Findings Of Fact The Parties. The Respondent, the Department of Health and Rehabilitative Services, is a state agency charged with the responsibility for administering Florida's Medicaid program pursuant to Chapter 409, Florida Statutes. The Petitioner, Conval-Care, Inc., is a home health care agency of the State of Florida. Conval Care was created by Inez Browning in 1983. Conval Care is a Small Business Party. Conval Care has never employed twenty-five or more full-time employees. Conval Care's net worth has never equaled or exceeded $2,000,000.00. Medicaid Services Provided by Conval Care to Adult Congregate Living Facilities. In 1988, Conval Care qualified as a provider of medical services reimbursable pursuant to Florida's Medicaid program. Subsequent to becoming a Florida Medicaid provider, Conval Care began providing home health services to, among others, residents of three adult congregate living facilities (hereinafter referred to as an "ACLF"). Conval Care received Medicaid reimbursement for the services it provided to residents of the three ACLF's it serviced. Department Concerns About Services Provided to Residents of ACLFs by Home Health Care Agencies. Prior to May 1, 1991, various employees of the Department discussed various issues concerning the appropriateness of Medicaid reimbursement for services provided by home health care agencies to residents of an ACLF. At no time relevant to this proceeding did the Department conclude that under no circumstances would it be appropriate to make Medicaid reimbursements for services provided by a home health care agency to residents of an ACLF. To the extent that the Department had unresolved legal questions concerning the appropriateness of paying Medicaid reimbursements for services provided by a home health care agency to residents of an ACLF, it would not be reasonable for it to take action against Conval Care, or any other home health agency, based upon those unresolved legal questions. The evidence in this case, however, failed to prove that the actions which the Department ultimately took against Conval Care were based upon unresolved legal questions being discussed by the Department. The Department's Medicaid Program Integrity Office. The Department's Medicaid Program Integrity office is charged with responsibility within the Department for overseeing the integrity of the Florida Medicaid program. See Section 409.206, Florida Statutes (1989). The Department's Medicaid Program Integrity office carries out the Department's responsibility for review of the Medicaid program, including fraud investigations. Rule 10C-7.060(3), Florida Administrative Code, provides the following: Any suspected criminal violation or fraudulent activity by any provider shall be referred by the department to the Medicaid Fraud Control Unit in the Office of the Auditor General for investigation. Rule 10C-7.060(5), Florida Administrative Code, provides the following: (5) The determination that a violation has occurred is a function of the Medicaid Program Integrity Office. The determination shall be based upon investigations completed by that office or relevant information from other offices and agencies. Based upon Rule 10C-7.060(5), Florida Administrative Code, the Department is charged with the ultimate responsibility for determining if a violation of Medicaid law has occurred. Therefore, it would be unreasonable for the Department to take action against a Medicaid provider based upon the conclusions of any other agency without independent evaluation by the Department. Rule 10C-7.060(5), Florida Administrative Code, also requires that the Department, in determining whether a violation of Medicaid law has occurred, base its decision on its own investigation or "relevant information from other offices and agencies." The Department is, therefore, required to consider information provided to it by the Medicaid Fraud Control Unit of the Office of the Auditor General. Rule 10C-7.060(4), Florida Administrative Code, provides the circumstances pursuant to which the Medicaid Program Integrity office may impose administrative sanctions on providers of Medicaid services in Florida. The specific administrative sanctions which may be imposed, and the procedures to be followed, in imposing sanctions are set out in Rule 10C-7.060, Florida Administrative Code. "Guidelines for Administrative Sanctions" are set out in Rule 10C-7.063, Florida Administrative Code. The Medicaid Fraud Control Unit. The Medicaid Fraud Control Unit (hereinafter referred to as "Medicaid Fraud"), is a part of the Florida Office of the Auditor General. See Section 409.2664, Florida Statutes (1989)(repealed effective June 5, 1991, Chapter 91- 282, Laws of Florida). Section 409.2664, Florida Statutes (1989), provided, in pertinent part, the following: . . . the Auditor General shall: Investigate the possible criminal violation of any applicable state law pertaining to fraud in the administration of the Medicaid program, the provision of medical assistance, or the activities of providers of health care under the state Medicaid program. . . . . Refer to the Department of Health and Rehabilitative Services all potential noncriminal abusive activities. Refer to the Department of Health and Rehabilitative Services for collection all instances