The Issue Whether the Agency for Persons with Disabilities (APD) properly denied the application for licensure renewal sought for the group home facility license held by Tracy Court Group Home, owned and operated by V-Agape, LLC.
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habitation centers pursuant to section 20.197 and chapter 393, Florida Statutes. At all times material to this complaint, Respondent held foster or group home facility licenses issued by APD. The current group home license issued for V-Agape, LLC, located at 19103 Tracy Court, Lutz, Florida 33548, is owned by Tonya Nelson, the sole managing member. Respondent has contracted with APD to provide the residents with Medicaid waiver developmental disability residential habitation services. HCSO conducts investigations of reports of abuse, neglect, abandonment, and threats of harm to children on behalf of DCF. Investigations of abuse, neglect, abandonment, and threats of harm are initiated by reported incidents through the Florida Abuse Hotline. Karen Gonzalez is the supervisor of the Specialized Investigating Unit. She supervises the CPIs who perform the abuse hotline investigations. Ms. Gonzalez supervised Robert Hoon and Jennifer Campbell, both CPIs. A report was made to the Florida Abuse Hotline on January 24, 2014, that a minor female resident of Respondent’s Tracy Court Group Home sustained bruising and a red mark on the back of her hand from being struck on her hands by Tonya Nelson. The resident is non-verbal and intellectually disabled. The subsequent investigation by CPI Hoon, on behalf of DCF, was ultimately closed with verified indicators for physical injury upon the minor resident living in the Tracy Court Group Home, but did not identify the caregiver responsible. CPI Hoon reviewed and discussed the investigation with Supervisor Gonzalez before he prepared the Investigative Summary (IS). When conducting investigations, the CPI reviews the prior history of incidents reported on a group home and its owner/operator. In subsection “D. Prior Reports and Service Records Implications for Child Safety,” CPI Hoon reported that: There are prior reports on the facility that include concerns for physical discipline in the foster home and to her o[w]n children. There is a verified report in 2012 for physical injury and the aps [adult perpetrators] where [sic] Tonya Nelson and the aunt as it is unknown who caused the injuries. Ms. Gonzalez testified that prior reports are reviewed in conducting their investigations to determine whether a pattern of concern for the health and safety of the children placed in that home and for the caretakers caring for the children in the home exists. The CPIs utilize DCF Operating Procedure (CFOP) 175-28, Child Maltreatment Index, as a guideline in conducting their investigations. A “verified finding” is made when a preponderance of the credible evidence results in a determination that the specific harm or threat of harm was the result of abuse, abandonment, or neglect. CPI Campbell explained the application of CFOP during an investigation: [I]t . . . breaks down the different maltreatments that are investigated under the umbrella of abuse, neglect, and abandonment, and it provides a guideline for the definitions of what the different maltreatments are, and the different types of supporting evidence and documents that may be needed when supporting a maltreatment when the investigator comes up with the findings. It’s basically a guideline for investigations, because when a report comes in it may not be just one maltreatment, there may be a number of different maltreatments; or an investigator may identify a maltreatment during the course of an investigation, and so this provides a guideline for the investigator. On May 20, 2014, a report was made to the Florida Abuse Hotline about a minor resident of Respondent’s Tracy Court Group Home. An investigation was commenced concerning unexplained bruises observed on the resident, a vulnerable minor. CPI Campbell completed the investigation and prepared the IS. She discussed the verified findings with Supervisor Gonzalez. CPI Campbell is an experienced investigator, having had 11 years of service with HCSO following five years’ experience as a CPI in Michigan. The report of May 20, 2014, was a “Supplemental” report since, according to Supervisor Gonzalez, it came in right after the initial risk sequence. Rather than creating an entire new report, this one became supplemental to the prior one. The IS stated that the resident had a large bruise on her left thigh and bruises on her left arm and the back of her leg. Ms. Nelson was not able to explain how the minor resident sustained the bruises on her leg and arm. CPI Campbell became involved with Ms. Nelson and the investigation of the group home when Supervisor Gonzalez gave her the task of completing the investigation initiated by CPI Krisita Edwards. At the time CPI Campbell took over the investigation, CPI Edwards had been assigned to other duties. CPI Campbell explained that it was not unusual for a second investigator to complete work begun by another since all their notes are kept on a central database known as the Florida Safe Families Network (FSFN), where all contacts are noted, as well as the investigative summary. CPIs Edwards and Campbell collaborated on the investigation in this case. CPI Edwards entered her initial findings in the FSFN, which was picked up and continued by CPI Campbell when she took over the case. The two CPIs have collaborated on other cases in a similar fashion. The initial documentation by CPI Edwards was performed within 48 hours of the call coming into the abuse hotline as required. CPI Campbell’s completion of the report and investigation occurred after she had spoken with CPI Edwards and discussed the matter