The Issue Whether the Petitioner is eligible to enroll in the Developmental Disabilities Program administered by the Respondent.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes. The program developed by the Department is known as the Developmental Disabilities Program. Mr. Davis is a resident of Miami, Florida, and is 20 years of age. Mr. Davis submitted an application to the Department requesting that it enroll him in its Developmental Disabilities Program and provide him services as a developmentally disabled individual. The Department evaluated Mr. Davis's application and determined that he was not eligible to receive services through the Developmental Disabilities Program. In making this determination, the Department considered a Psychiatric Evaluation Summary dated August 18, 1998, that was prepared by J.O. Pagan, M.D. Dr. Pagan stated in the summary that Mr. Davis was "diagnosed early in his life as a child with Autistic characteristics," and he noted that, throughout his life, Mr. Davis has "had symptoms associated to hyperactivity, Tics, and perseverance behaviors." According to Dr. Pagan, Mr. Davis "diagnostically belongs in the Autistic Spectrum and more specifically to the Asperger's Syndrome." In evaluating Mr. Davis's eligibility for enrollment in the Developmental Disabilities Program, the Department also considered a Multi-Disciplinary Team Report prepared by the Division of Student Services of the Miami-Dade County public school system. Mr. Davis was a student in the Miami-Dade County public school system's Exceptional Student Education program, which provides appropriate education for students with disabilities. The Multi-Disciplinary Team Report was part of a required re-evaluation performed by school personnel in order to determine Mr. Davis's psycho-educational status. The report is based on a re-evaluation of Mr. Davis conducted on March 25 and April 1, 1998, when he was 17 years of age and an 11th grade student at Coral Reef Senior High School. It is noted in the report that Mr. Davis "has been diagnosed with Aspergers Autism and Bipolar Disorder" and that he was first evaluated by the Dade County Public Schools in May 1987, at which time he had medical diagnoses "including Attention Deficit Disorder, Pervasive Developmental Disorder and Affective Disorder Bipolar Type." The Wechsler Adult Intelligence Scale - Third Edition was administered to Mr. Davis during the 1998 re-evaluation. Mr. Davis obtained a Full Scale IQ of 100 on the Wechsler Adult Intelligence Scale, with a Verbal IQ of 110 and a Performance IQ of 89. The evaluator also noted in the Multi-Disciplinary Team Report that Mr. Davis "is capable of completing at least grade level academic work, yet his lack of attention and concentration often impede his progress. At present, his social skills remain underdeveloped." During his last two years in high school, Mr. Davis was classified as having the exceptionality of autism,2 and he was placed in a classroom for students with varying exceptionalities. The school system provided Mr. Davis with extensive and intensive services designed to assist him in making the transition from school to independent living and employment. The school system provided Mr. Davis with a one-on- one aide to work with him on his behavioral problems, and the school system's transition team worked with Mr. Davis to help him develop independent living skills. Mr. Davis has received training in computers and took courses at the Robert Morgan Vocation School in high-level computer programming. He graduated from Coral Reef Senior High School in June 1999. Although Mr. Davis was very successful in the program developed by the school system's transition team, he is now exhibiting some behavioral problems that he did not exhibit when he finished high school. He needs individualized support in order to live independently because his autistic tendencies are very strong, especially in the area of his behavior. Mr. Davis also needs services in the area of vocational training because his level of functioning is not yet high enough to permit him to seek employment. Mr. Davis has the potential to live independently and to be a productive member of society. He is, however, in need of community services in order to meet this potential. Mr. Davis applied to the state for vocational rehabilitation services but was denied these services because his IQ is too low.
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 denying the application of Jeffrey Davis for enrollment in the Developmental Disabilities Program. DONE AND ENTERED this 25th day of September, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2001.
The Issue Whether or not Respondent's denial of Petitioner's request for services from the Developmental Disabilities Program due to lack of General Revenue Funds is warranted.
Findings Of Fact Petitioner is a young adult who has cerebral palsy and mental retardation. On February 12, 2001, Respondent determined him to be eligible for services from the Developmental Disabilities Program and, as such, is determined to be a "client" of Respondent. Respondent provides services to those determined to be eligible ("clients") and who receive these services in their homes through a state funding category known as Individual and Family Support ("IFS"). In the instant case, Petitioner was requesting "diapers and adult day training." On June 1, 2001, Respondent directed a letter to Vladimir Vega c/o Ruth Vega which stated, in part: This letter concerns the following request for services. Diapers & Adult Day Training We regret to inform you, as a conclusion of law, that your request cannot be granted within the limits of the Department's appropriated general revenue funds, and Florida law prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.13(2)(c) and (d), F.S., and refer to the Spending Plan as approved by the Florida Legislature. Respondent's Policy Directive PD#01-03 advises that, [I]n 1999 and 2000, the Florida Legislature appropriated additional funding to be used to provide needed services for individuals who had been clients of the Department of Children and Family Services, Developmental Disabilities Program (formerly Developmental Services Program) as of July 1, 1999. To guide how the additional funding was to be spent, the Legislature approved a Spending Plan, which set priorities for spending by the Developmental Disabilities Program through June 30, 2001. This new money was appropriated to serve individuals who were clients of the Department and were waiting for services on July 1, 1999. Some of these individuals have waited many years for funding for services to become available. Therefore, the Department must, consistent with the mandate of the Legislature serve these individuals first. Between now and June 30, 2001, the Department will focus its efforts on completing this task. The Department will not be able to provide services to individuals who were not clients of Developmental Disabilities on July 1, 1999, until individuals who were clients are served. As a result of the application of Respondent's administrative directives, Petitioner, although determined to be an eligible "client," was denied services and placed on a waiting list. Exception is made and services provided for certain "clients" who became eligible after July 1, 1999, and are placed on the waiting list, if they were determined to be "in crisis" as defined by a criteria created by Respondent. Petitioner was determined not to be "in crisis." Achieving the "in crisis" category may be a meaningless, as only 10 "in crisis" clients receive services monthly statewide. Respondent presented two witnesses who testified regarding Petitioner's eligibility determination, Respondent's policies and procedures as they were applied to Petitioner, and that General Revenue Funds were not available to fund services for Petitioner. Their testimony is accepted as credible except as related to the lack of availability of General Revenue Funds; neither were qualified to present evidence regarding this subject. No other evidence of lack of availability of General Revenue Funds was presented. Petitioner's mother testified as to Petitioner's eligibility and that he is presently the resident of a funded residential group home facility, but offered no evidence of damages sustained as a result of the denial of services.
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 granting Petitioner's application for requested developmental disability services. DONE AND ENTERED this 29th day of July, 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 29th day of July, 2002. COPIES FURNISHED: Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Ruth Vega Qualified Representative 2017 Diamond Drive Orlando, Florida 32807 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner’s application to adopt a minor child should be denied because it is in the best interest of the child.