of overpayment, discovered during the course of investigation, made to any providers of health care under the state Medicaid program. . . . . Pursuant to Section 409.2664, Florida Statutes, investigative reports prepared by Medicaid Fraud are routinely referred to the Department's Medicaid Program Integrity office. The Medicaid Program Integrity office routinely relies on investigative reports prepared by Medicaid Fraud. The Investigation of Conval Care. Ellen Williams, a medical health care program analyst for the Medicaid Program Integrity office, first became aware of Conval Care in January or February, 1990, while Ms. Williams was reviewing a "Provider Top 100 Report." A "Provider Top 100 Report" is a report prepared by the Department on a routine basis which lists the top 100 providers of Medicaid services based upon the amount of Medicaid funds a provider is paid. The Provider Top 100 Report reviewed by Ms. Williams in early 1990 listed Conval Care as the top home health care services' provider for the first time. Ms. Williams had not seen the name Conval Care before on the list. Ms. Williams was curious about why Conval Care had appeared on the list. Ms. Williams decided to look into the matter further. Ms. Williams subsequently learned that Medicaid Fraud was involved in an investigation of Conval Care. Ms. Williams, therefore, discontinued her investigation of Conval Care. Ms. Williams referred the matter to Medicaid Fraud in March, 1990, as contemplated by Section 409.2664, Florida Statutes, and Rule 10C-7.060(3), Florida Administrative Code. The May 1, 1991, Investigative Report. At some time after May 1, 1991, Ms. Williams received an unsigned Investigative Report dated May 1, 1991, from Medicaid Fraud (hereinafter referred to as the "Investigative Report"). Respondent's exhibit 1. The Investigative Report includes conclusions concerning various possible violations of Medicaid laws which may have been committed by Conval Care. In support of those alleged violations, the Investigative Report also includes fairly substantial factual bases for the violations. The evidence in this case failed to prove that the facts recited in the Investigative Report, if proved to be true, would not support a finding that Conval Care had committed serious violations of various Medicaid provisions. In particular, the Investigative Report concludes that Conval Care has served patients, who reside in and out of ACLFs, that were not "homebound" as required by the Medicaid providers' manual. The Investigative Report also concludes that Conval Care provided services which were rendered "while no valid signed physician's authorization was in effect . . . " as required by the Medicaid providers' manual. Further, the Investigative Report concludes that Conval Care provided services which were not "medically necessary". The facts relied upon by Medicaid Fraud to reach these conclusions are set out in the ten page Investigative Report. The Investigative Report concludes that Conval Care improperly received $591,082.00 from Medicaid for services to individuals (ACLF residents and non-ACLF residents). It also concludes that $241,582.00 of the $591,082.00 were improperly received for services that were rendered while no valid signed physician's authorization was in effect and the remaining $349,500.00 was improperly received for services that were not "medically necessary". The Department's Reliance on the Investigative Report. Based upon a review of the Investigative Report, Ms. Williams applied the provisions of Rule 10C-7.063, Florida Administrative Code, to determine the appropriate administrative sanction to be imposed on Conval Care. The weight of the evidence proved that the Department properly applied the provisions of Rule 10C-7.063, Florida Administrative Code. Based upon Ms. Williams determination of the appropriate administrative sanction to be applied to Conval Care, Ms. Williams prepared a draft of a letter which she recommended the Department send to Conval Care. The draft letter prepared by Ms. Williams and the Investigative Report were reviewed by appropriate officials of the Department. The draft letter was ultimately approved. Ms. Williams, and the Department's, only basis for the action the Department took against Conval Care was the Investigative Report. Ms. Williams also relied on an investigation of what appeared to be a similar home health care agency named Underhill Personnel Services (hereinafter referred to as "Underhill"). Underhill, another home health care agency, was providing home health care services to residents of ACLF's. The services being provided by Underhill were similar to the services reported in the Investigative Report. Ms. Williams, however, had no independent basis for concluding what services Conval Care was, or was not, providing to ACLF's except as reported in the Investigative Report. The Investigative Report was an interim report. The Department was informed in July, 1991, that Medicaid Fraud's investigation of Conval Care was still ongoing. The evidence failed to prove that the conclusions recited in the Investigative Report, however, were of an interim nature or that the Department should have waited to act on the facts related in the Investigative Report. The Termination Letter. The draft letter