with Supervisor Gonzalez. The result of the investigation concerning the bruises on the minor resident was that the bruises were “indeterminate for physical abuse” and “indeterminate for supervisory neglect” due to the fact that a specific cause of the injuries could not be determined. Further, since the minor resident had been removed to another group home, the report concluded that there existed no continuing threat to the resident’s well-being. Even though the resident had been removed from the Tracy Court Group Home and, therefore, was not in any danger of being further harmed, CPI Campbell continued to have serious concerns about the care of residents in the group home. She believed that several allegations of the same type of harm were being made in the group home and that they could not ask the resident how she received her injuries since she was non-verbal. Myra Leitold, an APD residential licensing supervisor, had monitored the Tracy Court Group Home for the previous nine and one-half years. On December 28, 2012, she observed that a door lock to the office and bedroom was keyed so that it could be readily opened from the inside which, she believed, created a safety hazard. Between December 2012 and August 2014, the group home was cited for ten violations of Medication Administration Procedures. On one of her visits, in December 2012, Ms. Leitold noted that no current prescription was present for one of the residents, and that the label on the prescription bottle did not match the prescription drugs inside the bottle. Additionally, she found that the accounting for one of the resident’s finances was not current and that the temperature inside the group home was a chilly 65 degrees Fahrenheit. Mitchell Turner, human services program specialist for APD, recorded numerous medication administration violations at the group home. He noted on May 30, 2013, that the medication prescriptions and instructions for the Medical Administration Record (MAR) did not match. On June 18, 2013, he discovered that the wrong dosage of prescription was being given to a resident, and Ms. Nelson admitted this mistake. Mr. Turner grew so concerned about the prescription irregularities that he requested Pamela Lassiter, a medical case management registered nurse, to review the group home. Nurse Lassiter was sent to the home where she discovered and cited the home for three additional prescription violations. Even following Nurse Lassiter’s visit, on another trip to the group home on April 9, 2014, Mr. Turner cited an additional MAR violation. He believed these violations posed a health and safety risk to the residents affected and exhibited a pattern of neglect by Respondent to the health and safety of vulnerable children. During the period when prescription and other violations were noted, on January 11, 2013, Ms. Nelson exceeded the maximum licensed capacity of three in the group home when she accepted a fourth resident. She did not have prior written approval from APD to exceed her licensed capacity of residents. On September 25, 2013, Mr. Turner issued a Notice of Non-Compliance (NNC) because Ms. Nelson again exceeded the licensed capacity for the number of residents in the group home without prior written approval from APD. Mr. Turner expressed his concerns over the repeated violations by Respondent. Ms. Nelson testified that she had received verbal approval for the placements in excess of the home’s licensed capacity from Meisha Stewart, residential placement coordinator for APD, and that on a prior occasion in 2012, she had accepted a resident after receiving verbal approval. This testimony was rebutted by both Geraldine Williams, the former regional operations manager for APD’s Suncoast Region, and Ms. Leitold, who testified she had never known APD to give verbal approval for a placement of a resident in a group home. With the high volume of referrals APD makes to group homes, they cannot operate in a system where verbal placements occur. All placements must be made in writing. When a provider receives a NNC, the provider is required to submit and successfully complete a Corrective Action Plan (CAP). Mr. Turner testified that Ms. Nelson did not submit or successfully complete a CAP for the MAR violations. On January 17, 2013, Ms. Leitold visited the group home and observed the following violations: volatile materials were not stored in approved metal containers and three prescriptions for a resident’s medications were not present. The gasoline, charcoal, and lighter fluid found by Ms. Leitold were required to be stored in approved metal containers. Keeping these materials in the open posed a safety hazard for the minor residents by giving them access to volatile materials. On November 4, 2014, Ms. Nelson sent an email to Meisha Stewart advising her she intended to accept a non-APD client for placement in the Tracy Court Group Home without APD’s prior approval. Ms. Nelson testified that since that same resident had been placed in the Tracy Court Group Home for a six-month period in 2013, she believed she did not need a new approval in 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying V-Agape, LLC, d/b/a Tracy Court Group Home’s application for license renewal. DONE AND ENTERED this 6th day of November, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2015. COPIES FURNISHED: Brian F. McGrail, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Lindsey Ann West, Esquire The Plante Law Group, PLC 806 North Armenia Avenue Tampa, Florida 33609 (eServed) Gerald D. Siebens, Esquire Agency for Persons with Disabilities 1313 North Tampa Street, Suite 515 Tampa, Florida 33602-3328 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Respondent should be granted licenses to operate two residential group homes for developmentally disabled individuals.
