advising Respondent when unscreened adults move into the home in the same language as contained in paragraph 4, supra. On September 23, 1999, Respondent sent Petitioner a Certified Letter which stated: We have received your letter dated July 7, 1999 in reference to your son, Stephen Randale [sic], moving out of your home. Should he return, he must be background screened within ten (10) days. Please remember that all household members must be screened in accordance with F.S. Section 202.303 and 402.305. Failure to do so in a timely manner may result in administrative action, which could result in a fine, suspension, or revocation. On October 31, 2000, the Circuit Court in and for Orange County, Florida, in Case Number CR-O-00-4737/A adjudicated Stephen Henry Randall, Petitioner's son, guilty of violating the following criminal statutes: Subsections 806.13(1)(b)1, 810.02(3), and 812.014(2)(c)5, Florida Statutes, two of which offenses are felonies, and sentenced him to one day in jail and three years' probation. Stephen Randall had been arrested in April 2000 for the criminal offenses he committed. The offenses occurred at a residence two residences away from Petitioner's home, the registered family day care home. Petitioner submitted an application for re-licensure dated May 14, 2000, in which she was required to disclose the name of "everyone who lives in your home." By signing the application, Petitioner attested that the information on the application was "truthful, correct, and complete." Stephen Randall was not listed as living or residing at Petitioner's home. Respondent's investigators and independent witnesses presented credible testimony indicating that Stephen Randall was residing in Petitioner's residence (the registered day care home) during the calendar year 2000. In particular, an abuse report of an incident in January 2000, indicates that Petitioner reported that she "left her teenage son in the home" purportedly to supervise the children left in Petitioner's care; in June 2000, Petitioner again told an investigator, that if she wasn't there her son, Stephen Randall, her daughter or husband watch the children. In addition, independent witnesses, whose children were at the day care home, reported repeatedly seeing Stephen Randall there. Stephen Randall was living in the residence of Petitioner, which was a registered day care home, during the calendar year 2000 and had not been screened as required by Florida Statutes because Petitioner did not advise Respondent that he had returned and was residing in the home. Respondent investigated two Florida Protective Services abuse hotline complaints against Petitioner and determined the complaints to be well-founded. In both instances, Petitioner failed to properly supervise children left in her care and, as a result, failed to ensure the safety of the children. Independent witnesses confirmed the abuse hotline complaints and presented other complaints, all confirming that Petitioner failed to properly supervise children left in her care and failed to ensure their safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for re-licensure of her family day care home. DONE AND ENTERED this 16th day of May, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2002. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 James Sweeting, III, Esquire 506 West Washington Street Orlando, Florida 32801 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether a provision contained in a Settlement Agreement of a federal lawsuit is the statement the Department of Children and Family Services (Respondent) relied upon to deny Petitioner, G.F., on behalf of minor child G.F. (Student G.F.), Medicaid waiver benefits and constitutes an invalid exercise of delegated legislative authority on the grounds that the statement in question was not promulgated as a rule; and Whether Petitioners can challenge a provision which is contained in the Developmental Services Waiver Services Florida Medicaid Coverage and Limitations Handbook, October 2003, in Florida Administrative Code Rule 59G-8.200(12), as an invalid exercise of delegated legislative authority when the agency which adopted the rule is not a party to this proceeding.
Findings Of Fact Medicaid is a cooperative federal/state program in which Florida participates in partnership with the national government. Medicaid provides medically necessary health care. In addition to shouldering administrative and regulatory responsibilities, Florida partially funds the Florida Medicaid Program, contributing about 42 percent of the money budgeted for the program's operation. Federal funds make up the balance. The Florida Retail Federation, Inc. v. Agency for Health Care Administration, Case No. 04-1828RX (DOAH July 19, 2004). Under the statutory scheme, states who participate in Medicaid are required to have a state plan. See 42 C.F.R. § 430.10. A participating state may also grant waivers to their state plan pursuant to Section 1915(c) of the Social Security Act. See 42 C.F.R. § 430.25. Each participating state must designate a single-state agency to administer or supervise administration of the state plan. The state plan must also specify whether the agency that determines eligibility is the Medicaid agency or the single-state agency for the financial assistance program under Title IV-A. See 42 C.F.R. § 431.10. The State of Florida has identified AHCA as the single-state agency to administer the plan and the previously identified Respondent to determine eligibility. § 409.902, Fla. Stat. (2002).2/ AHCA is required to enter an interagency agreement with Respondent and other agencies "to assure coordination and cooperation in serving special needs citizens." § 408.302(1), Fla. Stat. It is required that Respondent approve and have input with regard to AHCA's rules when the rules directly impact the mission of Respondent. Access to quality healthcare is "an important goal" for all citizens in Florida. § 408.301, Fla. Stat. Persons served by Respondent are citizens with special needs, and it is the policy of Florida that persons with special needs are adequately and appropriately served. The Florida Legislature recognizes that the Medicaid program is "an intricate part of the service delivery system for the special needs citizens" in Florida. AHCA is not a service provider and does not develop or direct programs for special needs citizens, such as Student G.F. § 408.301, Fla. Stat. In fact, it is Respondent that plays the vital role to assure that "the needs of special citizens are met." Under the Medicaid program in Florida, AHCA is the "single state agency authorized to make payments for medical assistance and related services." § 409.902, Fla. Stat. However, Respondent is responsible for "Medicaid eligibility determinations, including, but not limited to, policy, rules, . . . as well as the actual determination of eligibility." Specifically, Respondent administers the Developmental Disabilities Home and Community-Based Services Medicaid Waiver Program (HCBS Medicaid Waiver Program) in Florida, and under Section 409.919, Florida Statutes, is authorized and required to enact administrative rules, as necessary, to fulfill its obligation to comply with federal and state Medicaid law. Student G.F. is a developmentally disabled child with multiple developmental disabilities, including autism, mental retardation, and profound deafness. Student G.F.'s combination of disabilities have resulted in significant cognitive impairment, social withdrawal, violence, and self-injurious behavior. This has resulted in