prepared by Ms. Williams and approved by the Department was dated May 20, 1991, was signed by John M. Whiddon as Chief of the Department's Medicaid Program Integrity office and was sent to Conval Care (hereinafter referred to as the "Termination Letter"). The Termination Letter informed Conval Care that its participation in the Medicaid program in Florida was being terminated "for violation of federal and state laws and regulations respecting the Medicaid program, effective on the date of your receipt of this letter, subject to your right of appeal as discussed below." The Termination Letter also informed Conval Care that the Department was seeking reimbursement of $591,082.00 in Medicaid funds paid to Conval Care which the Department believed were for services that did not constitute "home care" as defined in Section 11.3 of the Medicaid Home Health provider handbook. The Termination Letter further informed Conval Care of the following: $349,500.00 (of the $591,092.00) had been paid to Conval Care for services that were not "medically necessary" as required by Rules 10C- 7.044(1)(e) and (i), (5)(a)3 and (14), Florida Administrative Code; $241,582.00 (of the $591,092.00) had been paid to Conval Care for services that were rendered while no valid signed physician's authorization was in effect in violation of Rules 10C-7.044(1)(e) and (i) and (5)(a)1-2, Florida Administrative Code; The Department, in addition to terminating Conval Care's participation in the program, was seeking reimbursement of the $591,092.00 overpayment and imposing an administrative fine of $5,000.00; and No further Medicaid payments would be made to Conval Care. The information contained in the Termination Letter was taken by Ms. Williams from the Investigative Report. For some reason which has not been explained in this case by either party, the Department did not inform Conval Care in the Termination Letter that the $591,092.00 reimbursement was also being sought by the Department because the persons who received the services were not "homebound", as concluded in the Investigative Report, even though Ms. Williams agreed with the conclusions of the Investigative Report concerning the fact that the recipients of services were not homebound. After Conval Care received the Termination Letter, the Department stopped all Medicaid payments to Conval Care. As a result, Conval Care closed within three months after receiving the Termination Letter. The Department should have been aware of this possible consequence. The weight of the evidence in this case failed to prove that the conclusions reached by the Department concerning possible violations of Medicaid law by Conval Care as set out in the Termination Letter were not reasonably supported, both factually and legally, by the allegations contained in the Investigative Report. If the alleged facts contained in the Investigative Report proved to be true, it cannot be concluded that the acts which the Department concluded Conval Care may have committed were not in fact violations of Medicaid law. Conval Care's Attempts to Obtain Advice. Prior to receiving the Termination Letter, but after the investigation of Conval Care had begun, Inez Browning, the President of Conval Care, attempted to discuss the propriety of providing Medicaid services through Conval Care to residents of ACLFs. Ms. Browning contacted several Department employees, including Ms. Williams, to discuss the matter. The only concern expressed by Department employees to Ms. Browning about the propriety of a home health care agency providing Medicaid services to residents of an ACLF in response to her inquiries involved the unavailability of Medicaid funds to cover such services. In light of the fact that the Department was aware that there was an ongoing criminal investigation of Conval Care by Medicaid Fraud, the evidence failed to prove that the Department's actions in failing to warn Ms. Inez of any potential violations Conval Care may have been committing was unreasonable. The Prosecution of the Termination Letter. After receiving the Termination Letter, Conval Care filed a request for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, to contest the proposed actions of the Department expressed in the letter. Conval Care's request for hearing was filed by the Department with the Division of Administrative Hearings in June, 1991. The matter was designated case number 91-4020 and was assigned to the undersigned. Between June, 1991, and December, 1991, the parties pursued discovery and began preparations for the formal hearing in case number 91-4020. On December 18, 1991, the parties requested that case number 91-4020 be continued to give the parties an opportunity to pursue a possible settlement of their dispute. Case number 91-4020 was continued from December, 1991, until March, 1992. On March, 18, 1992, a Fourth Notice of Hearing was entered rescheduling the final hearing of case number 91-4020 for July 27-31, 1992. Between March, 1992, and July, 1992, discovery continued in case number 91-4020. On July 14, 1992, the Department filed a Motion for Leave to Amend Termination Letter and an Amended Termination Letter. In the Amended Termination Letter, the Department, for the first time, attempted to raise the issue of whether certain recipients of