Findings Of Fact On October 22, 1999, the Department issued to Community Opportunities, Inc., a temporary license to operate Skyline ("Skyline" or "Skyline Group Home"), a residential group home for developmentally disabled clients in Pasco County, Florida, which is located in the Department's Suncoast Region. Four months later, in February 2000, the Department issued a standard license to Community Opportunities, Inc. From February 2000 through early August 2002, Skyline Group Home operated under that standard license. In May 2002, the Department investigated an abuse complaint concerning a 21-year-old male resident at the Skyline Group Home who was diagnosed as mentally retarded with Intermittent Explosive Disorder. His past history included incarceration for attempting to stab his father and, while at Skyline, 14 behavior incidents ranging from exposing himself to violent behavior towards staff and other residents at the group home. On or about May 3, 2000, this resident, while a passenger in a van for the group home, took the vehicle's keys from the seat where they were left by a staff person, started the van, ran over the staff person twice, and ran the van into a house and a telephone pole, before being stopped. Following the Department's investigation, the report was classified as verified for inadequate supervision, caretaker present. The investigation referred to in paragraph 2 also found that the Skyline Group Home was inadequately staffed, with employees working for weeks at a time with no days off. At the time of the investigation, the van driver, who was injured in the incident, described in paragraph 2 had not had a day off for almost two months prior to that incident. On August 4, 2000, the Department met with representatives of Community Opportunities, Inc., due to safety issues with the operation of the group home. Following this meeting, on or about August 11, 2000, Skyline's licensure status was changed from standard to conditional. At that time, the Department requested that the facility submit plans of corrective action. On August 28, 2000, the Department investigated an abuse complaint concerning a mentally retarded, female resident of the Skyline Group Home. This resident was found walking on a gravel road with no shoes and dressed only in a nightgown. It was estimated that it would have taken 8 to 10 minutes to walk to the location where the resident was found. This elopement from the group home occurred 3 times in a three-hour period. As a result of the investigation, it was also learned that Skyline Group Home staff members were dropping off residents at school before teachers arrived, thereby leaving the developmentally disabled clients unattended. In addition, the investigation revealed that staff at the Skyline Group Home could not be reached during the day when emergencies or problems with medications arose, staff members failed to document significant events as required, and faxed requests for medication from the school to the group home went unanswered. This report was classified as verified for inadequate supervision and medical neglect. The investigation found systemic problems associated with the group home. Although the Department gave Community Opportunities, Inc., time to correct the problems, the problems were never corrected. As a result of those failed attempts, the Department closed the Skyline Group Home on September 30, 2000. On September 21, 2000, the Department sent a letter to Ernie M. Beal, Jr., Executive Director of Community Opportunities, Inc., notifying him that the license for the Skyline Group Home would not be renewed. Community Opportunities, Inc., did not challenge the Department's proposed action and two months later, the Department issued a Final Order affirming the denial of Community Opportunities, Inc.'s, relicensure. The reasons for nonrenewal of Skyline's license included the facility's failure to maintain adequate staff at the group home; failure to take reasonable precautions to assure that the residents were not harming themselves or others; incidents involving injury to staff; inadequate corrective action plans to address deficiencies; and numerous violations of the licensure standards under Rule Chapter 65B-6, Florida Administrative Code. On or about September 12, 2002, the Department received licensure applications for two developmentally group homes, Skyline Group Home in Dade City, Florida, and Harvill Group Home located in Lithia, Florida, both of which were located in the Department's Suncoast Region. The applications were submitted by Your Friends & Neighbors of Florida, Inc., and signed by Pamela Beal, Chief Executive Officer ("CEO"). Ernest Beal, Jr., Chief Operating Officer, was listed on both of the applications as the person who would operate and supervise the facilities. Your Friends & Neighbors of Florida, Inc. is a non- profit corporation. Ernest M. Beal, Jr., is its president and Pamela Beal is its vice-president, secretary, treasurer, and CEO. The Board of Directors of Your Friends & Neighbors of Florida, Inc., is comprised of Pamela Beal and Ernest Beal, Jr., and Felicity Lennox, who was also on the Board of Directors of Communities Opportunities, Inc. Ernest M. Beal, Jr., is the president and CEO of PEJUS, Inc., which on January 1, 2000, purchased the assets of Community Opportunities, Inc. PEJUS, Inc., then conveyed its interest in the former Community Opportunities, Inc. to Your Friends & Neighbors, Inc. Qualification documents for Your Friends & Neighbors of Florida, Inc., were filed with the Secretary of State on or about January 29, 2001, and the corporation was authorized to transact business in Florida on that date. Petitioner's, Your Friends & Neighbors of Florida, Inc.'s, corporate office is at the same address as Community Opportunities, Inc., located at 1515 Magnavox Way, Fort Wayne, Indiana. Moreover, when calling Your Friends & Neighbors of Florida, Inc.'s phone number, one is greeted by a recorded message which states the names Your Friends & Neighbors, Inc., Community Opportunities. Inc., and PEJUS, Inc. Your Friends & Neighbors, Inc., is an Indiana corporation founded in 1985 by Ethyl Beal and Pamela Beal. Community Opportunities, Inc., is an Indiana corporation owned by Ernest Beal, Jr., which owned the Skyline Group Home in September 2000, when the license for Skyline was not renewed. The two applications for licensure submitted by Your Friends & Neighbors of Florida, Inc., on September 12, 2002, were almost identical to the application for the Skyline Group Home submitted by Community Opportunities, Inc., in July 1999. There were no significant differences in the 1999 application and the 2002 applications. In fact, the services to be provided, the program description, and the staffing pattern were almost identical. Notwithstanding these similarities, the applications submitted in 2002, proposed to serve