Findings Of Fact Respondent, in accordance with chapters 39, 63, and 409 Florida Statutes (2013),3/ is the agency tasked with, among other things, the responsibility to deny or approve adoption applications. The minor child was born in May 2013 and placed in Petitioner’s home in that same month.4/ At all times relevant to this case, the minor child’s biological parents were unable or unwilling to take responsibility for their child. Termination of parental rights was completed in October 2013. Petitioner is the minor child’s step-grandmother. Petitioner filed an application to adopt the minor child on November 25, 2013, listing her address as 4203 East Hanna Avenue, Tampa, Florida. A home study, which is an assessment of the potential adoptive parent’s home environment, parental capacity to support the child and the relationships with individuals both inside and outside the home of the potential adoptive parent, must be conducted prior to an adoption. On November 26, 2013, the home study was conducted at the Hanna Avenue address. Several areas of concern were noted in the home study; the home was cluttered and dirty with soiled dishes in the sink and fast food bags and wrappers throughout the home. On February 11, 2014, the AARC met to review Petitioner’s application to adopt the minor child. Petitioner was present at the AARC meeting. The following concerns were expressed during the AARC meeting: Petitioner’s monthly expenses far exceed her income; Petitioner has a criminal history and is currently on probation for the last offense, and served 10 days in jail in January 2014 without telling Respondent where she was and who was attending the minor child; Petitioner has significant health issues including congestive heart failure, diabetes, high blood pressure and a bulging disc in her back; Petitioner is legally married but has been separated from her husband for over 20 years without any knowledge of whether her husband is alive or dead; and there have been multiple abuse reports, although some indicators of abuse were not substantiated. Additionally, Petitioner has moved from the residence where the home study was conducted in November. That move to a different address invalidated the home study and another home study would have to be conducted to evaluate Petitioner’s current living situation. Petitioner’s expenses, as she detailed, far exceed her income. Petitioner receives approximately $820 a month in income, yet her living expenses include $800 rent, $150 in utility services, and $50 for water. Currently, Petitioner’s two daughters and their children (each daughter has a child) live with her in a three-bedroom home. Petitioner has her own bedroom. Each daughter has her own bedroom which is shared with her child. One daughter, (B), currently works at a hotel. Daughter B supplements Petitioner’s income to run the household. However, Daughter B has indicated she wants to move out. She has not given a specific move date. The other daughter, (M), was arrested in May 2014 for allegedly stealing electricity from Tampa Electric. The charge was dropped when Daughter M paid the electrical bill and court costs. That daughter is applying for a job but is without an income to support herself and her child at this time. Respondent does not consider income from persons other than the applicant in its review of potential adoptive parent’s application. In November 2010 Petitioner entered a plea of guilty to allegations of fraudulent use of a credit card and grand theft. The circuit court in Hillsborough County withheld adjudication of guilt, but placed Petitioner on 24 months of probation with the requirement to re-pay the money and all mandatory court costs. Petitioner has been arrested three times on violation of probation (VOP) for her failure to timely pay the costs. Petitioner’s last arrest, in January 2014 resulted in a ten-day jail term for the VOP. Although Petitioner’s adult daughters were tending to the minor child, neither Petitioner nor her daughters notified Respondent that Petitioner was not available for the minor child’s needs. Petitioner anticipates paying the remainder of the costs within the next few weeks when one of her daughters receives her income tax refund. Petitioner has significant health concerns. While at work several years ago, Petitioner sustained a back injury, a bulging disc. She is not seeking rehabilitation for her back, and is not planning on returning to work. Petitioner confirmed she has a history of high blood pressure and congestive heart failure, although she is currently feeling well. Additionally, Petitioner verified that she takes insulin four times a day to control her diabetes. Petitioner married D.B. on June 28, 1993. Petitioner has obtained the form to file for a divorce, but to date no petition for divorce has been filed by either Petitioner or D.B. Petitioner has had several reports of child abuse since 1990; however, some of those reports have been unsubstantiated. Petitioner and the minor child have lived in no less than three different homes over the past year. Petitioner submitted her adoption application while residing at one home and Respondent conducted the requisite home study at that location. However, even before the AARC meeting could take place, Petitioner had moved to another home, thus voiding the home study. Petitioner’s frequent moves does not provide a stable living environment for the minor child. Ms. Spofford has worked as a guardian ad litem (GAL) for over three years. A GAL advocates for the best interest of the child and may, at times, express different advocacy positions than the biological parents, potential adoptive parents, caregivers or, as in this case, Petitioner. GAL Spofford was appointed as the minor child’s GAL approximately three weeks after his birth, and she has visited with the minor child at least once a month since that appointment. GAL Spofford makes both announced and unannounced visits to Petitioner’s home to visit with the minor child. As a small baby, the minor child was not mobile, and GAL Spofford was not as concerned about his home environment. However, the minor child is now mobile and GAL Spofford has a lot of concerns. On one particular unannounced visit, GAL Spofford was allowed into the home by a three- or four-year old child, when no adult was present.5/ GAL Spofford picked up the minor child and discovered he had a wad of paper in his mouth, which GAL Spofford removed. In this one instance alone, the supervision of the minor child and the other young children was inadequate. Based on the totality of the circumstances, GAL Spofford believes it is in the minor child’s best interest to be adopted by another family. There is no dispute that Petitioner loves the minor child. Petitioner has cared for the minor child since his discharge from the hospital. Petitioner’s witnesses were unified in their observations of how Petitioner loved the minor child and looks out for his interest. Although Petitioner wants to adopt and care for the minor child, current circumstances do not render that a viable option. Respondent has a formidable task in ascertaining the best interest of any child. It requires a look into the future and a prediction of what will happen. Petitioner’s past indiscretions do not lend themselves to a stable and secure environment for the minor child. It is in the minor child’s best interest to be adopted by someone other than Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying Petitioner’s application to adopt the minor child. DONE AND ENTERED this 26th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 26th day of June, 2014.
The Issue Whether or not Petitioner's application for certification as an Independent Waiver Support Coordinator should be approved.
Findings Of Fact Respondent is the state agency that implements programs and services for persons who are developmentally disabled. In this capacity, Respondent certifies and enrolls qualified individuals, private businesses, not-for-profit organizations, and units of local government to provide services to developmentally disabled persons under the Developmental Disabilities Program Developmental Services Home and Community- based Services waiver program. In so doing, Respondent must ensure that all federal requirements are met and that the health and welfare of developmentally disabled persons are protected. Respondent has established reasonable academic, training and experience criteria for individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators as a part of the Developmental Disabilities Program Developmental Services Home and Community-based Services waiver program. For example, these minimum qualifications include a bachelor's degree and three years of professional experience in developmental disabilities, special education, or related fields. In addition to the academic, training and experience criteria, Respondent conducts background screening in an attempt to assess the suitability of individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators. Part of the background screening involves a review of the work product, performance appraisals, and achieved outcomes of any applicant who has rendered services to individuals receiving developmental disabilities services. Respondent may deny certification to an applicant if it receives evidence of an adverse history with Respondent or the Agency for Health Care Administration as a result of background screening. Prior to Petitioner's application to be certified as an Independent Waiver Support Coordinator, she was employed by an institutional services provider which provided services to individuals with developmental disabilities; her job with the institutional services provider had essentially the same responsibilities as she would have if she became an Independent Waiver Support Coordinator. Respondent solicited and received an evaluation of Petitioner's work performance with the independent services provider. Petitioner's supervisor indicated that Petitioner's work was not satisfactory and that she would not rehire her. Respondent determined this negative evaluation as evidence of an adverse history sufficient to disqualify Petitioner and deny her certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for certification as an Independent Waiver Support Coordinator. DONE AND ENTERED this 12th day of September, 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 12th day of September, 2002. COPIES FURNISHED: Joseph K. Birch 34 East Pine Street Orlando, Florida 32802 Chelsea Predue-Washington Post Office Box 1117 Clarcona, Florida 32710-1117 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue for determination is whether, as alleged, Respondent discriminated against Petitioner based on her sex, thereby violating Section 760.10, Florida Statutes. If that violation occurred, the remaining issue is what relief is appropriate. Petitioner contends that she should have received disability benefits during her pregnancy from July 21, 1987 through September 10, 1987 and that Respondent's refusal to pay constituted discrimination.