care provided by Conval Care were "homebound". The Department also attempted to add three other "counts" which Conval Care had not previously been put on notice of. The Department's effort to amend the Termination Letter, in light of the fact that it had been over a year since the original Termination Letter had been issued, and the fact that the final hearing of case number 91-4020 was scheduled for the week after the request to amend was filed, was denied. The Department requested, and was granted, a continuance of the final hearing scheduled to commence July 27, 1992, due to the hospitalization of counsel for the Department in case number 91-4020. The hearing was rescheduled to commence August 7, 1992. On August 5, 1992, only two days before the scheduled commencement of the final hearing in case number 91-4020, the Department filed a "Notice of Voluntary Dismissal". After the undersigned informed the Department that it was not in a position to "voluntarily dismiss" case number 91-4020, the Department informed the undersigned that the filing of the Notice of Voluntary Dismissal by the Department was intended as a notice of withdrawal of the Termination Letter by the Department. Therefore, an Order Closing File in case number 91-4020 was entered on August 13, 1992. The Department's compliance with discovery requests of Conval Care during the pendency of case number 91-4020, was less than adequate. On more than one occasion, it was necessary to order the Department to respond to reasonable discovery requests of Conval Care. While the Department's failure to reasonably respond to discovery requests may suggest a lack of evidence to support the Department's actions, the evidence failed to support a finding that there were not other reasons for the Department's actions. The evidence also proved that there were indications to the Department during discovery in case number 91-4020 that there could be problems with some of the facts of the Investigative Report which had been relied upon by the Department. Those problems and alleged problems which Conval Care has suggested in Conval Care's proposed final order in this case are not, however, sufficient to prove that the Department should have known that the alleged facts of the Investigative Report it had relied on in issuing its Termination Letter were insufficient to continue to pursue the charges it had made in case number 91- 4020. The weight of the evidence in this case, including the file in case number 91-4020, failed to prove why the Department chose not to pursue the charges of the Termination Letter. The evidence failed to prove that the Department "knew by [the time it withdrew the Termination Letter] that it couldn't win."
The Issue The issue is whether respondent should be fined $3,350 for allegedly violating various agency rules.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Barbara Knight Manors, Inc., d/b/a Four Palms (Four Palms or respondent), operates a licensed adult congregate living facility (ACLF) at 302 11th Avenue Northeast, St. Petersburg, Florida. The facility is subject to the regulatory jurisdiction of petitioner, Department of Health and Rehabilitative Services (HRS). As such, Four Palms is required to adhere to various HRS rules codified in Chapter 10A-5, Florida Administrative Code (1987). On December 3, 1987, an HRS program analyst, Diane Cruz, conducted a change of ownership survey of respondent's facility. The survey was prompted by the fact that the facility had just been purchased by its present owner, Barbara Knight. During the course of the survey, Cruz noted the following deficiencies which constituted a violation of applicable portions of Chapter 10A-5, Florida Administrative Code (1987): the patient daily medication records were incomplete in that some medications administered to patients had not been documented by the staff (10A-5.024(1)(a)3., FAC); (2) two employees did not have medical certificates reflecting they were free from communicable diseases (10A-5.019(5)(g), FAC); there were no standardized recipes (10A- 5.20(1)(g), FAC) the facility did not have a one week supply of non-perishable food (fruit and vegetables)(10A-5.20(1)(k), FAC) two showers did not have grab bars (10A- 5.023(9), FAC); and there were no screens on the windows (10A-5.023(13), FAC) The deficiencies were noted in a survey report received in evidence as petitioner's exhibit 4. A copy of the survey report was given to the facility's administrator on January 14, 1988. The report advised the licensee that monetary fines could be imposed if the violations were not timely corrected. At the completion of the December 3 survey, Cruz held an exit interview with Knight and explained the reason why each deficiency was cited and the steps required to correct the same. Also, Cruz advised Knight that all deficiencies had to be corrected no later than February 3, 1988 and that she would return for an unannounced follow-up visit to verify whether such deficiencies had been corrected. An "exit letter" confirming this process was furnished to Knight, and Knight signed and acknowledged receiving the letter. On March 2, 1988, Cruz returned to the facility for an unannounced follow-up visit. The purpose of the visit was to ascertain whether the deficiencies noted on December 3 had