clients with developmental disabilities more severe than those served at Skyline Group Home pursuant to the 1999 application. By letter dated October 2, 2002, the Department notified Pamela Beal, CEO of Your Friends & Neighbors of Florida, Inc., that the licensure applications had been denied. The notice cited all the reasons the Department did not renew Skyline's license in September 2000. Those reasons included the incident involving the vehicle resulting in injury to staff; neglect of the residents; failure to correct problems through corrective action plans; insufficient staffing ratio; lack of reasonable precautions to ensure residents' safety; failure to ensure timely medical treatment to residents; and failure to properly report injuries. Despite the violations cited in the notice of denial, at the final hearing, the Department clarified that its concern with the subject applications was not with the direct care staff, but with the fact that the proposed model would not meet the needs of the clients with developmental disabilities that Petitioner wanted to serve.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a Final Order confirming the decision not to issue Petitioner's group home licenses for Skyline and Harvill. DONE AND ENTERED this 30th day of April, 2003, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2003. COPIES FURNISHED: Pamela J. Beal 1515 Magnavox Way Fort Wayne, Indiana 46804 Ernie Beal, President Your Friends & Neighbors of Florida, Inc. 4505 Club House Drive Marietta, Georgia 30066 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 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
Findings Of Fact In May, 1979, Petitioner submitted to Respondent an application for a license to operate a retardation group home facility at 4134 San Seviera Lane, Orlando, Florida. By letter of July 27, 1979, Respondent's District VII Administrator, Lucy D. Hadi, advised Petitioner of the denial of her application due to her "inability to comply with the standards as set forth in 10F-6.10, Florida Administrative Code." The letter further advised Petitioner of her right to a hearing under Chapter 120, Florida Statutes and Petitioner thereafter appealed the decision and requested a hearing in the matter. (Petitioner's Exhibits 5-6) Prior to filing her application for licensure, Petitioner had operated a retardation facility at her residence for more than three years. The facility was originally operated under the supervision of an organization called the Children's Home Society, but in January 1977 the home came under the supervision of Respondent. For a five-year period prior to operation of the residential facility, Petitioner was employed at a Sunland Training Center in Orlando where she served as a supervising aide in charge of a ward for mentally retarded children. (Testimony of Petitioner, Petitioner's Exhibit 5) During the period 1977-1979, Petitioner had operated as an "approved" residential facility under contract with Respondent, and was subject to standards set forth in the agency's written policy concerning the community residential placement program. In 1977, Chapter 393, Florida Statutes, was amended to require licensure of such facilities, thus prompting Petitioner's application. New standards for licensure and operation of residential facilities were promulgated by the Respondent in 1978 in Chapter 10F-6, Florida Administrative Code. Although the new operating standards did not vary substantially from the existing policy guidelines, Respondent held several training sessions in February, 1979, to acquaint operators of currently approved facilities with the new provisions which would govern them when they became licensed under the new law. Petitioner attended these training sessions at which time the revised standards were explained, including a new requirement that agency approval had to be obtained prior to the acceptance of a private client by a residential facility. At that time, Respondent's policy standards related only to clients referred by tile agency and not to "private clients" who might reside in the facility under separate agreements with the parents. (Testimony of Petitioner, Hadi, Porta, Petitioner's Exhibit 4) On May 3, 1979, one of Respondent's supervisory employees conducted a pre-licensure inspection of Petitioner's home. Petitioner then had seven agency clients and two private clients residing in the facility. Respondent's inspector advised her that agency approval would be required to accept private clients after receiving a license. Petitioner acknowledged this requirement and told the inspector that she would not take such clients without the approval of the HRS program supervisor. The inspector found several minor deficiencies including insufficient square footage and baths for the number of individuals residing in the home. However, Petitioner was in the process of building an addition to the home at that time which would meet the program requirements as to physical facilities. The new agency rules also required that a prospective licensee have sufficient available financial capital or income to operate the facility for a sixty-day period without depending upon agency client fees or payments. Although Petitioner signed a form statement attached to her application stating that she had sufficient capital for the required sixty-day period, she did not complete the various items showing expenses and income as required in the form. She did, however, enclose a separate budget showing various expenses of operating the facility which were not later challenged by the agency. In addition, the reverse of the application form reflected that proof of financial ability to operate the facility could include such a budget showing that anticipated expenses did not exceed reimbursement, and also providing that sufficient capital could include any credit available to the applicant. Petitioner owns her home which presently has a market value of $52,000, with an outstanding mortgage of$16,000. (Testimony of Petitioner, Porta, Petitioner's Exhibit 5) On July 9, 1979, while her application was pending, petitioner accepted a private client, Curtis Duncan, for a brief period while his parents were on vacation. Curtis was a six year old hyperactive child with cerebral palsy. He was unable to walk and had limited control of head movement. Petitioner did not advise Respondent's personnel of his presence in her home because she viewed it as merely a temporary "baby sitting" job which did not involve an agency client. On Tuesday, July 10, she sent the child-to his regular school for the profoundly handicapped. That evening, while Petitioner was feeding him, he grabbed her arm and, as Petitioner pulled her arm free, his head struck the flat edge of the round table. The blow caused a knot to rise in the middle of his forehead and Petitioner applied an ice pack to reduce the swelling. The