extreme challenges in communication and acquisition of skills related to daily living. In 2000, Student G.F. was placed at the NDA in Mount Dora, Lake County, Florida, as a day student under the treatment of Dr. Cohen, as part of Student G.F.'s Individual Education Plan under the Federal Individual with Disabilities Education Act. Approximately five months later, Dr. Cohen determined that residential placement of Student G.F. was medically necessary. Petitioner asserts that the NDA in Mount Dora, Florida, is the only facility that could provide residential habilitation services for Student G.F. and treat her complex array of disabilities. The NDA is a certified Medicaid waiver provider for Respondent in District 10. On or about August 1, 2001, Deloris Battle, an independent contractor who provides support coordination services to recipients under the HCBS Medicaid Waiver Program, prepared the Florida Status Tracking Survey for Student G.F. Respondent's surveyor concluded that Student G.F. was in a state of crisis and required residential placement for habilitation services. Petitioner School Board reached an understanding with Battle whereby the parties would share in the cost of services for Student G.F. at the NDA. Petitioner School Board would fund the cost of educational services, and Respondent would fund the cost of medical and residential habilitation services. Respondent's share of the cost of the services would be funded by the HCBS Medicaid Waiver Program. Student G.F. qualifies as developmentally disabled and is eligible for Medicaid services pursuant to Chapter 409, Florida Statutes. Student G.F. is also eligible for services under the HCBS Medicaid Waiver Program. Battle submitted a cost plan to Respondent's district's office that requested HCBS Medicaid Waiver Program funding for Student G.F.'s residential placement at NDA. Battle had no authority to commit Respondent to expend any Medicaid waiver funds without approval. The cost plan submitted by Battle was not sent to Tallahassee for approval. Approval was delayed at the district level until it was learned that Petitioner School Board agreed to pay for the residential placement of Student G.F. In May 2002, Petitioner School Board and G.F. were advised that Medicaid waiver funding for Student G.F.'s residential placement at the NDA was denied. Respondent offered no other options for service. Petitioner School Board agreed to fund Student G.F.'s residential placement at the NDA for a trial period. Such funding by Petitioner School Board has continued, because Petitioners believed that the NDA is the only facility that can treat Student G.F.'s array of disabilities. Petitioner School Board elected to fund the entire cost of Student G.F.'s residential placement under protest. The Dispute Petitioners brought this instant proceeding because they believe that Respondent's denial of Medicaid waiver funding for Student G.F.'s residential placement was (and continues to be) based on an agency statement by Respondent that was not adopted as a rule, in violation of Sections 120.54 and 120.56, Florida Statutes (2004). In 1998, Prado-Steinman v. Bush, Case No. 98-6496-CIV- FERGUSON, was filed in the United States District Court for the Southern District of Florida. One of the defendants was the Florida Department of Children and Family Services. On June 27, 2000, a settlement agreement was signed by the parties to the Prado-Steinman litigation. Petitioners allege that the initial basis for Respondent's denial of funding for Student G.F.'s placement was an agency statement purportedly based entirely upon Respondent's interpretation of the settlement agreement reached in Prado- Steinman, that Medicaid waiver funding is unavailable for facilities with a capacity to house more than 15 persons. Specifically, page 16 of the Settlement Agreement dated June 29, 2000, paragraph (F)(1), "Group Home Placement" reads as follows: The parties agree that they prefer that individuals who are enrolled in the Waiver live and receive in smaller facilities. Consistent with this preference, the parties agree to the following: The Department will target choice counseling to those individuals, enrolled on the Waiver and who presently reside in residential habilitation centers (where more than 15 persons reside and receive services). The focus of this choice counseling will be to provide information about alternative residential placement options. The Department will begin this targeted choice counseling by December 1, 2000, and will substantially complete this choice counseling by December 1, 2001. See generally Prado-Steinman v. Bush, 221 F.3d 1266 (11th Cir. 2000). At paragraph 24 of the Amended Petition, Petitioners assert that the alleged agency statement, which has not been adopted as a rule, are the statements by Respondent that the agency will not authorize Medicaid waiver funding for facilities with a greater number of beds than specified in the agreement and that the NDA is not an eligible Medicaid waiver facility under the agreement. The settlement agreement does not prohibit placement of individuals who are enrolled in the HCBS Medicaid Waiver Program with specific facility sizes. The portion of the agreement that refers to residential facilities concerns Group Home Placements, as quoted in paragraph 19 above, and provides that Respondent will (1) counsel residents of residential habilitation centers where more than 15 persons reside about alternative residential placements; (2) will develop alternative residential placements; (3) will encourage the use of client advocates for residents of residential habilitation centers who have no family, friends, or guardian to advocate on their behalf; and (4) will not fill vacancies in residential habilitation centers with individuals enrolled on the waiver. Paragraph J of the Settlement Agreement, found on page 25, provides that Respondent will continue to develop residential program models that encourage an environment for self- determination. Further, Respondent will emphasize to support coordinators that the annual needs assessment for waiver recipients should include an assessment of the need for alternative placement. The focus of the language is to move more clients into residences meeting the policy and philosophy of Chapter 393, Florida Statutes. Parents were given the opportunity to take their children out of institutions and into less restrictive environments. At paragraph 27, the Amended Petition alleges that the use of the Settlement Agreement "to adversely affect the interests of the Petitioners is an invalid exercise of delegated legislative authority" as defined in Subsection 120.56(4), Florida Statutes (2004). The Amended Petition makes no allegation that the alleged agency statement, which has not been adopted as a rule is arbitrary or capricious, even if that standard were applicable to a petition under Subsection 120.56(4), Florida Statutes (2004), nor does the Amended Petition allege that the alleged agency statement is in violation of federal law. The Amended Petition does not include AHCA as a party and does not mention Florida Administrative Code Rule 59G-8.200, although, Petitioners have been aware of the rule since early in this rule-challenge proceeding. The Amended Petition does not cite any proposed or existing rule or delineate a challenge to any proposed or existing rule, regardless of the promulgating agency. The Amended Petition does not allege that Florida Administrative Code Rule 59G-8.200 somehow violates federal law. AHCA began rule-making to adopt a handbook