Findings Of Fact In their joint prehearing statement, filed at hearing, the parties stipulated to the following: During the calendar year 1987 the Petitioner was employed by the Respondent at its Melbourne, Florida, plant. During 1987 the Respondent provided weekly income benefits for non-occupational disability pursuant to the provisions of a document entitled "Addendum to Weekly Income Benefits for Non-Work Related to Disability." (Exhibit R-4) The Petitioner was off from work for the Respondent from April 21, 1987 through October 26, 1987. The Petitioner delivered a child on September 10, 1987. The Petitioner received weekly income benefits of $189.33 for the period from April 21, 1987 through July 21, 1987 and from September 10, 1987 through October 23, 1987. On Monday October 26, 1987, Petitioner returned to work with Respondent at her regular position and rate of pay. Respondent (Acopian) is a manufacturer of electronic components with a plant in Melbourne, Florida. Commencing in October 1979, and at all times relevant, Petitioner was employed by Acopian as an assembly worker. Her assigned duties required her to assemble and solder personal computer boards, a task performed primarily in a seated position and requiring little physical exertion. When she was hired, Ms. Faith was instructed regarding the company's benefit plan by Evan Martin, Vice President for the company. Mr. Martin is responsible for overall operations of the plant and for personnel matters. Ms. Faith filed the requisite forms and received disability benefits under the company's plan between November 9, 1981 and January 18, 1982, when she was unable to perform her duties due to pregnancy and childbirth. Sometime prior to April 20, 1987, Ms. Faith learned that she was pregnant again. Her treating physician was Dr. Eugene F. Wawrzyniak, an obstetrician with offices in Palm Bay, Florida. On April 20, 1987, Ms. Faith was given a note by her physician stating that she should be excused from work until the estimated date of her delivery, October 8, 1987. Ms. Faith's mother took the note to Acopian, delivering it to Doris Hayden, Evan Martin's Administrative Assistant, and the person responsible for maintaining the personnel files and disability claims. Ms. Faith was given the claim forms and completed portions of the form on May 10, 1987, indicating that her period of disability was to commence April 22, 1987. She also indicated on the form that her sickness or injury arose out of the course of her employment. Because of that, Ms. Hayden submitted the form to the state worker's compensation agency. She understood that the agency required forms be sent anytime an employee claims a work- related illness or injury. On May 18, 1987, Ms. Faith received notice of denial of the worker's compensation claim based on no injury arising out of employment. On June 15, 1987, Acopian received another note from Dr. Wawrzniak indicating that Ms. Faith must remain home due to threat of a miscarriage. Dr. Wawrzniak also completed the physician's portion of the disability claim form on June 15, 1987, indicating that Ms. Faith would be disabled from April 21 through six weeks post-partum. The condition he listed was "pregnancy with threatened spontaneous abortion." (Respondent's Exhibit 7.) Ms. Faith completed her portion of the form on June 19, 1987, and this time did not indicate the condition arose out of her employment. Evan Martin routinely reviews all claims for non-work related benefits. The company is self-insured as to that benefit plan. Mr. Martin had never seen a case at Acopian where a physician stated so early in pregnancy that the patient would be disabled for virtually the entire term of pregnancy. Because he was confused as to Dr. Wawrzniak's statement, he sent the doctor a letter, dated July 17, 1987, requesting medical facts in support of his diagnosis. Although Dr. Wawrzniak later testified, at his deposition on December 1, 1988, that his clinical impression in 1987 was that Petitioner could not have returned to her duties at Respondent after July 18, 1987, his response to Mr. Martin dated July 18, 1987 was not consistent with that conclusion. Specifically, he indicated in his July 18, 1987 correspondence that: Gerda Faith is a 27 year old white female, G- 3, P-1, who had a natural delivery in 1981 with a miscarriage of June 1986. She was seen in this pregnancy on 2/13/87 initial visit with a positive pregnancy test. She subsequently followed in the next two months with post coital bleeding and lower abdominal cramping. This would suspect [sic] a threatened abortion or miscarriage at this time and [sic] was told to rest and work would have to be curtailed. Otherwise, presently in the pregnancy on 7/28/87 she was examined fetal size [sic] approximately 30 weeks gestation which is consistent with her due date of 10/8/87. She is doing well and there is no sign of threatened [sic] miscarriage at this point in time, otherwise, there is no vaginal bleeding as in the first trimester of pregnancy and the patient is doing well. (Emphasis added) (Respondent's Exhibit 10.) Insofar as there appeared to be inconsistencies between this latest report and Dr. Wawrzyniak's statements as to the period of anticipated disability, and no supporting medical documentation was provided, Mr. Martin again requested medical evidence from the physician on August 31, 1987. Mr. Martin's August 31, 1987 correspondence stated in pertinent part that: It appears to us while Gerda had difficulties during the first trimester of her [sic] pregnancy, thereafter she could have returned to work until some time in late September, 1987. This is based upon your statement that she is now doing well, and there is no sign of threatened miscarriage at this point in time. However, this appears to be inconsistent with your statement on Gerda's health insurance claim form that she would be continuously and totally disabled and unable to work from April 21, 1987 through six weeks after the birth. (Emphasis supplied) We would appreciate it if you could provide the medical evidence upon which you relied in stating that she was continuously disabled and unable to work for the entire period of time rather than after the first trimester had passed and the threat of miscarriage had subsided. This information is necessary so that we may evaluate further whether to provide disability payments for the entire period claimed. (Respondent's Exhibit 11.) By letter dated September 1, 1987, Dr. Wawrzyniak responded as follows: In regards to your most recent letter on August 31, 1987 in relation to Gerda Faith, my last letter stated that she was doing better after 30 week gestation in which was written on 7/18/87. I felt that at this point and [sic] time there was no sign of threatened miscarriage and that she did not have any complaints regarding these symptoms of second or third trimester bleeding. Presently, she is doing well and I feel that under the circumstances she has approximately 5 weeks to go in her pregnancy and her due date is October that she can go back to work. She is physically fit and is out of danger in regards to her pregnancy at this stage. Mind you that this may change dramatically from week to week and if I so chose [sic] to have her out of work I shall write you a personal letter. (Emphasis supplied) (Respondent's Exhibit 12.) On September 9, 1987, Ms. Faith went into labor prematurely and delivered her child on September 10, 1987. It is undisputed that she was out of work from April 21, 1987, through October 23, 1987. She was initially paid benefits for the post-partum period and was later paid for the period April 21, 1987 through July 21, 1987, when Acopian was told by her doctor that there was no sign of threatened miscarriage. She claims she is owed benefits between July 21, 1987 and her delivery. Ms. Faith acknowledges that under Acopian's plan an employee is not automatically entitled to disability benefits simply because she is pregnant. The non-work related disability benefits under Acopian's plan are available to male and female employees alike for a wide range of medical conditions. Since 1983, payments have been made to at least seventeen women, including Ms. Faith, for pregnancy or pregnancy-related conditions. It is not unusual for Acopian, either through Evan Martin or his assistant, Doris Hayden, to seek clarification in medical documentation for both males and females. In such instances the physician usually cooperates fully.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE and ENTERED this 19th day of April, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1989. COPIES FURNISHED: Patrick J. Deese, Esquire Post Office Box 361937 Melbourne, Florida 32936-1037 Edward H. Feege, Esquire Post Office Box 2165 Lehigh Valley, PA 18001-2165 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue in this case is whether Javier Saladrigas, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Threshold Facts Notice has been waived and is not a contested issue herein. (Stipulated). Elisa Saladrigas is the mother and natural guardian of Javier Saladrigas. (Stipulated). She holds a doctorate in psychology, and sometimes will be referred-to herein as "Dr. Saladrigas." Javier was born a live infant on December 14, 2006. Javier weighed at least 2,500 grams at birth and was the product of a single gestation. (Stipulated). Obstetrical services were delivered to Elisa Saladrigas in connection with the delivery of Javier Saladrigas by NICA- participating physicians in Baptist Hospital of Miami, Inc. (Baptist Hospital), which is a licensed hospital in Miami, Florida. (Stipulated). The Timing of Javier's Injury On the date of Javier's birth, Elisa Saladrigas was a 37-year-old G1 with an IVF pregnancy and history of hypothyroidism. On December 14, 2006, at 3:16 p.m., Javier was delivered, full term at 38 weeks and four days gestation, with thick meconium-stained amniotic fluid, following a 15-1/2 hour labor. During labor, Javier's fetal monitor strips showed variable decelerations that progressed to severe decelerations with loss of heart rate variability. Upon delivery, the umbilical cord was looped around Javier's neck. He was floppy, tachypnic (evidencing an increased rate of respiration), and grunting, with a weak respiratory effort and in respiratory distress. He required "vigorous resuscitation" in the delivery room in the form of bag and mask ventilation, oxygen support, oral suctioning, gastric suctioning, tracheal suctioning, and vigorous tactile stimulation. Subsequent to such resuscitation in the delivery room, Javier's Apgars were six at one minute, seven at five minutes, and nine at ten minutes. These scores are within normal limits. At 3:57 p.m., still requiring oxygen support and exhibiting low oxygen saturations, with a working diagnosis of possible sepsis (later confirmed by testing as Group B streptococcus acquired from the mother during labor and/or delivery), hypoglycemia, and respiratory distress, Javier was transferred to Baptist Hospital's newborn nursery. It is significant that Javier's respiratory distress continued even after he achieved acceptable Apgar scores, because case law provides that the statutory period for compensability may encompass an additional "extended period of time when a baby is delivered in a life threatening condition" only if "there are ongoing and continuous efforts of resuscitation," and that "both the incident of oxygen deprivation and the brain injury resulting from the oxygen deprivation must occur in this time period."2/ Newborn nursery examination notes indicate that at 4:30 p.m., Javier's overall status was "critical," with an unstable respiratory rate and unstable blood pressure, and describe his condition as "pale and tachypnic in severe respiratory distress." Based upon the evidence as a whole, particularly by comparison of this entry to other notations made in the record at or about the same time, it is probable that these notes were dictated earlier than 4:30 p.m., and closer in time to Javier's physical admission to the newborn nursery and simply were not dictated or typed until 4:30 p.m. Due to