boy seemed to have no after effects from the injury. Petitioner sent the child to school the next day. Her mother, a staff member of the group facility, advised the school nurse about the incident and the nurse indicated that the child appeared at school frequently with bruises. Although it was discovered at school that he had a 102 temperature, school authorities were not alarmed because he had a history of frequently having high temperatures. Petitioner took the child's temperature again when he returned from school and found it to be normal. She kept him home from school on Thursday in order to observe him. In the afternoon while Curtis was in the home's multipurpose room in his chair, Petitioner heard him making noises and saw another child leaving the room. Petitioner observed that Curtis's eye had been lacerated and that a hair brush was on the floor. She concluded that the other client must have hit Curtis with the brush because he had done so before to other children. Curtis, however, seemed to have no after effects from the injury and had a good appetite that evening. On Friday, July 13, Petitioner planned to send the boy to school. While her daughter and mother were feeding Curtis that morning, the boy jerked his head back and appeared to have trouble breathing The daughter informed Petitioner who was talking to a visitor in another room in the house. When Petitioner entered the other room, she observed Curtis on his back on the foam rubber mattress on the floor where he slept. He had food in his mouth and she at first believed that he had choked on it. She immediately began administering standard resuscitation methods and had her mother call the emergency rescue unit. It arrived a few minutes later and after paramedics had manipulated the boy by hitting him on the back and tossing him in order to dislodge a supposed object in his throat, and after further resuscitation efforts, he was taken to Orlando General Hospital and thereafter transferred to the Orlando Regional Medical Center. Petitioner had advised the child's grandmother the previous day concerning the bruise received on Tuesday because she did not know where the parents were located at the time. After Curtis was taken to the hospital, Petitioner picked up the grandmother and took her to the hospital. On July 14, 1979, the child died at the hospital. The death certificate showed the immediate cause of death as bilateral subdural hematoma due to or as a consequence of blunt head trauma, and the death was categorized on the death certificate by the Associate Medical Examiner of Orange County, as a probable homicide. On July 17, 1979, Respondent's personnel removed the other children from Petitioner's facility and transferred them to other residences pending investigation of the death by its personnel and by Orange County law enforcement authorities. (Testimony of Petitioner, Weir, Kessler, Respondent's Exhibits 1-4) The medical examiner who determined the cause of death had conducted an autopsy of the deceased child on July 15, 1979. Although he found a number of specific areas of trauma consisting of contusions, lacerations and abrasions on the body, he is of the opinion that death could have resulted only from either of two contusions on the forehead or one which encircled the right eye. He estimated that each of the three injuries had been inflicted within five days prior to date of death. At the hearing, the medical examiner testified that manifestations of the death inducing trauma from subdural hematoma were fever, headaches, sensitivity to light, irritability, nausea, lethargy, and inability to swallow. He was of the opinion that the contusions on the forehead probably were not Self-inflicted because they were in the frontal rather than the occipital area. He further questioned whether the wound on the right eye could have been caused by a hair brush and was also of the opinion that the contusions on the forehead would have required the head to have hit a flat table top twice, but were not consistent with blows on a table edge. He acknowledged that the head of pediatrics at Orange Memorial Hospital had-seen the child when brought to the hospital and had been of the opinion that there had been no child abuse. (Testimony of Kessler, Respondent's Exhibits 1-4) The Orange County Sheriff's Department and the Office of the State Attorney of Orange County investigated the circumstances surrounding the death of Curtis Duncan in view of the stated probable cause of death in the death certificate as homicide. No charges have been filed however, and the case is listed as "open" in the files of the state attorney. (Testimony of Jaeger) Subsequent to the death of the child, three of Respondent's District VII personnel were appointed to conduct an administrative inquiry. On July 24, 1979, they interviewed Petitioner and her mother at their home. Based on these interviews, and information derived from various files of the Respondent concerning members of Petitioner's family, the committee prepared a "social summary" or report concerning the background of Petitioner and various members of her family. Petitioner, who was born in 1930, together with her mother and sister, had been subject to abuse in her childhood by her father who had been a heavy drinker. Petitioner had been sexually abused by her father and, at an early age, she contracted a venereal disease from an intoxicated physician whom the father had brought home to treat the two girls when they were ill. After this incident, Petitioner and her sister lived in a children's home for three years. The mother then moved with the girls from Arkansas to Florida in 1944 or 1945. Petitioner was married twice and her second husband was physically abusive to her and her children. She divorced him in 1970 or 1971 at which time she commenced employment at Sunland. During one period of her first marriage, Petitioner's father had come to Florida to live with her, but was abusive toward her children, thereby causing her husband to insist that he leave. Petitioner told the interviewers that on one occasion when she was a child, she attacked her father with a poker after becoming angry about his mistreatment of her mother. A "district intake specialist" in Respondent's District VII Children's Youth Program Office was qualified as an expert at the hearing to testify concerning the sociological of concept known "abuse syndrome" which draws aspects a as upon a body of information developed through research projects concerning various aspects of child abuse. This term is defined as an evolutionary process by which adults who were denied "positive developmental experience" as children, are inclined to compulsively apply negative experiences in the form of mental, physical, or sexual abuse to their children or to children in their care. It proceeds under the theory that parents who were abused as children are