been corrected. During the visit, Cruz observed the following deficiencies that had not been corrected: The daily medicine records were still not accurately documented (initialed); one staff member had no medical certi- ficate attesting she was free from communicable diseases; there were no standardized recipes; the facility did not have a one week supply of non-perishable food (fruit and vegetables) on hand; two showers did not have grab bars; and two bedrooms did not have screens on the windows. As the result of an unidentified complaint, an HRS analyst, Sharon McCrary, visited respondent's facility on March 28, 1988. McCrary discovered that one resident's records had not been properly documented (initialed) to reflect that the staff had observed the patient receiving medication that morning. This violation was the same type that had been previously noted during the December 3, 1987 survey. On June 24, 1988, Cruz and a registered dietician, Mary Cook, returned to Four Palms to conduct a routine, annual survey. During the course of their survey, the two noted the following deficiencies that constituted violations of chapter 10A-5: there were three employees who had no medical certificate showing they were free from communicable diseases (10A-5.019(5)(g), FAC); three residents required supervision when given medications, but there was no licensed nurse on the staff to supervise this activity (10A-5.0182(3)(c), FAC) the facility had no activities calendar (10A-5.0182(7)(a), FAC) live roaches were observed in the kitchen area (10A-5.020(1)(n)1., FAC); the facility did not have a one week supply of powdered milk on hand (10A- 5.020(1)(k), FAC) there were no meal patterns or modified menus at the facility (10A-5.020(1)(e), FAC), and a county sanitation report citing various health deficiencies contained no evidence that such deficiencies had been corrected (10A-5.024(1)(d)2.a., FAC). An exit interview was conducted after the survey, and respondent was advised that it had until July 24, 1988 in which to correct the deficiencies. Also, a copy of the survey report was furnished to respondent. On September 13, 1988, an unannounced follow-up survey was conducted by Cruz and Cook to determine if the previously noted deficiencies had been corrected. They observed the following deficiencies that were not corrected: One staff member had no medical certificate reflecting he was free from communicable diseases; the facility's records indicated one resident required supervision when given medications but the facility did not employ a licensed nurse; although an activities calendar had been prepared, it was incomplete; there were no modified menus in the kitchen; live roaches were observed in the kitchen area; and the deficiencies noted on the county health inspection report had not been corrected. Respondent did not deny that many of the violations occurred. However, its owner and administrator argued that HRS was unfair in filing an administrative complaint more that a year after the first violations were noted. The facility maintained that HRS should have assisted it in remedying the violations since the owner had just purchased the business a few months earlier and was going through a "learning curve." The owner contended that many of the chapter 10A-5 requirements were impractical for a small ACLF and that HRS was simply "nit-picking." Knight also claimed she did not understand what she had to do in order to meet HRS rule requirements. Respondent offered a number of excuses as to why the violations occurred. For example, she contended that (a) the screens were off the windows because the windows were being painted, (b) her employees either would not bring their medical certificates to work or would not see a doctor to obtain one, (c) the quantity of non-perishable foods required to be kept on hand was a judgment call and was not susceptible to precise measurement, (d) roaches can never be totally eradicated in Florida, (e) one of the bathrooms without a grab bar was not being used by the residents, (f) the patient medication records were inaccurate or incomplete due to a misunderstanding by the physician who had prepared some of those records, and it is impossible to prepare a detailed, accurate activities calendar for ACLF residents. While these matters may serve to mitigate the severity of any penalty to be imposed, they do not excuse or justify the rule violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint and that it pay an administrative fine of $1600, or $100 per violation DONE and ORDERED this 3rd day of October, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of October, 1989.
The Issue Whether Respondent, a day-care center, committed the violations alleged in the Administrative Complaint, and if so, the penalties Petitioner should impose against Respondent.