Javier's on-going respiratory distress and other indicators, Neonatologist Paul Fassbach, M.D., transferred Javier from the newborn unit to Baptist Hospital's Neonatal Intensive Care Unit (NICU) for treatment of meconium aspiration syndrome (MAS). At 4:53 p.m., Javier was admitted to the NICU with worsening respiratory distress and poor oxygen saturations. He was given increased respiratory support, including positive pressure ventilation by NCPAP. Javier subsequently was diagnosed with septicemia by group B streptococci (Group B strep sepsis); respiratory distress; and severe MAS, confirmed by X- ray, showing diffuse pulmonary opacities throughout both lungs. MAS occurs when a baby inhales his own feces which have been expelled during labor and/or delivery. These feces are extremely corrosive to the baby's lungs.3/ Javier continued to desaturate, despite continuous resuscitative measures in the NICU, and at 8:52 p.m., he was intubated and placed on a ventilator. Umbilical arterial and venous catheters were surgically inserted to enable closer monitoring of his metabolic and respiratory condition. Javier was administered IV antibiotics for sepsis, glucose for hypoglycemia, nutritional support, dopamine, dobutamine, and epinephrine for low blood pressure, and surfactant medication to improve his lung function, but his condition continued to deteriorate. At 7:21 a.m., on December 15, 2006, Javier suffered the first of two cardiac and respiratory arrests. At 9:04 a.m., December 15, 2006, he arrested a second time, while still being assisted for the first arrest. All of the testifying physicians who had an opinion on the subject agree that, more likely than not, Javier's subsequently-diagnosed brain injury occurred at or about the time of these two "codes" or that the brain injury began to evolve at that point in time and worsened thereafter. Resuscitation at the point of the cardiac arrests took about 40 minutes. Umbilical artery cord blood gas is indicative of whether or not there has been oxygen deprivation at birth, but Javier's umbilical artery cord blood gas was never drawn. Rather, arterial blood gas drawn about four hours after birth, via a heel pinprick, showed a pH of 7.12, with a base excess of minus 12.8, which is acidotic and indicative of some degree of acidosis. When the baby coded approximately 18 hours after birth, the pH was only 6.78, with a base excess of minus 21, which is profoundly acidotic. Together, the blood gases may be read to indicate progressive oxygen deprivation preceding the cardiac arrests. Petitioner presented the testimony of Daniel Castellanos, M.D., a child and adult psychiatrist, who did not opine on timing and causality of Javier's brain injury, and of Nicholas Suite, M.D., a neurologist. Intervenor presented by deposition the testimony of Dr. William Rhine, a neonatologist. Respondent NICA presented the testimony by deposition of Dr. Charles Willis, a board-certified obstetrician, with special competence in maternal-fetal medicine, and of Dr. Michael Duchowny, a pediatric neurologist.4/ Neonatologist Rhine opined that hypoxia (a deficiency of oxygen reaching the tissues of the body, including the brain) resulted in the foregoing blood gas values, which were profoundly acidotic. Obstetrician Willis testified much the same. See infra. The greater weight of the credible medical evidence as a whole, but most notably the testimony of Dr. Rhine, the only neonatologist to testify, Dr. Willis, Dr. Michael Duchowny, a board-certified pediatric neurologist retained by NICA, who performed a "hands-on" neurological examination of Javier on July 15, 2009, and Dr. Nicholas Suite, a neurologist appearing for Petitioner, who examined Javier in September 2010, support a finding that simultaneously or concurrently with the two cardiac arrests in close succession, Javier suffered loss of oxygen to his brain, resulting in physical damage to his brain, which damage subsequently became visible on MRI. That is not to say, however, that some brain damage due to loss of oxygen did not occur during labor and delivery and/or during resuscitation in the delivery room, because the various medical authorities concede that it takes only about six minutes for such brain damage to occur, killing brain tissue. Most particularly, Dr. Duchowny's formal report to NICA read: . . . The records provide evidence of meconium aspiration syndrome and cardiac arrest. As they both occurred in the postnatal period, I believe they are the consequence of factors operating during labor and delivery. Dr. Willis could not quantify the degree of respiratory distress at birth, and opined, without further explanation, that although there may have been some oxygen deprivation to the baby at birth, it did not appear sufficient to meet the HIE standards for hypoxic brain injury. Dr. Willis could not determine from the cold medical records whether the baby had strep B pneumonia at birth, but he acknowledged that there was as good a chance that the baby acquired strep B and MAS during labor and birth as prior thereto; that the baby had respiratory distress "at birth"; and that upon delivery, the baby immediately required some type of oxygen support. He further opined that if Javier did have strep B, then that could result in an inflammatory response in the lungs. The baby had respiratory distress at birth, which Dr. Willis thought was most likely caused by MAS, both irritating the lining of the lungs, and causing them to thicken and create mechanical obstruction of oxygen exchange in the lungs. He acknowledged that the baby's respiratory status deteriorated after the Apgars were recorded. He described the baby's condition on leaving the delivery room as only "improving somewhat." Dr. Willis testified, in pertinent part, as follows: * * * [Dr. Willis] A: . . . the baby went to the, left the delivery room, improving somewhat, but once the baby got to the nursery, began having more respiratory distress, and then was transferred to the neonatal intensive care nursery . . . about five or six hours after the baby was born that they had to intubate the baby because of worsening respiratory distress. * * * [Mr. Wolk] Q: All right. And respiratory distress worsens in the immediate post delivery period even after the baby's received supplemental oxygen and needed to be bagged. Also correct? A: Correct. Q: The respiratory distress continues worsening and the baby then needs to be intubated at five hours after birth? A: Yes. Q: Okay. This continuum of respiratory distress then continues. And I'm tracking the language on the first page of your report, Doctor. A: Uh-huh. Q: So about 18 hours after birth the baby codes in the NICU? A: Correct. Q: All right. All right. At this point would you -- do you have an opinion as to whether the cause of the code was related to group B--more related to group B stress [sic] or meconium aspiration, or a combination of the two? A: You know, I don't know. I believe by that time you're probably getting in more to a neonatal expertise then [sic] a maternal fetal medicine. I mean, I feel comfortable with the immediate postdelivery period, but, you know, hours into the nursery, I would prefer the neonatologist comment about that.[5/] Q: All right. We've got this continuing of worsening respiratory distress, starting with birth and then continuing to the code about 18 hours afterwards in the NICU, correct? A: Yes.[6/] Q: All right. Basically the summary in your report, baby requires CPR for 40 minutes and develops an anoxic brain injury from the code, correct? That's my assumption, yes. Q. When you say that's your assumption, what do you base that assumption on? A: Well, you know, the baby had a -- an ultrasound of the head done on the 15th, the day after birth, which would be, you know, after the code, and at that time they showed a moderate amount of cerebral edema, and that's often what we see as the earliest ultrasound findings for hypoxic ischemic brain injury, so -- Q: So more likely than not the edema shown on the head ultrasound was the result of a hypoxic brain injury? A: Right. And since the baby coded and required, you know, 40 minutes of CPR, it would certainly make sense that if there's, you know, brain injury, that it probably occurred, most of it, during that time. (Jt. Ex. 18, Willis Depo. pages 19-22) * * * [Mr. Solomon] Q: Okay. Would you agree with me that the passage of meconium and the meconium aspiration was an event which occurred sometime prior to the delivery of Javier . . . ? * * * A: . . . -- yes, it could occur at that time, but also you can get aspiration of meconium after the baby's born, when the baby takes the first few breaths as well. Q: Okay so it either occurred just prior to delivery or in the immediate post delivery period, correct? A: Correct. (Jt. Ex. 18, Willis Depo. pages 27-28) * * * Q: Okay. Is this child hypoglycemic at birth? A: Yes. The baby did have hypoglycemia, had low platelet counts, had a lot of problems, actually. Q: And all of these conditions would have existed at or around the time of birth, correct? A: Yes. (Jt. Ex. 18, Willis Depo. page 29) * * * Q: I mean, did this child always require some type of respiratory support? A: As far as I'm aware, yes.[7/] (Jt. Ex. 18, Willis Depo. pages 30-31) After his two "heart attacks," see Finding of Fact 16, Javier was transferred to Miami Children's Hospital at 10:30 a.m., on December 15, 2006, in critical condition with unstable heart rate, respiratory rate, and blood pressure. Javier's admitting diagnoses at Miami Children's Hospital included MAS, pulmonary hypertension, septic shock, hypertension, thrombocytopenia, and the need for continuous ventilator support. Javier was placed on extracorporeal membrane oxygenation (ECMO) due to severe respiratory distress and sepsis. ECMO is the equivalent of a heart/lung bypass machine which breathes for the infant and oxygenates his blood. At this point, ECMO "stabilized" Javier, but that is because it breathed for him. A brain ultrasound at Miami Children's Hospital at 1:33 p.m., on December 15, 2006, revealed "moderate diffuse brain edema." An EEG also showed abnormality. A brain ultrasound performed on January 9, 2007, was abnormal and showed signs of periventricular leukomalacia (PVL) within the brain's left frontal white matter, indicative of dead brain tissue. On February 14, 2007, a brain ultrasound showed a focal area of echogenicity in the white matter of Javier's brain. A CT scan of Javier's brain on April 3, 2007, showed permanent areas of calcification in the white matter of the left frontal lobe and an area of increased density in the white matter adjacent to the frontal horn of the left lateral ventricle. Encephalopathy and leukomalacia (signs of permanent brain injury resulting from loss of oxygen) were diagnosed on April 4, 2007, by Dr. William F. Carroll, a neonatologist at Miami Children's Hospital. He noted that Javier was oxygen dependent and required oxygen via nasal cannula; was at risk for developmental delay and required long term follow-up with physical, occupational, and speech therapies as well as frequent follow-up with the Early Intervention Team and multiple healthcare providers. A CT scan on April 3, 2007, showed that the cerebral edema was largely resolved and that only a "tiny area of increased density in white matter of the right frontal lobe remained, and this tiny area might constitute an area of calcification." See Finding of Fact 36. Javier remained at Miami Children's Hospital through April 24, 2007, when he was discharged by Dr. Manuel Campos, a neonatologist. When discharged, Javier had a doctor's