not always able to control their emotions and sometimes react to frustrations incident to child rearing by violent acts directed to the child. These individuals are said to have a history of marital problems and generally seek a spouse who is violent. Such individuals do not know how to handle minor crises involving children and are apt to react excessively in minor incidents. This course of conduct can be of a continuing or latent nature. Many abused children are those with special needs such as the emotionally or physically handicapped who need special attention. There is a pattern of formerly abused individuals to seek foster children or employment in daycare centers in an effort to assist them and compensate for their own problems. Therapy administered by social or mental health workers in the form of counseling is generally required to alleviate the underlying problems of those subject to the syndrome. Respondent's expert is of the opinion that Petitioner's family and social background presents a typical abuse syndrome situation. Respondent's District VII Protective Services supervisor who deals on a constant basis with child abuse and neglect cases has found that some 90 to 95 percent of her cases show the existence of the abuse syndrome. However, no statistics were offered into evidence as to the number or percentage of persons who were abused as a child who later inflicted abuse themselves. (Testimony of Ivancevich, Haase, Brewer, Respondent's Exhibit 4) Respondent's denial of Petitioner's application for license on July 27, 1979, was based in part upon the recommendations of Respondent's Developmental Services supervisor who had served on the committee of inquiry. He recommended denial solely because of the Duncan incident. Specifically he found that the child had not received HRS permission to be in Petitioner's home, and that Petitioner had improperly handled the "emergency" situation by not obtaining medical treatment at the outset Of the child's injuries. The overriding factor in his recommendation, however, was that the circumstances of the child's death had not been fully ascertained and that therefore, in the interest of protecting child welfare, it would be unwise to approve Petitioner's application until such time as a final determination is made. He conceded that Petitioner's background had played a part in his recommendation. He also acknowledged that permission was routinely granted by the agency for a facility to take in private clients if it did not interfere with the adequacy of the facilities or the capabilities of the staff. Respondent's District VII administrator, who made the final decision of license denial, acknowledged that Petitioner had had a good record as a facility operator prior to the Duncan incident with no complaints or indications of abuse or neglect of her clients. She based her decision on the staff reports received concerning the Duncan incident and the manner in which it was handled by Petitioner. She was unaware however, that the school nurse had been notified of the child's initial injury on Tuesday, July 10 and conceded that although she believed Petitioner should have called a physician concerning the matter, admitted that the nurse should have done so also. She was also concerned that Petitioner had not resorted the boy's injuries or removal to the hospital to the agency. She was of the opinion that the fact of an unsolved homicide reflected unfavorably upon the character of Petitioner and thus the suitability of her home for client placement. Although certain questions were raised concerning Petitioner's financial ability to operate a home for the required sixty-day period, the district administrator acknowledged that she was unaware of the extent of Petitioner's financial resources. (Testimony of Brewer, Hadi, Petitioner's Exhibit 6) The principal of the school which Curtis Duncan had attended since 1976 observed that he exhibited self-destructive behavior and would frequently bite his shoulder, index finger, and thumb. He would grab at things and sling his head back and forth in all directions. On occasion, he would strike his head against an object. In one instance he had pulled his chair on top of him which struck his head. He also would lunge forward while being fed. His parents had reported to the principal that he had displayed this type of behavior at home also. He had exhibited bruises at school in the past. The chair in which he sat had a harness and, if it was not secure, he could throw himself out of the chair. On Wednesday, July 11, while at school, the principal observed that Curtis ate in a normal manner and apparently had no discomfort from the injury he had received on the prior evening. (Testimony of Weir) A pediatrician who had treated Petitioner's clients for various ailments for about three years never observed any indication of abuse or neglect of the children. Petitioner's supervisor at Sunland for a period of two years considered that Petitioner was extremely responsible and provided excellent care for the children at that facility. She found Petitioner to be quite capable in handling emergencies and never exposed any child to injury. The supervisor gave Petitioner outstanding performance evaluations during this period and attested at the hearing to her good character. Similarly, several operators of residential facilities in the Orlando area testified at the hearing as to their knowledge of Petitioner and as to her excellent qualifications and reputation in the community. The mothers of two handicapped children who have lived in Petitioner's facility both as HRS and private clients, and who are very difficult to handle, testified concerning their extreme satisfaction with Petitioner's care and ability to manage the children in a highly successful manner. Respondent's facility has been the subject of unannounced inspections by Respondent's personnel in the past and it was always found that the children were receiving excellent care and supervision. (Testimony of Cuevas, Brainerd, Oliver, Marini, Willett, Hopkins, Goins, Petitioner's Exhibit 3)
Recommendation That Petitioner's license application for a group home facility pursuant to Chapter 393, Florida Statutes, be approved. DONE and ENTERED this 5th day of February, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Department of Health and Rehabilitative Services Attn: George Waas, Esquire 1317 Winewood Boulevard Tallahassee, Florida 32301 Dennis L. Salvagio, Esquire 22 East Pine Street Orlando, Florida 32801 Douglas E. Whitney, Esquire Department of HRS District VII Counsel Room 912 - 400 West Robinson Street Orlando, Florida 32801
The Issue The issue is whether Respondent should be subject to administrative penalties, up to and including revocation of its group home license, for non-compliance with the residential facility requirements of Chapter 393, Florida Statutes (2007).