Findings Of Fact Petitioner is the regulatory authority responsible for licensure and enforcement of day-care centers in Florida. Respondent is a day-care center in Miami, Florida, and currently holds child care license C11MD0340. Respondent has operated as a day-care center since April 19, 1990. At the time of the formal hearing, Kevin Lennon was the owner and operator of Respondent. S.B. and L.B. are young sisters who stayed at Respondent’s day-care center in July 2014. On July 9, 2014, one of Respondent’s employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. Mr. Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister’s share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Petitioner offered no competent, credible evidence to refute Mr. Lennon’s testimony. On March 25, 2014, Petitioner received from Respondent an “Application for a License to Operate a Child Care Facility” (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon’s signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran’s notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. Petitioner offered insufficient evidence to refute that testimony. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon’s signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran’s notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as “Kevin Lennon.” Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Petitioner offered no competent, credible evidence to refute that testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 9th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 9th day of January, 2015. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street, Suite 210 Miami, Florida 33156 (eServed) Karen A. Milia, Esquire Department of Children and Families 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 (eServed) Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399 (eServed) Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's licensure to operate a child-care facility in Leesburg, Florida, should be denied, under relevant authority cited below.
Findings Of Fact This dispute arose when the Department notified the Petitioner, by letter of January 16, 2009, that the application submitted by the Petitioner to authorize operation of a child- care facility was denied. The facility was to be located at 1329 Marshall Drive in Leesburg, Florida. The application was submitted on October 23, 2008. Upon being informed of the intended denial of the Application for Licensure, the Petitioner requested an administrative hearing and the dispute was transferred to the Division of Administrative Hearings for adjudication. The Department had denied the application based on a history of serious violations of statutes and rules, related to the safety of children, during the Petitioner's previous operation of Small Fries Daycare Center in 2004. The renewal of licensure for Small Fries, as well as an application for licensure to operate a second facility, "The Learning Tree," was denied after a hearing before an Administrative Law Judge, by a Final Order entered by the Department on December 12, 2005. The Petitioner offered no credible evidence to show why the previous, serious violations would not re-occur if the subject facility was granted licensure. The Petitioner's testimony was somewhat contradictory and she appeared focused on the wrongs she believes were done with regard to her licensure and her facilities in the 2004 dispute, as much as on the present application dispute. She offered no evidence of additional training or rehabilitation since her flawed operation of the Small Fries facility, other than her own self-serving statements. Although she testified that she would be a good operator and follow all relevant rules, she testified in a misleading fashion as to her credentials and training. It became apparent that she was reading from a list of available, relevant educational courses for operators for daycare facilities, but provided no proof that she had actually completed the courses. She also admitted that she did not have the required Director's credentials to operate a child-care facility. She offered no employment history and testified that she had, in fact, not worked since the closure of the Small Fries facility, in 2005, by the above-referenced Final Order. The findings in the Recommended Order in that case, as adopted in the Final Order, entered in 2005, established that the Petitioner was responsible for a number of violations of statutes and rules pertaining to licensure and safe operation of her child care facility.1 The Petitioner made a misrepresentation of a critical fact on her application. The primary reason the Respondent took the position that licensure in this case should be denied was the past operational and licensure history of the Petitioner and her facility, which culminated in the referenced Recommended and Final Orders denying licensure. There were multiple legal violations which resulted in her loss of licensure. On the subject application the Petitioner misrepresented a critical fact by failing to acknowledge that she had her licensure denied in the past. Ultimately, the Petitioner admitted in testimony that she had not been truthful on her application when she answered the question at issue and did not disclose a previous licensure denial. Moreover, there is no dispute that the Petitioner's application to operate the day care facility was incomplete at the time it was submitted. The Petitioner ultimately, and reluctantly, admitted in testimony that she did not have a Certificate of Occupancy for the building, did not have the required sanitation and environmental inspection from the Health Department, nor an approved fire inspection. These are all items that are required to be