for the HCBS Medicaid Waiver Program in October 2001. Rule-making was initiated to meet the requirements of the federal Center for Medicare and Medicaid Services. It requires the states who participate to promulgate handbooks. AHCA published its notice of rule development in Volume 27, No. 52 of the Florida Administrative Weekly dated December 28, 2001. AHCA held seven rule workshops concerning the Medicaid Handbook: two in Tallahassee (January 14, 2002, and February 14, 2002); one in Pensacola (February 27, 2002); one in Jacksonville (February 19, 2002); one in Tampa; one in Orlando (February 22, 2002); and one in Fort Lauderdale (February 15, 2002). The workshops were attended by a large number of persons and representatives of advocacy groups. The rule notice was published in Volume 28, No. 18 of the Florida Administrative Weekly dated May 3, 2002. A public hearing was held on May 28, 2002. Subsequent to the public hearing, a notice of change was filed and a second public hearing was held on August 19, 2002. Florida Administrative Code Rule 59G-8.200, and the Medicaid Handbook incorporated therein by reference, were originally adopted on October 27, 2002. It has since been amended. Florida Administrative Code Rule 59G-8.200(12) currently provides in pertinent part: (12) Developmental Services Waiver – General. This rule applies to all Developmental Services Waiver Services providers enrolled in the Medicaid program. All Developmental Services Waiver Services providers enrolled in the Medicaid program must comply with the Developmental Services Waiver Services Florida Medicaid Coverage and Limitations Handbook, October 2003, incorporated by reference, and the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, October 2003. Both handbooks are available from the Medicaid fiscal agent. The Developmental Disabilities Waiver Services Provider Rate Table, November 2003, is incorporated by reference. The Developmental Disabilities Waiver Services Provider Rate Table is available from the Medicaid fiscal agent. Chapter 1 of the Handbook is entitled, "Purpose, Background and Program Specific Information," and contains general definitions. "Licensed Residential Facility" is defined at pages 1-3 as: Facilities providing room and board, and other services in accordance with the licensing requirements for the facility type. Community-based beneficiaries with developmental disabilities may receive DS waiver services while residing in: Group and foster homes licensed by the Department of Children and Families in accordance with Chapter 393, Florida Statutes, and Chapter 409, Florida Statutes. Comprehensive, transitional education program facilities, licensed by the Department of Children and Families in accordance with Chapter 393, Florida Statutes. Assisted Living Facilities, and Transitional Living Facilities, licensed by the Agency for Health Care Administration in accordance with Chapter 400, Florida Statutes. Residential Habilitation Centers and any other type of licensed facility not mentioned above, having a capacity of 16 or more persons, if the beneficiary has continuously resided at the facility since August 8, 2001, or prior to this date. "Institution" is generally understood by persons in the disabilities profession as a facility with more than 15 beds that is self-contained, providing all the needs of its residents, as opposed to a more home-like environment. The "best practice" model for developmental disabilities services is a group home with six beds. Respondent interprets these provisions to mean that Medicaid waiver funding is unavailable for a residential placement if the facility has a capacity of 16 or more persons, unless the beneficiary has continually resided at the facility since August 8, 2001, or prior to that date. The Medicaid Handbook is incorporated by reference in AHCA's rule. (Fla. Admin. Code R. 59G-8.200) Respondent has not promulgated a separate administrative rule pursuant to Chapter 120, Florida Statutes (2004), that incorporates the Medicaid Handbook or any part of it into its own rules. However, it did cooperate and coordinate with AHCA when the rule and Medical Handbook were adopted, as required by Subsection 408.302(1), Florida Statutes. AHCA and Respondent have entered into an agreement by which Respondent has agreed to implement the HCBS Medicaid Waiver Program. AHCA retains the authority and responsibility to issue policy, rules, and regulations concerning the HCBS Medicaid Waiver Program, and Respondent is required to operate the program in accordance with those policies, rules, and regulations. Section 409.919, Florida Statutes, and AHCA's rule incorporating the Medicaid Handbook by reference, supplied Respondent with the necessary rule authority to deny the funding. Petitioners have failed to prove that page 96 of the Settlement Agreement dated June 29, 2000, paragraph (F)(1) in the Prado-Steinman case, was relied upon to deny Student G.F. Medicaid waiver benefits. Petitioners have failed to prove that page 16 of the Settlement Agreement was an unpromulgated rule. Petitioners cannot challenge a provision in the Medicaid Handbook, which has been adopted by reference in Florida Administrative Code Rule 59G-8.200(12), when the agency which adopted the rule is not a party to this proceeding.
The Issue The issue is whether Petitioner, Basedeo Ramassar, is eligible for exemption from disqualification from working in a registered or licensed family day care center under Subsection 402.302(3), Florida Statutes.
Findings Of Fact Under Sections 402.301-319, Florida Statutes, the Department of Children and Family Services is the agency responsible for establishing licensing standards for child care facilities and child care personnel. Petitioner, Basedeo Ramassar, is married to Cathy Ramassar; they both reside at 2707 West Airport Boulevard, Sanford, Florida. Cathy Ramassar applied to Respondent to renew her license as a family day care facility at her home at 2707 West Airport Boulevard, Sanford, Florida. As a result of her application, Respondent conducted a Level 2 background screening. As a result of the screening, it was determined that, on March 20, 2000, Basedeo Ramassar had pled nolo contendere to the charge of assignation to commit prostitution, a violation of Section 796.07, Florida Statutes. When Cathy Ramassar was advised that her license would not be renewed because of her husband's violation of Section 796.07, Florida Statutes, she requested an administrative hearing and, shortly thereafter, Mr. Ramassar requested an exemption pursuant to Section 435.07, Florida Statutes. Michael Ingram, District 7 Screening Coordinator, convened a three-person Exemption Review Committee which considered the circumstances surrounding the disqualifying criminal incident, nature of harm to victim, amount of time since the last criminal incident, and the applicant's general history. The Exemption Review Committee relies on the applicant to provide information on rehabilitation. The Exemption Review Committee denied Mr. Ramassar's exemption request based, in part, on the fact that not enough time had elapsed since the 1999 offense and the March 20, 2000, nolo contendere plea and a 1990 domestic battery arrest which occurred prior to his current marriage. This denial was a proper exercise of the authority vested in the Exemption Review Committee. Mr. Ramassar testified that during the afternoon hours of November 26, 1999, he approached an undercover female police officer and "offered her $20 for straight sex." This resulted in his arrest and ultimately, his