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habilitation centers. Respondent holds a group home facility license. The group home is located in Lake City, Florida. Ms. Amanda Houston is the operator of the group home. Ms. Houston is responsible in that capacity for compliance with statutes and rules relating to residential facilities. At all times material here, A.D. was a vulnerable 17-year-old female who resided at the group home. A.D. is mentally retarded and has significant behavior issues. Ms. Nigeria Taiwan Wills was a trusted employee of the group home for four or five years. On October 8, 2008, Ms. Wills was responsible for the supervision and care of the group home's disabled residents. On October 8, 2008, Ms. Wills began her shift at 2:00 p.m. and worked until 8:00 p.m. During at least part of that time, Ms. Wills was the only staff member present in the home. On October 8, 2007, while under the supervision of Ms. Wills, A.D. suffered significant injury to her buttock area. The next morning, Ms. Houston arrived at the group home around 6:30 a.m. Ms. Houston woke A.D. who dressed herself. Ms. Houston gave A.D. her medications. Ms. Houston did not notice any difference in A.D.'s demeanor. A.D. seemed normal in every way. The group home had four residents. Three of the clients, including A.D., rode a bus to school. On October 9, 2009, the bus arrived to pick up the clients at 8:10 a.m. It left the facility at 8:20 a.m. Ms. Houston was not aware of A.D.'s injury before the bus picked her up. On October 9, 2008, Ms. Wills visited the group home around 11:00 a.m. to pick up a piece of paper that she had left there the night before. While at the group home, Ms. Wills casually mentioned to Ms. Houston that she had an incident with A.D. the night before, that it was no big deal, and that she would tell Ms. Houston about it when she returned to work her shift that evening. Ms. Wills then left the group home. Ms. Wills did not have a home phone. All supervisory employees of the group home are trained to keep notes during every shift to record chronologically all events occurring at the group home. If an injury of any kind occurs, an employee is supposed to immediately fill out an incident report and call Ms. Houston. Ms. Houston knew that Ms. Wills had not filled out an incident report the night before. Ms. Houston read Ms. Wills' notes from the night before and, finding no reference to an incident with A.D., mistakenly assumed that whatever had happened truly was no big deal. This was not an unreasonable conclusion given Ms. Wills' long-term employment with no complaints and A.D.'s history of stealing and other behavior problems. In the mean time, Ms. Lanitra Sapp, a child protective investigator for the Department of Children and Family Services, received a call from A.D.'s school. Ms. Sapp subsequently visited the school, interviewed A.D., and observed bruising to her buttocks and upper thigh. Ms. Sapp concluded that the bruising was consistent with physical abuse. Ms. Sapp then took A.D. to her office. When A.D. did not get off the bus after school, Ms. Houston called the school, A.D.'s mother, and A.D.'s waiver support coordinator. Ms. Houston was unable to locate A.D. until she received a call from Ms. Sapp, asking Ms. Houston to go to Ms. Sapp's office. At Ms. Sapp's office, Ms. Houston and her husband, Adam Houston, first learned about A.D.'s injury. Mr. and Mrs. Houston were shocked at the degree of A.D.'s injury as reflected in photographs. After a short meeting, A.D. voluntarily rode with the Houstons to the group home. Ms. Sapp followed in her car. When the Houstons and Ms. Sapp arrived at the group home, the police were already there. Ms. Wills was also there. Ms. Houston left A.D. in the car with Mr. Houston before going into the group home. Ms. Wills talked to the police and Ms. Sapp in separate interviews. At some point, Ms. Wills told the police that she had spoken to Ms. Houston about the incident that morning. Ms. Houston admitted to the police and Ms. Sapp that Ms. Wills had made a reference to an incident that morning. Ms. Wills never admitted that she spanked A.D. with a belt. Ms. Houston placed Ms. Wills on administrative leave just before the police handcuffed her and took her to jail. Immediately thereafter, Ms. Houston prepared and sent an official incident report to Petitioner and A.D.'s waiver support coordinator. A.D. wanted to remain at the group home. Her mother and waiver support coordinator agreed. A.D. remained in that environment until March 2008, when Respondent lost its status as a Medicaid waiver provider. Ms. Houston never let Ms. Wills return to the group home. Instead, Ms. Houston paid Ms. Wills for one week of earned wages and one week of vacation time. This was the final pay check for Ms. Wills. Within days, Ms. Houston took A.D. to see her pediatrician for a medical evaluation. A week or so later, Ms. Sapp took A.D. for an evaluation by the Department of Children and Family Services child protection team. The Department of Children and Family Services subsequently issued a report containing verified findings of failure to protect against Mr. and Ms. Houston and maltreatment/physical injury against Ms. Wills.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that Respondent's license is not subject to discipline for failure to protect. DONE AND ENTERED this 29th day of October, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2008. COPIES FURNISHED: Julie Waldman, Esquire Agency for Persons with Disabilities 1621 Northeast Waldo Road Gainesville, Florida 32609 Lloyd E. Peterson, Jr., Esquire 905 Southwest Baya Drive Lake City, Florida 32025 John Newton, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 James DeBeaugrine, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner is entitled to a Foster Home License.