authorization for "medically necessary" skilled nursing for 24 hours per day for one month, then 12 hours per day for two weeks. Thereafter, he transitioned into family care. The discharge diagnosis was thrombocytopenia, MAS, and pulmonary hypertension. Javier also had failed his hearing screening. However, a later test showed his hearing to be intact. See Finding of Fact 36. An MRI was recommended for further evaluation but was not performed until four years later, when it showed physical brain damage to Javier's hippocampus. See Finding of Fact 43. Although Petitioner and Intervenor have argued that oxygen deprivation to Javier's brain persisted through ECMO and further into the postnatal period, no finding regarding that period is necessary, because the greater weight of the competent evidence supports a finding that the injury to Javier's brain occurred during resuscitation in the immediate postdelivery period in Baptist Hospital no later than when Javier "coded" due to the cardiac arrests, and that the brain injury from oxygen deprivation had occurred at least by that point in time. Javier's Evaluations and Diagnoses Israel Alfonso, M.D., Director of Neonatal Neurology at Miami Children's Hospital, followed Javier's progress for some time. His reports, stipulated in evidence, addressed Javier's situation on April 30, 2007, July 23, 2007, March 24, 2008, and March 23, 2009. Dr. Alfonso's last narrative report, rendered when Javier was 27 months of age, describes a CT brain scan on April 3, 2007, showing a "[t]iny area of increased density in the white matter of the left frontal lobe that may represent an area of calcification," see Finding of Fact 31; a March 20, 2007, BAEP study, suggesting "normal precochlear and cochlear functions as well as normal conduction through both peripheral and central auditory pathways up to the level of the midbrain bilaterally"; a March 27, 2007, sacral ultrasound, showing a normal spinal cord; a VEEG study on January 22, 2007, represented as "Normal, . . . events non-epileptic in nature," and a January 15, 2007, normal EEG. His report further stated, ASSESSMENT: Neurological examination: minimal gross and fine motor developmental delay and hypotonia. IMPRESSION: static encephalopathy temporally related perinatal problems by history manifested by poor head growth (following a trend), minimal hypotonicity and feeding problems (improving). No craniofacial disproportion. Translated from "doctor-speak," the foregoing means that the neurologist associated with Javier for the longest time in a clinical setting, as opposed to a setting for litigation, who also is the neurologist who has had the most "hands on" association to date with Javier, diagnosed him at 27 months, as having minimal gross and fine motor developmental delay; permanent but non-progressing and unchanging encephalopathy; minimal loss of muscle tone; poor head growth; and feeding problems. Dr. Duchowny, NICA's pediatric neurologist, performed an independent medical examination of Javier on July 15, 2009, when Javier was about 31 months old. Deposed on April 12, 2010, Dr. Duchowny's ultimate opinion was that his examination of Javier did not reveal evidence of a substantial motor (physical) or mental impairment and consequently, Javier would not be compensable under the NICA statute. That said, Dr. Duchowny acknowledged that Javier had Attention Deficit Hyperactivity Disorder (ADHD), hypertonia and some fine motor impairment and developmental delays. He also noted that Javier's head was in the third deviation too small for his body and that the fontenelles of his skull had closed, and that as a result, Javier's brain would not grow as Javier grows physically. Dr. Duchowny did not view microcephaly as a "physical impairment," but as a "physical finding on neurological examination," and testified that, in his view, "an impairment would be some problem that prevents one from doing things." However, he also conceded that probably 90 percent of microcephalics have a lower IQ than normocephalics; more often than not, as they age, the majority of microcephalics have other motor or developmental issues, compared with normocephalic children; and for the majority of microcephalic children, these motor or developmental issues are permanent. Dr. Roberto F. Lopez-Alberola, Assistant Professor and Chief of the Section of Child Neurology, Pediatrics, at the University of Miami's Miller School of Medicine, wrote (in pertinent part) in a letter concerning his February 26, 2010, assessment of Javier, when Javier was approximately three-and-a- half years of age, that: PHYSICAL EXAMINATION VITAL SIGNS: . . . Head circumference of 46 cm, which is below the 2nd percentile. GENERAL: Awake, alert, fidgety, and hyperactive, yet very sociable and playful, interactive both physically and verbally. Well nourished. No dysmorphic features. HEENT: Microcephalic, atraumatic, pupils equally round and reactive to light and accommodation. Extraocular movements were full. Occasional eye blinking noted. No craniofacial asymmetry. CARDIOVASCULAR: Irregular rate and rhythm. RESPIRATORY: Clear to auscultation. ABDOMEN: No hepatosplenomegaly, soft and depressible. SKIN/EXTREMITIES: No rash or lesions. No joint deformity or limb asymmetry. No hypo or hyperpigmented skin areas. NEUROLOGIC: Cranial nerves II through XII grossly intact. SENSORY: Romberg was negative. Deep tendon reflexes symmetric. MOTOR: Slightly decreased tone throughout. Fair muscle bulk. No evidence of wasting or atrophy. No pronator drift. COORDINATION: No truncal titubation, however, decreased balance and coordination with slight dysmetria bilaterally. GAIT: No ataxia. ASSESSMENT: In summary, Javier is a 3-year-old young boy with complicated birth history with known developmental delay, making strides, microcephaly, abnormal movements, which are consistent with simple motor tics. Interestingly today, the patient's maternal grandfather accompanied mother and he also has a longstanding history of simple motor tics, which most likely then represent a familial trait. Nonetheless, the EEG which was ordered to rule out any epileptic activity, although these movements are not epileptic in nature, the EEG is not normal and does show epileptiform activity. . . . it is questionable whether the patient's microcephaly is acquired or if indeed was congenital. In terms of the patient's simple motor tic disorder, I have explained to mother the natural history of tics and as long as the tics are not bothering the patient psychologically or emotionally or in any physical form that treatment would be deferred. In terms of the patient's developmental delays, the patient most certainly would benefit from continued therapies including occupational and physical therapy, as the patient's coordination and balance as well as muscle tone are still impaired. I have also recommended aqua therapy. In terms of the patient's behavioral issues, I have recommended behavioral therapy and at some point if the patient's hyperactivity were to become an issue interfering with his behavior and his academic progress, would then consider pharmacotherapy. . . . (emphasis added). For purposes of assessing permanent impairments, the foregoing record appears to state that Javier's head is too small for his body, which may be a birth injury or congenital, and which is a condition that persisted at the date of final hearing, as also discussed by other physicians, including Respondent's expert neurologist, Dr. Duchowny, see Findings of Fact 39-40, that Javier has tics, which are as likely to be congenital or hereditary as they are to be the result of brain injury, and that are not epileptic in nature; that Javier has symmetrical and working limbs, muscles, and joints; and that he is without ataxia, meaning that he has some ability to coordinate body movements. Ataxia is sometimes associated with walking or cerebral palsy. This record also states that Javier evidences dysmeteria (an abnormal condition typically characterized by overestimating or underestimating the range of motion needed to place the limbs correctly during voluntary movement); that some of his muscles are somewhat flaccid; that he is without Romberg's sign8/; and that his gait (walking) is within normal limits. However, the record also states that upon report by his mother, Javier has developmental delays. Dr. Suite, a neurologist, examined Javier on September 17, 2010, and testified on behalf of Petitioner. He rendered a report of his examination, which, together with his testimony, shows that Javier's affect was dull and slow; that he had no history of epileptic seizures; that he could relate some of his history; and that his head circumference is microcephalic. Contrary to a previous treating evaluation, see Finding of Fact 37, some limitation of Javier's lateral spine and range of hip movement was found. Contrary to a previous treating evaluation, see Finding of Fact 41, Dr. Suite found a positive Romberg sign and abnormal gait. He also diagnosed developmental delay, attention deficit disorder, hypotonia, and behavioral difficulties. On August 26, 2011, a brain MRI of Javier (age four years, eight months) was done at Miami Children's Hospital. It concluded: Scattered foci of superatentorial signal abnormality, likely areas of gliosis or dysmyelination, the result of a remote insult. Bilateral hippocampal atrophy, on the left with associated sclerosis. Tiny physiologic pineal cyst and small choroidal fissure cyst. Dr. Castellanos, a board-certified child and adolescent psychiatrist, examined Javier at Dr. Saladrigas' request on October 31, 2011. He diagnosed Javier at approximately five years old, with cerebral palsy, ADHD, problems fulfilling activities of daily living (ADLs), developmental problems related to personal hygiene, and intermittent memory deficits currently manifesting as Javier being unable to remember from day to day where his pull-ups are stored; that he is supposed to place his school gear in his "cubby"; and his being unable to remember where, within his school, his "cubby" is located.9/ Significantly, Dr. Castellanos predicted that Javier's brain will not continue to grow, but the complexity of academic tasks required of him will increase and his ability to cope will diminish; he will become more frustrated; and in the future, he will be even less able to perform academically than at the present time. Ultimately, Dr. Castellanos deferred to psychologists for testing IQ and to teachers to determine what learning disabilities Javier may have. The Extent of Javier's Mental and Physical Impairments Under the NICA Plan, a "physical impairment" relates to impairment of the infant's "motor abnormalities" or "physical functions." "Mental impairment" also addresses functionality, as opposed to mere diagnosis. However, under NICA, the identification of a substantial mental impairment may include not only identifying significant cognitive deficiencies but can include, in a proper case, additional circumstances such as significant barriers to learning and social development.10/ As his parent, Javier's mother is better positioned than anyone else to observe Javier's day-to-day behavior.11/ In this case, Dr. Saladrigas is a licensed clinical psychologist, and accordingly, despite the inherent natural bias of every parent, her observations and impressions of Javier's functioning are entitled to some greater weight than might ordinarily be accorded a lay-parent.12/ That said, Javier's mother's testimony contains internal contradictions. On the one hand, she testified that she tested his IQ prior to his entering