nolo contendere plea to assignation to commit prostitution. With the help of a supportive wife and members of their church, which he regularly attends, Mr. Ramassar has made a good start on a rehabilitation program. Apparently, he has a good marriage which has withstood the humiliation of public knowledge of his infidelity and criminal involvement; each witness testified to awareness of his criminal involvement. As a part of the exemption process, Subsection 435.07(3), Florida Statutes, requires an assessment of "the nature of the harm caused to the victim"; the only "victim" in this case is Mr. Ramassar's wife, who has not only suffered the public humiliation of her husband's infidelity, but has been denied a license renewal for her day care facility. Mr. Ramassar is regularly employed as a mason and, as a result, except on rare occasions, is away from the day care facility during its normal working hours. Witnesses who had children enrolled in Mr. Ramassar's wife's day care facility expressed little concern with the knowledge that Mr. Ramassar had pled nolo contendere to assignation to commit prostitution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner, Basedeo Ramassar, an exemption from disqualification from employment as a caretaker for children and granting Cathy Ramassar a renewal of her license. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 George B. Wallace, Esquire George B. Wallace, Esq., PA 700 West First Street Sanford, Florida 32771 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner proved by clear and convincing evidence allegations contained in its Proposed Revocation of Respondent's Family Day Care License No. 907 dated January 21, 2004.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, exhibits admitted into evidence, stipulations and arguments of the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003), and the entire record compiled herein, the following relevant and material facts are determined: The Parties Petitioner is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Petitioner routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the home’s operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on family day care homes that have a provisional license rather than a standard license. Petitioner also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time without notice. Respondent is the provider and licensed owner of a licensed family day care home located at 965 Waldon Avenue in Bartow, Florida (hereinafter “Respondent’s facility” or “the facility”). Respondent’s facility consists of a family residence with a connecting door to the converted garage. The number of children Respondent may have in “care” each day depends upon: (1) the ages of the children in care and (2) the number of qualified caregivers available to supervise the children in various age groups. This restrictive requirement, referred to as the “child care ratio,” is mandated by statute, the violation of which creates a dangerous situation and a dangerous condition for the safety and well-being of the children in care. The Inspection and violations On March 12, 2003, Respondent’s facility was inspected by Gloria Mathews (Ms. Mathews) and Tricia Step (Ms. Step), and several areas of non-compliance were identified during this inspection. The following non-compliant items were noted on Petitioner’s Family Child Care Home Inspection Checklist: unsafe storage of materials dangerous to children was observed in the bathroom drawers, litter was observed in areas where children play, equipment or plumbing not in working order (item was a baby crib and toilet with tissue the children had not flushed), no operable smoke detector or fire extinguisher, the surface of the diaper changing area was not impermeable, no record of fire drills for the past six months, and an up-to-date and age-appropriate immunization record was missing for one child. Two other non-compliant items, Ipecac not labeled with poison control phone number and seven pre-school age children ages 12 months and older were in the facility. Respondent may provide care to only six children in this age group. The extra child was taken home, and this item was corrected at the time of inspection. On December 18, 2003, Respondent’s facility was inspected by Ms. Mathews and Ms. Step, and the following non- compliant items were noted on the Family Child Care Home Complaint: Respondent had 18 children in the facility three of which were infants. Respondent was not present at the time of inspection, and the substitute caregiver was in charge. Petitioner could not determine whether screening of the substitute caregiver, Elizabeth Ricks, had been completed. Ms. Mathews and Ms. Step remained at Respondent’s facility until the parents picked up their children. James Hayes (Mr. Hayes), Respondent’s husband, took one child home. On January 21, 2004, Petitioner informed Respondent by certified mail of the proposed revocation of her family day care license initially issued in March 2002. Petitioner alleged that the decision to revoke Respondent’s license to operate a family child care facility was based on her failure to ensure that the children' substitute caregivers were adequately screened and because Respondent's home was over capacity and out of ratio. The notice stated: On December 18, 2003, there were eighteen (18) children in your day care home. Three (3) of the children were under the age of twelve (12) months. With 3 infants in your care, your license permits you to care for a maximum of six (6) children. The number of children in your home far exceeds the number of children allowed. During an inspection on March 12, 2003, seven (7) preschool age children ages 12 months and older were observed in your home. You are permitted six (6) children in this age group. This violates section 402.302(7), F.S. You also failed to insure [sic] that the substitute care persons in your home caring for children were properly screened in accordance with section 402.313, Florida Statutes. At the final hearing, Petitioner’s inspectors, Ms. Mathews and Ms. Step testified that when they arrived at Respondent’s facility on December 18, 2003, Mr. Hayes was in the facility. Based upon the testimony of the inspectors, Petitioner argued in its post-hearing submittal that Mr. Hayes had not been screened and that he had a criminal record. Petitioner presented no evidence to substantiate the claim that Mr. Hayes had a criminal record. The testimony and argument regarding this issue is hearsay without corroboration and disregarded. Respondent's Evidence Respondent testified that she was out of town on December 18, 2003, and that her substitute caregiver had begun training classes, but apparently had not completed the course and, therefore, had no background check performed. According to Respondent, non-compliant items identified by Petitioner’s inspectors were corrected as soon thereafter as possible. Respondent testified that she was confused regarding the infant and pre-school child-to-caregiver ratio because it was never explained to her in the manner testified to by both Ms. Mathews and Ms. Step. Continuing, Respondent testified that her substitute caregiver(s) had completed the required training and are now qualified to assist her. She contended that submission of the names and certification of training completion had been provided to Petitioner and that she was awaiting Petitioner's response. This testimony was not disputed by Petitioner. Respondent, to counter allegations that her facility and personnel presented a