obtained before an application can be considered complete and subject to being granted, under the relevant Department rules. These were all items that the Petitioner knew or should have known must be submitted for an application to be complete. The Department, as a routine procedure, reviews applications for completeness and required documentation. If items are missing, the Department sends a letter to the applicant, within 30 days of receipt of the application, in order to comply with Section 120.60(1), Florida Statutes (2009). The Department Licensing Counselor, Ms. Burleson, sent the letter containing the list of missing items to the Petitioner at the address of record on November 19, 2008. This was well within 30 days of the application submission (October 23, 2008) in compliance with Section 120.60(1), Florida Statutes (2009). The Petitioner was informed of the lack of information, and the need to supply it, by the Department after the filing of her application during the fall of 2008. She maintained that she had faxed the information to the Department, which proved not to be true. The Department never received any faxed information prior to the letter sent by Ms. Burleson to the Petitioner on November 19, 2008, specifically listing missing items. Moreover, the Petitioner also admitted that the Fire Department was requiring her to install additional sprinklers in the second floor of the building she proposes to use for her facility, before she could receive the necessary approval. She stated that this was a large expense that she was not able to complete at this time. The Petitioner contended that had she known within 30 days which specific items were missing from her application, as to compliance with licensure requirements, she would have had time to complete them. That statement is not credible and, indeed, the Petitioner's own testimony refutes it. The Petitioner admitted that she did not have the required health and fire inspections or the Certificate of Occupancy as late as the date of the hearing. She claimed to have faxed the missing CPR certificate to the Respondent in December 2008, after the date of the letter, November 19, 2008, informing her of missing items. In fact, the purported fax of the missing certificate never happened. The Petitioner also claimed to have taken some of the missing items with her to a meeting she had with Ms. Burleson on January 16, 2009. If she did not know what items were missing from her application, because of purportedly not having received the November 19, 2008, letter (even though she executed the application herself) then she could not have known what to fax to the Department or take with her to the meeting with Ms. Burleson. In fact, however, the missing items referenced in these findings of fact remain missing from the application, rendering it non-compliant, as of the date of the hearing. The Petitioner's testimony that she did not receive the November 19, 2008, letter from the Department is not credible. It is not supported by any evidence produced by the Petitioner. The Petitioner admitted that the address on the letter (241 Mont Clair Road, Leesburg, Florida) is her current mailing address and the address where she currently receives mail. She admitted receiving the September 8, 2008, letter from the Department, as well as the Notice of Intent which she later completed and returned to the Department. Her statement that she did not receive the November 19, 2008, letter from the Department, advising her of incomplete documentation is inexplicable and not credible, given the evidence that she knew what was missing from her application. The Petitioner knew, or should have known, that at the time she requested the hearing and at all times through the hearing date that she could not possibly meet the requirements for licensure. This is because she admittedly lacked the four critical items required for licensure: a current Directors Certificate; an Occupancy Permit for the building from the City of Leesburg; an approved Health and Sanitation Report from the Lake County Health Department; and an approved Fire Safety Inspection and evidence of it. The Petitioner instead, admitted at the hearing that she had chosen not to comply with the fire inspection requirement, which would result in the addition of more fire sprinklers, because they were too expensive. The Petitioner's refusal to expend time and money to comply with the licensing requirements, in essence, resulted in her demanding a hearing when the inevitable Notice of Intent to Deny Licensure was issued from the Department. This resulted in the expenditure of resources by the Department and the Division of Administrative Hearings, when such use of resources for the formal hearing process might have been avoided. In essence, she approached the hearing as an attempt to re-try the prior facts which resulted in her loss of licensure in 2005, rather than make a more affirmative showing of how she could comply with the licensure and operational requirements attendant to the potential grant of the subject application.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Children and Family Services denying the application in its entirety. DONE AND ENTERED this 5th day of October, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2009.