the academic year at St. Thomas Parish School in August 2010, at about age three, and found it to be in the normal range of IQ. On the other hand, she states that such testing does not have much validity until a child is six. She testified that Javier has never had an independent IQ test, but that he had IQ testing by Ketty Gonzalez, without any elaboration on what was determined. Under these circumstances, the undersigned is left with a perception of Javier's possessing a normal IQ at age three. Javier has epileptiform signals on various brain examination, but he has never been diagnosed with epileptic seizures. His mother believes his tics and eye-rolling signal seizures, but no physician or test has confirmed this perception. Javier is bilingual in Spanish and English, because his family speaks both languages. According to his mother, Javier started to speak first words "possibly" before he was one year old, and she considers that Javier met his normal developmental milestone in this regard and later with regard to when he first spoke in sentences. In the past, Dr. Saladrigas has been diligent in seeking out and providing private occupational, speech, and physical therapies for Javier, but at the present time, he is in an Exceptional Student Education (ESE) class in the public school system, which can provide all these therapies. Even now, his mother prefers to pay for occupational therapy in the private sector. She stated that at the present time, Javier's speech and the production of his speech is quite good, and his feeding problems have largely disappeared, so she has temporarily discontinued private speech therapy. At the present time, Javier is physically able to walk without assistance; to use the bathroom by himself, although he wets the bed most nights; to run around the playground when he chooses to do so; and to swing on the swings without assistance. He requires neither braces nor a wheelchair for ambulation. His mother reported that he started walking at thirteen months, which she perceives is a normal age for that developmental milestone. Dr. Castellanos observed that Javier talks a lot and is clumsy with his drawing. He has diagnosed Javier has having cerebral palsy, which is a physical or motor disability, arising in Javier's damaged brain, as opposed to a mental disability, but Dr. Castellanos agrees that Javier is very active and without physical problems ambulating. Javier's mother also commented on Javier's "floppy" aspect, that is, his mild hypotonia or muscle weakness, but she admitted that there is not much Javier cannot now do from a gross motor standpoint. Nonetheless, she perceives a difference in the quality of Javier's gross motor functions in comparison to those of her two-year-old son and her nephews of varying ages. She described Javier's susceptibility to pneumonia due to his lung damage from MAS, for which he has had 10 hospitalizations. He has poor appetite and a general fraility as a result of the lung damage. She uses a nebulizer with him and a "Shake Vest" to break up the congestion in his lungs. He uses oxygen when he travels. Next to his mother, Javier's teachers are probably best-suited to describe how Javier functions daily and how he learns.13/ Javier has been placed in a succession of five pre- schools where he has had little success and from which he was either asked to leave as a result of behavioral problems or was withdrawn by his mother because, according to her, the teachers in those schools, who were not ESE-qualified, "complained" about Javier's disruptive behaviors. Javier also had not been able to interact successfully with the other "normal" children in any of these locations. Dr. Saladrigas perceives Javier's socialization problems as related to hyperactivity; as not honoring the "personal space" boundaries required by other children; and as his withdrawal from interaction with other children when he is not successful socializing with them or getting their undivided attention. Her perceptions in this regard were echoed by Kitty Finneran, associate head of St. Thomas Parish School. Dr. Saladrigas placed Javier at St. Thomas Parish School's summer camp in June 2010, when he was three-and-a-half years old. She sought no special accommodation for him, and, in fact, withheld from school/camp staff some information regarding his difficulties in his prior pre-school environments, so that he would not be pre-judged. Initially, in the first part of the June 2010, summer camp, experienced school staff viewed Javier as being in the normal range for his development, based upon their observation and conversation with him and his mother. After a period of observing how Javier interacted with other children at camp, they recognized that he had the types of behavioral, social, and learning problems testified-to by his mother and Ms. Finneran. Kathleen Finneran is the associate head of St. Thomas Parish School. She has been associated with St. Thomas for 43 years and has been an administrator there for 17 years. Ms. Finneran presided over the summer camp activities when Javier was enrolled there in June 2010 and over the school year that began in August 2010. She described Javier as having no focus; doing inappropriate things; invading others' personal space; being unable to grasp "why" he was forbidden to "stomp" repeatedly on a teacher's foot, and persisting in such behavior despite being told not to do so. She described him as retreating to the swings from other playground play when he could not get other children to focus on playing with him or playing what he wanted them to play and as frightening them. Javier's mother described Javier's home play then, and at the present time, as being almost exclusively on the swings or dressing up, pretending to be a fictional character, and running around the house in costume. She maintained that he could parallel play with toys, but could not play with toys interactively with his brother or cousins. She indicated that Javier's role-playing had carried over to his annoying other visitors at Disney World when the family had gone there in the summer of 2011. On that trip, Javier imitated the cartoon character actors by blowing kisses and asking other park attendees to dance with him. Dr. Saladrigas, Ms. Finneran, and Dr. Castellanos commented on Javier's propensity to constantly sing to himself. His mother says he learns songs quickly. In August 2010, Javier began his three-year-old pre- school program at St. Thomas. He was not able to function in a regular class with two teachers and 15 other children. One teacher had to be assigned to exclusively manage him. Dr. Saladrigas was ultimately asked to remove Javier from St. Thomas Parish School, which she did. Javier is currently enrolled in an "inclusive" ESE program in the public school system. His mother is credible in her assertion that he has not yet been classified as to type of ESE student at this early grade level. However, so far, he seems to be functioning adequately in an ESE "inclusionary" class of 50 percent ESE students and 50 percent mainstream students. Analysis It is the child's ability to function mentally which must control a determination of permanent and substantial mental impairment or lack thereof. Javier has been diagnosed with ADHD, developmental delays, dull affect, slow speech, problems with ADLs, and memory deficits. Although he has been unsuccessful to date in mainstream educational environments, such as St. Thomas Parish pre-school and camp and in what appear to be other very informal pre-school environments, there are no standardized IQ or other intellectual tests whereby his degree of mental impairment or ability to learn can be assessed. In a proper case, proof that a child cannot learn once he is placed in an accredited ESE class could support a finding of permanent and substantial mental impairment, but there is no such proof here, and NICA reasonably points out that Javier has made good progress in private, one-on-one speech therapy, physical therapy, and occupational therapy. Even so, there can be no serious debate that Javier's microcephalic head constitutes a permanent abnormal physical condition, and that his closed fontenelles mean that his head and his brain will not continue to grow, as he otherwise physically grows and matures, or that he will have limited intellectual functioning as a result. These factors, together with his failure to understand correction, his inability to remember physical things and locations, his inability to sequence tasks, and his failure to process memory, compel a finding that Javier has, indeed, sustained a "permanent and substantial mental impairment." However, the evidence falls short of establishing that Javier has sustained a "permanent and substantial physical impairment." Petitioner asserts that because all of Javier's mental impairments arise from the physical injury to his brain, which injury is visible on MRI within the hippocampus, then it must follow that he is permanently and substantially physically impaired, as well as permanently and substantially mentally impaired. This argument is not persuasive. The language employed by the Legislature in enacting section 766.302(2), recognizes a distinction between "injury" and "impairment." It provides compensation only for an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury . . . which renders an infant permanently and substantially mentally and physically impaired." Because of the clear language selected by the enactors, "injury" and "impairment" cannot mean the same thing. By statutory context, the physical or mental "impairment" must come to pass because of the brain or spinal cord "injury." Moreover, "impairment" has, throughout the history of the Act, been equated with functional defect or loss of functionality.14/ Javier has lung damage and significant recurrent pneumonia, probably related to MAS and probably not related to his brain injury in the statutory period, but his lung problems have been considered as part of the sequelae of the brain injury which occurred in the statutory period. Even so, the treatments Javier has undergone and the maturation process seem to have lessened the physical problems with his lungs. Javier has cerebral palsy and mild, generalized hypertonia (decreased muscle tone) directly related to his brain injury in the statutory period. Yet, he can perform all of the physical demands of daily living. He has gross control of his head and use of his hands, arms, and legs, with only some mild leg-shaking. His tics and the rolling back of his eyes may or may not be congenital, but they are intermittant. His fine motor control development is stunted, but he is able to sit alone, stand alone, walk, run, swing, and play alone or with others. Javier can see, hear, smell, and speak. There is no evidence he has an impaired sense of touch. Javier met his early developmental milestones. There is no evidence suggesting that he cannot be trained to feed and groom himself, despite current personal hygiene issues. He is toilet trained, except at night, and his medical records show his amount and frequency of bedwettings do not amount to eurinesis. On its own, this scenario does not amount to permanent and substantial physical impairment. The record also does not support a finding that any or all of Javier's physical impairments present significant barriers to learning and social development.
The Issue Whether Petitioner is entitled to services from the Developmental Disabilities Program. Whether adequate funds are available to provide these services given Respondent's existing appropriations.