significant or potential risk of harm to the children, provided four testimonial letters from parents who were regular patrons of her facility. Each of the four parents expressed confidence in the assurance of safety and the ready necessity of Respondent’s child care services during the work week and often times during the weekend. Respondent presented photographs of her facility evidencing the facility’s configuration, carpeting, equipment, beds, and other furniture. Respondent testified that Mr. Hayes does not enter the facility during the time children are present. To ensure separation between the family’s living area and the attached rooms used for child care, Respondent installed a door between the room leading from the family’s living area to the anteroom and the garage. Respondent corrected every non-compliant item identified by Petitioner during their two inspections of her facility. Many, if not all, corrections were made when identified; i.e., the clogged toilet was flushed. The non- compliant items, individually or collectively, were minor and did not directly create an unsafe situation for the children in care. These efforts demonstrated a sincere intent and desire to comply with Petitioner's rules and regulations and to continue to provide a safe and necessary family day care home for working parents in her immediate neighborhood. Violations Proven by Petitioner Petitioner proved by clear and convincing evidence that on March 12, 2003, there were seven preschool children ages 12 months and older in the facility, Family Day Care License No. 907 permits a maximum of six children in care, an amount in violation of Subsection 402.302(7)(c), Florida Statutes (2003). Petitioner proved by clear and convincing evidence that on December 18, 2003, there were 18 children in Respondent's facility in violation of Subsection 402.302(7)(b), Florida Statutes (2003).
Recommendation Based upon the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating Subsection 402.302(7), Florida Statutes (2003), twice. Finding Petitioner not guilty of violating Section 402.313(3), Florida Statutes (2003). Setting aside the revocation of Respondent's family day care home license. Suspending Respondent's family day care home license until such time that the following conditions are met to the satisfaction of the Department: Respondent's substitute caregivers are identified, trained, qualified, and approved by Petitioner. Respondent demonstrates an understanding of the required child-to-child caregiver ratios. Respondent has trained each of her substitute caregivers on the child-to-child caregiver ratios and provides written instructions to be followed by her caregivers each day when the children in care in a specific age group are out of ratio to the number of caregivers present. That all conditions hereinabove are completed to the satisfaction of Petitioner as the condition for lifting the suspension. DONE AND ENTERED this 17th day of September 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 17th day of September, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Theresa Hayes Arielle's Angel Care 965 Waldon Avenue Bartow, Florida 33830 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent's certification as a support coordinator under the Medicaid waiver program should be renewed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons to be certified as support coordinators under the home and community based services program. At all times material to the allegations in this case, Respondent, Leonel Mederos, was certified as a support coordinator and did business through his company, Las Americas Support Services. For the period 1992 through 1995, Karlene Peyton was the program administrator for the Department's developmental services program which was responsible for the support coordinators under the home and community based services program. The developmental services program provides services to clients developmentally disabled, e.g., persons who are mentally retarded, have autism, cerebral palsy or spina bifida. Developmentally disabled persons are entitled to receive benefits such as supportive living services, employment services, training services, residential services, and case management services. The Department administers such services pursuant to Chapter 393, Florida Statutes, and Chapter 10F-13,Florida Administrative Code. As part of the system to provide services to the developmentally disabled, the home and community based services program (HCBSP) was established under the Medicaid program. This program adds a support coordinator who is not employed by the Department but who serves as a case manager for the client. In order to qualify under the HCBSP, clients must be Medicaid eligible and have the specified range of disability. For example, a client who is mentally retarded would be evaluated based upon their IQ level and deficiencies in activities of daily living. In the instant case, the persons providing assistance or case management to the developmentally disabled client are designated as waiver support coordinators. The waiver support coordinators are Medicaid providers. When the Department established the waiver support coordinators program, it promulgated statewide policies and written guidelines to regulate the system. It also developed district specific guidelines or policies. One policy, for example, is the limitation on the number of cases assigned to each support coordinator. A waiver support coordinator may not have more than thirty-five (35) clients. Respondent had been an employee with the Department at the time the waiver support coordinators program was established in Dade County. He left the agency to become, and was certified as, a Medicaid waiver support coordinator under the home and community based services program. Respondent qualified Las Americas Support Services as an entity through which waiver support coordinators might work. In order to become certified Respondent was required to complete training requirements related to statewide and district training. Topics covered in the training included Department rules and policies related to the Medicaid waiver program, support plans, plan implementation, services, record keeping, documentation of services and billing, and the use of the Department's computer system. As part of the application package completed on or about May 20, 1993, Respondent executed assurances which are part of the Medicaid provider agreement. The assurances are Respondent's representation to the Department that he will comply with specific conditions. These assurances provided, in pertinent part: 3. All individuals employed as support coordinators will meet the minimum require- ments of a bachelors degree in a human service field and two years of experience with individuals who have a developmental disability. Evidence of these qualifications will be maintained in each individual's employee personnel file. * * * 6. The provider shall maintain financial records in accordance with a recognized system of accounting to accurately reflect the details of the business and shall undergo an annual financial audit of its support coordination program, which may be part of an agency-wide audit. * * * 21. The provider assures that it will maintain the client central record in accordance with 393, F.S. * * * 24. The provider assures compliance with requirements of Chapter 393, F.S. and the proposed DS/Home and Community Based Services Waiver Rule, 10F-13, F.A.C. * * * 27. The provider assures that no more [than] thirty-five individuals