Findings Of Fact Petitioner, Marion Hanes, had for a number of years been granted custody of two very troubled female foster children by a Pennsylvania court. Ms. Hanes grew to care a great deal for these two foster children and while they were in her custody helped the two children feel loved and cared for. When Ms. Hanes and her husband moved to Florida, she asked the court to grant her permission to take the girls to Florida to live with her and her husband. Because of Ms. Hanes' good care of these children and the desires of Ms. Hanes, the children, the Pennsylvania social service agency and the Pennsylvania court, in order to maintain a consistent environment for these children, the court granted Ms. Hanes permission for the girls to live with her in Florida. After arriving in Florida, Petitioner discovered that the girls' Pennsylvania Medicaid cards would not be accepted by Florida Medicaid providers. Therefore, in order to obtain school and medical services for her foster children in Florida, Ms. Hanes had to obtain Florida Medicaid cards for her charges. In pursuit of the Medicaid cards, Ms. Hanes was informed that she would have to have a foster home license for the home in which the girls would be living. Ms. Hanes made application to the Department of Health and Rehabilitative Services for a Foster Home License for her residential home located at 1015 Edison Drive, Pensacola, Florida. The home is located in a middle-income residential area and is an ordinary brick house resembling the other homes in the neighborhood. The front bedroom windows in the house measure 15 inches in height and 34 inches in width. The bottom of the windows are approximately 46 inches off the ground. The children in Ms. Hanes' care would occupy one of the bedrooms with the 15 by 34 inch windows. On June 24, 1991, Robert Herron, Fire Prevention Specialist and licensed Fire Inspector inspected the Petitioner's home located at 1015 Edison Drive. The purpose of the inspection was to determine whether the residential home met fire safety requirements applicable to houses which will serve as foster homes. The Fire Inspector testified that the Department's long-standing, statewide policy was to require that foster homes meet Chapter 22 of the NFPA 101 Life Safety Code. The NFPA 101 Life Safety Code, Chapter 22-2.21(b), requires that windows in a residential home have a clear opening of not less than twenty-four (24) inches in height and twenty (20) inches in width, with the bottom of the opening not less than forty-four (44) inches above the floor. Mr. Herron further testified that exceptions for good cause had been granted to the window size requirement, but only when a window's dimension varied by one or two inches. The Hanes' windows were denied an exception. The Life Safety requirement has not been adopted by HRS as a rule. Nor has the Life Safety requirement been adopted as a rule applicable to residential or foster homes by the State Fire Marshals office. Additionally, the evidence did not show that the Life Safety requirement has been adopted by any local building authority which would have code authority over the Hanes' home. The agency did not put on any evidence which would demonstrate the reasoning behind this unadopted rule requirement. Mr. Herron's inspection of the Hanes's home revealed that the bedroom windows in the Hanes' home did not meet the NFPA 101 Life Safety Code standards. Specifically, the fifteen (15) inch height of the windows was short by nine inches from the NFPA Life Safety Code's standard. Importantly, the evidence did not show that the Hanes' home was unsafe. In fact, the better evidence in this case demonstrates that the Hanes' home presents a safe and secure environment for the Hanes and the foster children and the windows in their present condition appear to be big enough to allow passage in an emergency. As of the date of the hearing, the Hanes had not increased the size of the bedroom windows to twenty-four (24) inches. Mr. Hanes stated the reason these windows had not been enlarged following Mr. Herron's inspection was because other neighborhood houses were similar in style to the Hanes' house and the esthetic changes were undesirable to the Hanes. More importantly, the evidence demonstrated that removing these foster children from Ms. Hanes' care would not be in their best interest and could cause more harm than good. Put simply, the needs of these children for a consistent and loving environment outweigh the need for strict compliance with an unadopted safety standard given the fact that the home is safe. Therefore, Ms. Hanes is entitled to a foster home license for her home located at 1015 Edison Drive, Pensacola, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: that the Petitioner's application for licensure as foster parents be granted. ENTERED this 9th day of August, 1993, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5134 The facts contained in paragraphs 1, 5 and 6 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 2, 3, 4 and 7 of Respondent's Proposed Findings of Fact are subordinate. 4. The facts contained in Petitioner's letter dated April 4, 1993, are adopted in substance, insofar as material. The characterization of Respondent's Proposed Recommended Order and testimony at the hearing are not ruled upon since no factual matters are involved. COPIES FURNISHED: Marion Hanes 1015 Edison Drive Pensacola, FL 32505 Christopher R. Hunt Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 8420 Pensacola, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