Findings Of Fact The Petitioner is a seven-year-old boy who has a diagnosis of autism. In addition, he has been diagnosed with mild mental retardation and severe intractable seizure disorder. Approximately on July 7, 2000, Petitioner's parents requested services for toilet training, incontinent supplies, behavioral training, respite services, speech therapy, and occupation and physical assessments. Upon receipt of the application and review of relevant documentation, Petitioner was determined to be eligible for developmental services under the provisions of Chapter 393, Florida Statutes (2000). By letter dated September 29, 2000, Respondent advised Petitioner that his request for services had been denied. The reason identified for the denial was as follows: "There are not adequate funds available for the service(s), given the Department's existing appropriations." Petitioner requested a hearing to challenge Respondent's denial of services. At the hearing, it was established that, although Petitioner is eligible for services, the Florida Legislature appropriated additional funding only to be used to provide needed services for individuals who were clients of Respondent and were waiting for services on July 1, 1999. In order to comply with the mandate of the Legislature, Respondent issued Policy Directive PD number 00-07, dated August 30, 2000, which authorizes services be provided only to individuals who were clients on July 1, 1999, and were awaiting services. Respondent will not provide services to individuals who become clients after July 1, 1999, until approximately June 30, 2001, unless the new clients are determined to be in immediate crisis or danger. No evidence was presented to demonstrate that Petitioner was in immediate crisis or danger. However, the need for these services is urgent. Petitioner's mother made a telephone call to the Respondent approximately three years ago inquiring about services available for her son. Following that phone call, Petitioner did not submit an application for services and was never denied services or eligibility. The only application for services submitted by Petitioner was in July of 2000 and eligibility was approved. Petitioner cannot be considered as a client of Respondent until after July 1, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for services be approved and Petitioner be placed on the waiting list for services when new funding becomes available. DONE AND ENTERED this 27th day of March, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 27th day of March, 2001. COPIES FURNISHED: Eric Aach c/o Lori Aach 5777 Craindale Drive Orlando, Florida 32819 Eric Dunlap, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 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 is eligible to receive disability income payments under the State Group Disability Income Self-insurance Plan (DISP).
Findings Of Fact On or about February 1, 2005, James S. Purdy, Public Defender for the Seventh Judicial Circuit, State of Florida, hired Petitioner as a "part-time" appellate attorney. Petitioner's duties included representing indigent criminal defendants on appeal. As a "part-time" attorney, Petitioner worked the same number of hours as full-time attorneys. His workload was equivalent to the workload carried by all part-time and full- time appellate attorneys. However, except to attend weekly staff meetings, Petitioner did not perform his duties at the Public Defender's Office. Petitioner and other "part-time" attorneys were free to work from home and/or to maintain a private law office. During Petitioner's employment with the Public Defender's Office, Craig S. Dyer, Deputy Public Defender, was in charge of personnel. James Wulchak, Chief of the Appellate Division, was Petitioner's direct supervisor. Petitioner has been under the continuous care of a physician for Parkinson's disease since his diagnosis in 1997. Parkinson’s disease is a neurological degenerative movement disorder for which there is no known cure. The disease's symptoms initially are responsive to medication but become less responsive over time as the disease progresses. Despite the slow progressive nature of Parkinson’s, Petitioner always was able to compensate for his disability by typing his briefs during the periods of time that his medications were effective in relieving his symptoms. Sometimes he worked before dawn, during the evening hours, or on weekends. Petitioner never informed Mr. Purdy, Mr. Dyer, or Mr. Wulchak that he was unable to perform his duties due to a physical disability. Petitioner never requested or advised his employer of a need for special accommodation to perform his assigned tasks. Petitioner continued to perform the duties required of him as an appellate attorney up through the last day of his employment. Petitioner's employer never contemplated dismissing Petitioner due to his inability to perform satisfactory work. In a meeting on March 25, 2008, Mr. Purdy requested Petitioner's resignation due to an incident unrelated to his disability. Petitioner responded that he needed time to ascertain the status of his insurance benefits. Several days later, Mr. Dyer placed a telephone call to Petitioner. Petitioner again refused to resign. On April 15, 2008, Petitioner attended a routine weekly staff meeting. After the staff meeting, Mr. Dyer and Mr. Wulchak had a private meeting with Petitioner. When Petitioner refused to tender his resignation, Mr. Dyer terminated Petitioner's employment effective immediately. But for the incident unrelated to Petitioner's physical condition, Petitioner's employer would have allowed him to continue to work after April 15, 2008. The next day, Petitioner met with representatives of the Public Defender's Office to surrender files. The Public Defender's Office denied Petitioner's request to be paid for work performed on April 16, 2008. As of April 15, 2008, Petitioner had accumulated 228 hours of annual leave and 242.59 hours of sick leave. Respondent paid Petitioner for 120 hours of annual leave, the maximum allowed. Petitioner did not receive payment for accumulated sick leave because he had not worked six years for the state. At all times relevant here, Petitioner's employment was classified as Select Exempt Service (SES). The DISP is one of the employment benefits that Respondent provides to SES employees under Florida Administrative Code Rules 60P-6 and 60P- The purpose of DISP is to provide employees who are on leave with income once their accumulated leave is depleted. In April 2008, Petitioner filed a claim for disability benefits with the Social Security Administration. On May 5, 2008, Petitioner filed a Notice of Intent to file a claim for benefits under the DISP. In the notice, Petitioner asserted that he was disabled as of April 15, 2008, the last day he was a paid employee. Within 90 days thereafter, Petitioner filed his completed claim for disability income payments under DISP. In a letter dated July 1, 2008, Respondent advised Petitioner that he was not eligible to receive DISP payments because he was no longer a state employee. A letter dated July 5, 2008, advised Petitioner that he would receive Social Security disability income in the amount of $2,060 per month commencing October 2008. Petitioner offered the deposition testimony of Richard Boehme, M.D. in lieu of testimony at hearing. Dr. Boehme, a board-certified neurologist, treated Petitioner several times in 2003 and again in January 2004. Thereafter, Dr. Boehme did not see Petitioner professionally until August 2008. Dr. Boehme's medical opinion was that Petitioner was totally disabled and unable to perform the duties pertaining to his employment as of January 1, 2008. Dr. Boehme's testimony is not persuasive in light of Petitioner's continued productivity up through April 15, 2008. Dr. Boehme did not place any specific limitations on the physical activities of Petitioner. According to Dr. Boehme, there was no medical reason to keep Petitioner from continuing to perform the same duties he performed on his last day at work. The greater weight of the evidence indicates that Petitioner was performing satisfactorily on April 15, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to DISP benefits. DONE AND ENTERED this 13th day of November, 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 13th day of November, 2008. COPIES FURNISHED: Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Henry T. Swann, III Henry Swann, III Post Office Box 4415 St. Augustine, Florida 32085 Dennis Robert Schutt, Esquire Schutt, Schmidt & Noey 2700-C University Boulevard West Jacksonville, Florida 32217 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Department of Health and Rehabilitative Services, (Department), was the state agency responsible for the maintenance of a register of reports of abuse and neglect of children, the elderly and the disabled in Florida. Respondents, Clifford and Nancy Stephan operated a foster care home for children in St. Petersburg, under license issued by the Department. On August 13, 1993, J.B., a 2 1/2 year old boy, was placed as a resident in Respondents' foster home. J.B. is described as a rambunctious child who demonstrated behavioral problems but who had no documented clinical problems. The placement was made by Teresa Harris, a child protective investigator for the Department who, when she delivered the child, spent a lot of time with the Respondents describing him and his problems. The care packet she left with the Stephans did not, however, have his Medicaid card included with it. Without that card, the Stephans could not get medical care for the child under Medicaid. At the time he was delivered to the Stephans, J.B. had been abandoned and abused. He had some scars, (cigarette burns), and old abrasions as well as the normal lumps and bruises which might be expected on an active child of his age. After the placement, follow-up visits were made by either Early Service Intervention personnel or by Ms. Harris who indicated that some time during the following week, the Medicaid card was to be delivered by ESI. It was several weeks after the placement, however, before the card was actually delivered and during that time, Ms. Stephan made repeated requests to Department personnel for it. At the time of delivery, it had only 10 days remaining validity. According to Ms. Harris, during the week of September 20, 1993, Mrs. Stephan called, upset, saying that J.B. was acting up and had hurt himself when he dove into the couch and hit his face on a bar running across the back, giving himself a black eye. According to Ms. Harris, Mrs. Stephan also stated that they had had to lock J.B. in the bathroom when he became excited and had bruised himself when he hit himself on the toilet paper holder or rolled around on the floor. Mrs. Stephan categorically denies having placed J.B. in the bathroom, much less locked him there, and claims he would go in there himself for solitude and remain so long, they had to call him out. She notes the bathroom door does not lock from the outside - only from the inside. Taken as a whole, it is found unlikely that the Stephans would lock or even confine in any way a child as young as J.B. in a bathroom, the one room in the home where there is little softness but an abundance of hard, potentially injurious surfaces on which he could hurt himself. As a result of Mrs. Stephan's call, Ms. Harris went to the Stephan home on September 22, 1993 where, she claims, she asked Mrs. Stephan if she wanted J.B. removed from the home. According to Mrs. Harris, Mrs. Stephan said she did, but, again, Mrs. Stephan denies she was asked or indicated she did want him out. Ms. Harris also states that when she arrived at the home, early in the morning, she found J.B.'s things already packed and waiting. At this point, Ms. Harris observed