will be assigned to a support coordinator who is serving Developmental Services HCBS waiver clients. * * * 29. The provider understands that payment for independent support coordination services is made from state and federal funds and that any falsification or concealment of a material fact may be prosecuted under state and federal laws. The provider further understands that such falsification or concealment is a breach of the DS/HCBS certification and may result in cancellation of same by the department. * * * 31. The provider agrees to return to the department any overpayments received that were disbursed to the provider by the depart- ment. In the event that the department discovers an overpayment has been made, the department will notify the provider of such a finding. Except for provided in No.32 below, the provider agrees to make repayment within thirty (30) days of recipt (sic) of such notification unless the parties are able to agree upon an alternative schedule. Respondent attended and completed the statewide training portion for certification in June, 1993. He completed the district training (with information pertinent specifically to District 11) in July, 1993. He was fully certified to perform as a support coordinator from July 1, 1993 through July 1, 1994. In June, 1994, as part of the recertification process, Respondent executed another assurances agreement. Subsequently, his certification was renewed for the period September 1, 1994 through February 28, 1995. This second assurances agreement, while not identical to the first, in substance had the same provisions as those outlined above in paragraph 17 above. For each client to be served by a waiver support coordinator, a support plan must be developed that identifies the specific services needed by the client. Such plan is developed with input from the client, the client's family, as well as the service providers who are to provide the needed services. The driving force to establish the support plan must be the client's individual needs. Once the support plan is in place the services coordinator must verify that the services are properly and satisfactorily delivered to the client. The coordinator must keep accurate case notes reflecting the date, time, and description of all services provided to the client. The documentation maintained by the services coordinator serves to verify that the services were delivered. As part of the process, the coordinator must also have a cost plan which identifies the expenses budgeted for each service the client is to receive. Every cost plan must be submitted to the Department for approval, and only services which have been approved may be billed by the service coordinator. Every support coordinator is required to maintain case notes of all activities performed on behalf of a client. No activity may be billed to the Medicaid waiver program which is not supported by case notes reflecting the identity of the client, the date of the service, the time of the service and the description of the service. At all times material to this case, the support coordinators billed time based upon quarter hour increments. For example, one through fifteen minutes was billed as one unit, sixteen through 30 minutes as two units, and so on for a total of 4 units per hour. Each support coordinator was responsible for logging their billing units directly into the Department's computer system. Only services which have been approved may be billed and may not include administrative duties such as faxing, copying, transferring case records or other office functions which are included in the rate paid to support coordinators. Each support coordinator is subject to a review wherein Department personnel audit client records to determine compliance with the Medicaid program policy requirements. In November, 1994, Department personnel were reviewing the qualifications of two persons employed as support coordinators through Respondent's company. When Respondent could not produce either the original degrees or authenticated transcripts for the two coordinators (which would evidence the requisite degree required for the coordinators), Respondent was instructed to return all case records assigned to the two workers to the Department. When the case records were returned, the Department discovered billing discrepancies. For example, it discovered Respondent had overbilled for certain clients and had billed for services not allowed. When this was uncovered, the Department elected to perform an in-depth review of the Respondent's business record keeping. The materials reviewed were from Respondent who was responsible for their origin and accuracy. From November 1994 through February 1995, the Department attempted to reconcile Respondent's case records with the billing which had been submitted to the agency by the Respondent. As a result of this audit, it is found the Respondent overbilled by billing more units that were documented. The Respondent overbilled by billing for services which are not allowed and had not been approved. The Respondent overbilled by billing for services provided by an unqualified services coordinators for whom appropriate documentation has not been provided. The Respondent overbilled by exceeding the amount of an authorized payment thereby making a payment not approved by the Department. In addition to the foregoing, the Respondent attempted to serve seventy (70) clients. Such number exceeds the number of clients a services coordinator is authorized to have. Based upon the foregoing, the Department decided on March 1, 1995 not to renew Respondent's certification. Respondent timely challenged that decision. The application and assurances executed by Respondent provided a notice that the failure to comply with the Medicaid waiver policies constitutes grounds for denying or cancelling certification in the program.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order affirming the agency action letter of March 1, 1995, which determined not to renew the Respondent's certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of January, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1997. APPENDIX Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1 through 12, 14 through 23, 25 through 31, and 33 are accepted. With regard to paragraph 13, the assurances contained, in substance, the same provisions but were not identical to the first ones executed by Respondent. With regard to paragraph 24, it is accepted that Respondent received a warning regarding soliciting clients otherwise rejected as irrelevant or not supported by the record. With regard to paragraph 32, it is accepted that Respondent was offered assistance for remediation purposes and was not singled-out for disparate treatment; otherwise rejected as irrelevant or argument or comment. Rulings on the proposed findings of fact submitted by Respondent: 1. Paragraphs 1 and 2 are rejected as argument, comment, or contrary to the weight of the credible evidence. COPIES FURNISHED: Myron M. Gold, Esquire FOX AND GOLD, P.A. 2900 South West 28th Terrace Miami, Florida 33133 Hilda A. Fluriach, Esquire Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, N-1014 Miami, Florida 33128 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee,Florida 32399-0700