an altercation between Mrs. Stephan and her eldest son in which the boy spoke rudely and provocatively to his mother. Mrs. Stephan did not respond in kind. At this same time, Ms. Harris also noticed that J.B. had two black eyes and bruises on his back. She already knew of the black eyes as a result of Mrs. Stephan's report of his dive into the sofa, but he also had on his back oddly shaped round bruises which concerned her. She told Mrs. Stephan she would have to call in and report the bruises and that Mrs. Stephan should expect an inquiry into how the child got them. Ms. Harris took J.B. from the Stephan home that day, taking him to her office where she showed the bruises to her supervisor. During the ride from the home to the office, she asked J.B. how he got the bruises and, she relates, he stated "Cliff did it." Other witnesses who discussed the bruises with the child, including Dr. Morris with the child protective team, indicate that J.B. indicated that "Charlie" did it. In light of the inconsistency, it is found that J.B. did not accuse "Cliff", (Mr. Stephan), but, more likely, "Charlie", another, also very aggressive foster child living in the home. That same day, the child was examined by Dr. Morris who discovered some of the old bruises he had noted in a prior examination conducted on August 4, 1993, before the child was placed with the Respondents. The doctor also noted some new bruises, however, on the face and on the back. The bruise on the face was consistent with the story told regarding the dive into the couch and could well be accidental. The bruises on the child's back were, however, in the doctor's opinion, consistent with an inflicted injury, (child abuse). These bruises were linear, uniform in shape and dimension, and not likely to have resulted from an accident. They are not compatible with either tumbling exercises on a hard floor or bites. Their location on the body supports that conclusion. The most common cause of this type of injury is a beating by a belt or cord. While it is hard to tell the age of the person who may have inflicted these bruises, they are not characteristic of play between young children. No evidence was presented to indicate how the bruises were actually inflicted. Their cause is unknown. The child does not indicate in any way that either Respondent administered them. Immediately after the report concerning J.B.'s bruises was filed, an investigation was conducted into the incident by a representative of the Department. At the time, there were at least 5 foster children in the home, including J.B.. The others were R.M., age 11; his sister, Sunshine, age 9; C.J., age 2; N.K., age 1; and T.H., age 1 1/2. All these children were removed from the home pending investigation. The investigation, when completed, failed to indicate who inflicted the bruises to J.B.'s back or how they were inflicted. The report was, therefore, closed without classification. Nonetheless, by letter dated November 23, 1993, the Department notified the Respondents that while they might again use their home for the shelter of children, only children 10 years of age and older would be allowed. This was unsatisfactory to the Stephans who are most drawn to the younger children. The Department's restriction was based on the conclusion that the Stephans showed favoritism to some of the children placed with them and on the assertion that certain children, about whom the Stephans had noted aberrant behavioral actions, ceased that behavior when removed from the Stephan home. Mr. Bonollo, the child protective officer who picked J.B. up at the Respondents' home and took him to the Department office noted that Mr. Stephan was quite upset by the removal of the children from the home. When he asked why this action was being taken, Mr. Stephan was told that it was standard Department procedure when an allegation of abuse is made. Mr. Davis, the Gardian ad Litem volunteer who is responsible for J.B., felt from the very beginning of the placement that Respondents did not like the child. They consistently complained about him, noting he didn't have proper clothing or proper paperwork, and Davis felt they liked the other children in their care more. He specifically concluded that N.K. and C.J. were more to the Respondents' liking and received more attention and affection from them. He admits, however, that from his observation, the Respondents were no more harsh in their approach to J.B. than to the other children. Since J.B. was removed from the Respondents' home, he has been doing much better, but he is also six months older than he was at the time he lived there. This might have something to do with the change. According to Ms. Cremer, the protective services worker who oversaw the Respondents' operation, all the children there were given adequate care, food and attention. There seemed to be a good bonding and affection shown by Respondents to the younger children, however, to whom this witness also feels they showed favoritism, blaming J.B. for things the younger ones did. She was bothered by the fact that the Respondents discussed the older children's behavior in their presence, commenting about destruction of property, wasting of food, and cutting the bed with a knife, for example. While she never saw any physical abuse by either Respondent, Ms. Cremer felt their reporting of the older children's misconduct was abuse. Respondents deny showing any favoritism to any child though there is some indication they wanted to adopt C.J.. Departmental policy in cases of this nature, where abuse is alleged and the report is later closed without classification, is to submit a copy of the report for review by an administrator who can, and did here, make the decision to restrict the age and type of children who can be accommodated in a foster home. The decision to restrict children to those 10 and up was made in this case because there were issues in doubt regarding the care of the children even though there was no confirmed report of abuse. Authority for the Department to make that decision is found in Rule 10M-6.025, F.A.C.. The decision was made to place with Respondents only children who were more verbal and more visible and better able to report what happened to them. Here, since so many of the children in the home were unable to accurately verbalize and tell the story, and because the licensing investigator recommended no children under 10, the file was forwarded to L. Britt, a Senior Operations Program Administrator who made the ultimate decision on the restriction. That decision was made on the basis of the report of investigation, the meeting with staff members, the family dynamics, and the increased risk factor for children under 10. Both Departmental rules and pertinent statutes require foster parents to immediately report any injuries to children and this was not done here. Since the decision to restrict as to age was made, the initial restriction against all children has been removed and Respondents have been offered foster children who meet the criteria set in the remaining restriction. Respondents have refused, however. Child care experts from agencies other than the Department, who are familiar with Respondents and how they operate their foster home, indicate Respondents are caring and responsible parents. Their home is set up for children who are treated like family. Mr. Stephan, though big, is not intimidating. In discipline he was firm but not frightening. They impressed Debra Dahl, a representative of the Pinellas Association for Retarded Children, which placed four children with Respondents since 1991, as being caring, very nurturing and very aware of the children's needs. Any children she has placed with Respondents have thrived. Mrs. Stephan worked with children for 9 years while residing in New York, and after moving to Florida, became a substitute care provider for a day care center. She has been licensed as a foster parent, with her husband, for 4 years. They have taken the required training and attend continuing education courses in the field. It has been Mrs. Stephan's experience that most children act up a bit when they come to a new home. Usually, however, the aberrant behavior abates after a while. Prior to the arrival of J.B., the only report of bad behavior the Stephans made was concerning S.M. They also, at one time, had a foster child run away from the home and report abuse, but upon investigation by the Department, the report was classified as unfounded. In addition, a report of neglect was filed against them when, upon the advice of a specialist, they took a child off a particular medication, because of bad side effects, two days before he was to be seen by the physician who had prescribed it and who made the report. This report, too, was classified as unfounded. All foster children are supposed to be taken to a doctor within 3 days of placement. In this case, however, because the Department representatives had failed to provide the child's Medicaid paperwork in a timely manner, Respondents did not feel they could take him. A Department representative took the child to a doctor one time and returned him with a prescription for medication, but again, because Respondents did not have the Medicaid paperwork, they did not feel they could have it filled. When they advised the Department worker of this, they were, allegedly, told to forget it because it was for a mole. J.B. also got the same fever all the other children got, but they could get no treatment for him without the paperwork. This pertinent Medicaid paperwork was not provided until 10 days after J.B. came into the Respondents' care and, even then, it was good only for 10 days. Without that paperwork, Respondents could not get medical care for the child without paying for it themselves. The attitude that medical care will be withheld from a child if public funds are not provided immediately is disturbing. In this case, it is fortunate that no serious illness or injury was involved. There is no evidence, however, to indicate what the Respondents' response would have been in a more serious case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondents' protest against the restriction against placing children under the age of 10 in their foster home be denied. RECOMMENDED this 28th day of March, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6588 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Not a Finding of Fact but a stipulation between the parties confirming a previous determination made by the undersigned to change the designation of the parties. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 12. Accepted and incorporated herein. Accepted. & 15. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact. More a recitation of and comment on the evidence. Not a Finding of Fact but a recounting of the testimony of a witness. FOR THE RESPONDENT: Not a Finding of Fact but a stipulation between the parties confirming a previous determination made by the undersigned to change the designation of the parties. - 4. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 9. Accepted and incorporated herein. 10. & 11. Accepted and incorporated herein. Accepted and incorporated herein. - 17. Not Findings of Fact but recitations of testimony. 18. - 20. Accepted. Accepted. Not a Finding of Fact but a recitation of testimony. Rejected. A probability of abuse, (injury caused by someone), was indicated, but the identity of the perpetrator was not determined. COPIES FURNISHED: Frank H. Nagatani, Esquire David Jon Fischer, Esquire Department of Health and Rehabilitative Services District V 11351 Ulmerton Road Largo, Florida 34648-1630 James L. Berfield, Esquire Ameri-Life Towers First Floor East 2536 Countryside Boulevard Clearwater, Florida 34623 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