The Issue Whether the Department of Children and Family Services (the "Department") had just cause to revoke the license of Petitioner to operate a family day care home.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: From April 15, 1987, through March 31, 2001, Marcia Edwards operated a registered family day care home at 15475 Chloe Circle, Fort Myers, Florida 33908. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care home involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home must comply with the limits on the number of children under care, as set forth in Subsection 402.302(7), Florida Statutes. Ms. Edwards had been reminded of the requirement for background screening of household members at least once, via letter dated February 12, 1993. Nonetheless, the Department received two complaints in December 1994, regarding the presence of an unidentified person in the home. One complaint noted that an "unidentified male houseguest was eating and drinking the children's food." The second complaint noted that Ms. Edwards was out of town and left the children in the care of her mother and "a guy named Wayne." On January 4, 1995, the Department sent Ms. Edwards a letter informing her of the complaints and reminding her that she could not leave children with persons who had not undergone background screening. The letter noted that neither Ms. Edwards' mother nor "Wayne" had undergone background screening. The adult male referenced in the complaints was Wayne Brueckman, who was residing in the Edwards home. On February 6, 1995, in compliance with the Department's letter, Ms. Edwards submitted the necessary information to initiate background screening on Mr. Brueckman, listed as a "Household Member" and "Sitter/Relief." Mr. Brueckman's background screening revealed no disqualifying information. Ms. Edwards was reminded of the statutory capacity limitations in person and in writing at least 11 times between September 1987 and June 1999. On at least five occasions, Ms. Edwards responded that she understood the capacity limitations. Nonetheless, Department employees personally observed violations of the capacity limitations on at least five separate occasions. By letter dated July 7, 1999, the Department gave Ms. Edwards an administrative warning that she would be subject to imposition of a fine if she continued to operate in violation of the statutory capacity limitations. On August 13, 1996, an abuse report was received by the Department that Wayne Brueckman sexually abused D.S., a three- year-old boy, in the Edwards home. The child had told his mother that Mr. Brueckman kissed his penis, put a "white thing" in his anus, and spanked him when he defecated in his pants. However, the child would not repeat his allegations to protective investigator Mae Cook, and an examining physician could find no physical evidence of sexual abuse. Mr. Brueckman denied the allegations. Ms. Edwards was interviewed by Ms. Cook concerning the August 13, 1996, complaint. Ms. Edwards denied any inappropriate activity and vouched for Mr. Brueckman as her friend of 20 years. Though she closed the file because she did not have sufficient evidence to confirm the allegations, Ms. Cook strongly suggested that children staying overnight not be allowed to sleep in Mr. Brueckman's room and that he not be left alone at any time with children, to avoid any repetition of such allegations. A repeated citation in the violation notices from this point forward was that Ms. Edwards would leave Mr. Brueckman alone with the children in her care for extended periods of time. Concerns regarding Mr. Brueckman were also raised during an investigation of another sexual abuse report received by the Department on November 18, 1996. This complaint involved Z.A., a three-year-old boy in care at the family day care home. The child told a story of some adult in the Edwards home rubbing his genitals, but his limited verbal skills made it unclear whether a man or woman did the touching. Wayne Brueckman and Marcia Edwards were both interviewed by the protective investigator and both denied any inappropriate activity. Again, there was no physical evidence to confirm the allegations. On February 5, 2001, the Department received an abuse report that W.W., a 19-month-old boy in care at the Edwards home, had bruises along his spine and arms, two large bumps on his head, and a patch of hair loss on the top of his head. Medical examinations by the Child Protection Team and the child's pediatrician determined the injuries were significant, inflicted and the result of physical abuse. The abuse report was called in by J.W., the divorced father of the child. W.W. lived with his father and his older sister in the home of J.W.'s mother. J.W.'s teenaged nephew also lived in the house. W.W. did not see his biological mother. J.W. worked as a chef, and left W.W. and his older sister at the Edwards home on evenings that he worked. The medical determination of the approximate time of injury indicated the injuries occurred either at the child's residence or the Edwards family day care home. When at his residence, W.W. was in his father's care. J.W. denied inflicting the injuries on his son, and discounted the possibility that anyone else living in his household might have done so. J.W. was certain that his son's injuries were inflicted at the Edwards home. W.W.'s older sister told investigators that "bad boys" at the Edwards home had inflicted the injuries on the boy. J.W. readily consented to the CAT Scan, eye examination, and clotting factor test recommended by the pediatrician. The father expressed concern about the supervision provided by the family day care home. He recalled several times in the past that when he came to pick up his children at night, he could look in the window of the Edwards home and see Mr. Brueckman sleeping. It required lengthy knocking and ringing of the doorbell to finally rouse Mr. Brueckman or anyone else in the home. Wayne Brueckman and Marcia Edwards were interviewed by the Protective Investigator. Both denied any inappropriate activity or failure to supervise. However, based upon the medical evidence, and multiple interviews including questioning of the children in attendance at the family day care home, the report was closed as verified. The Protective Investigator concluded that the child was injured by other children at the family day care home. The case determination found that Marcia Edwards and Wayne Brueckman inadequately supervised and neglected W.W. On February 22, 2001, while the W.W. case was being investigated, Ms. Edwards applied to renew her family day care home registration. Based upon the W.W. investigation, the Department issued a denial of registration on May 29, 2002. Ms. Edwards requested a formal administrative hearing to contest the denial of registration. The Department forwarded the matter to the Division of Administrative Hearings, where it was assigned DOAH Case No. 01-2840. A hearing was scheduled for September 19, 2001, in Fort Myers, Florida, before Judge Daniel S. Manry. Counsel for Ms. Edwards requested a continuance due to a scheduling conflict. Judge Manry granted the continuance and rescheduled the hearing for October 19, 2001. On October 12, 2001, the Department filed a motion to relinquish jurisdiction, accompanied by a settlement agreement between the parties. On October 15, 2001, Judge Manry entered an order closing the file in DOAH Case No. 01-2840. The settlement agreement required licensure of the family day care home, which would obligate the family day care home to comply with increased regulatory standards. One such standard prohibits the owner from working out of the home during the hours the family day care is operating. Rule 65C- 20.009(1)(a), Florida Administrative Code. In the settlement agreement, Ms. Edwards affirmatively recognized her on-going obligation to comply with all requirements of the Florida Statutes and Administrative Code applicable to family day care homes. The settlement agreement also provided that the Edwards home would receive a consultation by Child Care of Southwest Florida ("CCSWF"), a private, non-profit regional organization that, among many other services, provides training and technical assistance to home-based child care providers. This consultation would be at the Department's expense. CCSWF's consultant would assess the home's compliance with licensing standards and make suggestions as to implementation of best practices. The Department's experience has been that CCSWF's consultation, technical assistance, and training have proven successful in improving marginal child care providers. On December 17, 2001, Lisa Bledsoe, the infant/toddler coordinator for CCSWF, visited the Edwards home for the required consultation. Ms. Bledsoe rated the home based on the Family Day Care Rating Scale ("FDCRS"), an objective tool developed by the National Network for Child Care for the assessment of infant/toddler group care. The FDCRS consists of 32 items which assess the quality of center-based child care for children up to 30 months of age. This 32-item scale covers six categories: Space and Furnishings for Care and Learning, Basic Care, Language and Reasoning, Learning Activities, Social Development, and Adult Needs. Each item can be ranked from 1 to 7. A ranking of 1 describes care that does not even meet custodial care needs while a ranking of 7 describes excellent, high- quality personalized care. The Edwards family day care home received a cumulative score of 2.375 on the FDCRS. Deficits included a sterile and child-unfriendly interior, lack of interesting and colorful pictures and no pictures at child's eye level, insufficient opportunity for outdoor play, minimum hand washing requirements not met, diapers not checked regularly, failure to conduct regular fire drills, dim lighting, and insufficient activities to encourage language development. Ms. Bledsoe contacted Ms. Edwards to notify her the completed rating would be mailed to her. Ms. Bledsoe offered follow-up visits, technical assistance, and training classes for caregivers. Ms. Edwards rejected the offer of further assistance. While acknowledging that her recommendations were not mandatory, Ms. Bledsoe could recall no other day care provider rejecting additional help from CCSWF, which is provided free of charge. The need for Ms. Edwards to provide supervision at the family day care home and to be present was an important issue in the settlement of DOAH Case No. 01-2840. On October 10, 2001, prior to the signing of the settlement agreement, Ellen Blake, a licensing counselor for the Department, conducted a pre- licensing orientation and review at the Edwards home. Ms. Blake and Ms. Edwards had a lengthy discussion about supervision requirements. Ms. Edwards told Ms. Blake that she would be absent only when taking and picking her children up from school. She and Mr. Brueckman were sharing the care of the children. After obtaining licensure, Ms. Edwards appeared to be providing closer supervision of Mr. Brueckman. Ms. Edwards was present for six of the seven licensing inspections the Department performed between October 10, 2001, through June 18, 2002. However, testimony from Ms. Edwards' own witnesses established Ms. Edwards was readily available in the evenings to do extensive hours of volunteer work. Additionally, she transported her own minor children to after-school and weekend activities and was always available to transport other people's children to and from school and outside activities. Further, Ms. Edwards operated a photography business that often involved out-of-home shoots, including a large annual undertaking at St. Xavier School. Mr. Brueckman was left alone with children when Ms. Edwards was out of the home. Ms. Edwards' witnesses also established that she provides child care 24 hours a day, 7 days per week, which is a service not readily available in the community. The home is consistently well utilized, especially during the expanded hours. Mr. Brueckman was providing evening and night supervision, and slept in the same room as the children under his care. The Edwards have three minor children who often have multiple friends spend the night for sleep-overs. Neither the Edwards children nor their friends were restricted from access to the designated child care room. On June 13, 2002, the Department received an abuse report stating that Wayne Brueckman sexually abused D.S., a two- and a half-year-old boy in care at the Edwards family day care home. On June 20, 2002, during an interview with the Lee County Sheriff's Office, Mr. Brueckman admitted to inappropriately touching the child's penis and having the child touch his penis during diaper changes. Mr. Brueckman has been charged with two counts of felony lewd and lascivious molestation and is awaiting trial. Commission of sexual battery on a two-and-a-half-year- old child is a serious violation of the obligation of a child care provider to supervise a child entrusted to their care and for which they are receiving payment. Molestation of a child creates a great likelihood of actual or potential harm. Mr. Brueckman lived at the Edwards home and received only room and board for the continuous care he provided for the children of paying clients, as well as Ms. Edwards' three minor children and their numerous friends. Mr. Brueckman admitted to having had no dating or sexual relationships with an adult for over ten years. He had no private time and felt overwhelmed by his work situation. On June 20, 2002, the Department cited Ms. Edwards for a deficiency in supervision as she failed to meet the needs of children in her care due to Wayne Brueckman's molestation of D.S. The operator of a family day care home is ultimately responsible for the supervision of the children in care. Rule 65C-20.009(3)(a), Florida Administrative Code. Upon learning of Mr. Brueckman's actions, Ms. Edwards immediately evicted him from her house. To meet the requirement that she have a trained substitute caregiver in the home, Ms. Edwards designated her husband as her substitute in July 2002. As of the date of hearing, Mr. Edwards had not completed the required training. During the nine licensing inspections the Department performed between October 10, 2001 through July 1, 2002, various violations of minimum licensing standards were found, including: inadequate lighting in the playroom; failure to keep up-to-date immunization records; failure to keep on file the required enrollment information; ants on the kitchen table; home, furnishings, toys and equipment not kept clean and in good repair; incomplete first aid supplies; and hazardous materials (alcoholic beverages and protein shake mix) within a child's reach. Ms. Edwards corrected all these violations. The Department never sought to fine Ms. Edwards for any of the cited violations. By notice, dated August 14, 2002, the Department revoked Ms. Edwards' license based on the reasons delineated in the letter including past history, licensing inspections, the arrest of Mr. Brueckman for lewd and lascivious molestation of a child at the family day care home, and the ongoing failure to have a qualified substitute.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking the license of Marcia Edwards to operate a family day care home. DONE AND ENTERED this 5th day of February, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 5th day of February, 2003.
