The Issue The issue is whether Petitioner's applications to renew licenses for two Residential Level II facilities in Davenport, Florida, should be denied and a $2,500.00 fine imposed for the reasons given in the Department of Children and Families' (Department) Amended Denial of Applications & Imposition of Fines issued on February 8, 2018.
Findings Of Fact Background The Department is charged with the responsibility of regulating the licensing and operation of residential treatment facilities pursuant to chapter 397, Florida Statutes (2017). Petitioner is a Delaware limited liability corporation authorized to conduct business in the State of Florida. Subject to the outcome of this proceeding, Petitioner is licensed to operate two Residential Level II facilities in Davenport under the name Cares Treatment. One facility is located at 146 Sunset View Drive (Case No. 18-0230), the other at 389 Sand Ridge Drive (Case No. 18-0234). The licenses were issued on December 15, 2016, and were to expire on December 14, 2017. Each license authorizes Petitioner to "provide substance abuse services for Adults and/or Children/Adolescents for the following component: Residential Level 2 (6 beds)."4/ Resp. Ex. 2. The Torres family home is not a licensed facility and services cannot be provided to residents who reside at that location. Petitioner is not licensed to provide services under the Partial Hospitalization Program (PHP), the Outpatient Program (OP), or the Intensive Outpatient Program (IOP).5/ These services require a separate license from the Department. In December 2017, Petitioner filed with the Department new applications to provide those services. However, the applications were denied and no appeal was taken. According to the renewal applications, Petitioner provides a "residential treatment facility for children and adolescents." Resp. Ex. 3. Each facility "is a free-standing residential facility which provides a structured living environment within a system of care approach for children, adolescents and adult[s] who have a primary diagnosis of mental illness or emotional disturbance and who may also have other disabilities." Id. Petitioner's facilities are a family-run business. Roberto Torres, Jr. (Mr. Torres), is the Chief Executive Officer and manager of the limited liability corporation; Cecilia Torres, his wife, is the Treasurer/Chief Financial Officer; Karla Torres, a daughter, is the Vice President/Chief Administrative Officer; Roberto Torres, III (the son), is the Secretary/Chief Information Officer; and Kristina Torres, a daughter, is the Ambassador/Chief Relationship Officer. Resp. Ex. 4. On November 27, 2017, Petitioner filed its applications for renewal of the two licenses. On December 1, 2017, the Department issued separate, but identical, letters denying both applications on the grounds they were not timely filed and they were incomplete. Resp. Ex. 5. On February 16, 2018, the Department was authorized to amend its letters of denial with a single amended denial document, which combined the original charges in the two letters into Counts I and II and added new Counts III, IV, and V. Resp. Ex. 1. The amended denial letter also seeks to impose a $2,500.00 administrative fine for violating various Class II rules. The specific rules are not identified in the original or amended charging documents, but the Department's PRO cites Florida Administrative Code Rule 65D- 30.003(1)(a) and "rules set forth in 65D-30" as the rules on which it relies. Because proper notice of the specific rules was not given, the rule violations have not been considered. The charges in the amended denial letter can be summarized as follows: Count I - The application for the facility at 146 Sunset View Drive was not timely filed and was incomplete in violation of sections 397.403 and 397.407(8). Count II - The application for the facility at 389 Sand Ridge Drive was not timely filed and was incomplete in violation of sections 397.403 and 397.407(8). Count III - In November 2016, O.G., a 16-year-old female who had been recently discharged from a Baker Act facility, was admitted for treatment of substance abuse and mental health issues. After residing a few months at the Sunset View location, she was moved to the Torres family home, an unlicensed facility, where she remained for one or two months. By providing services at that unlicensed location, Petitioner violated section 397.401(1). She was then moved to the Sand Ridge location for two or three months before being returned to the Torres family home. She continued to receive substance abuse treatment at the family home until her discharge two or three months later. This constitutes a second violation of the same statute. While under the care of Petitioner, O.G. was subjected to actions which resulted in verified abuse reports against Mr. Torres and his son and contributed to the delinquency and exploitation of a child. Such conduct constitutes a threat to the health or safety of O.G. in violation of section 397.415(1)(d). Count IV - On October 19, 2017, J.W., who transferred from a Baker Act facility, was accepted by Petitioner for care and to receive "partial hospitalization program" services, which Petitioner is not licensed to provide. This constitutes a violation of sections 397.401(1) and 397.415(1)(a)2.c. J.W. was later discharged in contravention of his wishes and desires, which resulted in him relapsing and again being Baker Acted. This conduct constitutes a threat to J.W.'s health or safety in violation of section 397.415(1)(d). Count V - On January 23, 2018, the Department attempted to conduct an onsite inspection at both licensed facilities to review J.W.'s files, but was denied access to the premises. Petitioner later failed to respond to a written request by the Department for records relating to J.W. and O.G. This conduct constitutes a violation of section 397.411. The charging document asserts the conduct in Count III violates four Class II rules (not otherwise identified), for which a $500.00 fine should be imposed for each violation; and the conduct described in Count IV violates "applicable" Class II rules (not otherwise identified), for which a single $500.00 penalty should be imposed. Rule 65D-30.003(1)(a), the only rule cited in the Department's PRO, requires in relevant part that "all substance abuse components" be provided "by persons or entities that are licensed by the department pursuant to Section 397.401, F. S." The Charges Counts I and II Section 397.407(8) provides that "the Department may deny a renewal application submitted fewer than 30 days before the license expires." For Petitioner to meet this deadline, license renewal applications were due on or before November 15, 2017. An application is not considered filed until an application with the signature of the chief executive officer is submitted by the applicant. Around 3:30 p.m. on November 27, 2017, Mr. Torres spoke by telephone with Ms. Harmon, the Department System of Care Coordinator, regarding three new licensure applications he was filing. During the conversation, he was reminded that renewal applications for his two existing licenses had not been filed. Mr. Torres responded that he "would have to get on that." Properly signed renewal applications were submitted electronically at 5:00 p.m. and 5:42 p.m. that afternoon. In his cross-examination, Mr. Torres attempted to establish that the Department's website, the Provider Licensing and Designation System (PLADS), was periodically inoperative, and this prevented him from filing his on-line applications in a timely manner. However, there is no credible evidence to support this claim. In fact, after Mr. Torres raised this issue early on in the case, Ms. Harmon reviewed the activity log of Mr. Torres' two on-line applications and found that he began the application process in late August or early September 2017, but did nothing further until he hit the submit button after speaking with her on November 27, 2017. Also, during this same period of time, the PLADS program (to which all applicants have access) indicated that the applications were in "Waiting Approval" status, which meant the applications were "in process" but had never been submitted. Therefore, the applications were not timely filed.6/ Section 397.403(1)(f) requires license applications to include, among other things, "proof of satisfactory fire, safety, and health inspections." Neither application filed on November 27, 2017, included an updated Treatment Resource Affidavit, a current Fire and Safety Inspection form, and a complete and current Health Facility and Food Inspection form. Therefore, the applications filed on November 27, 2017, were incomplete. Count III On November 17, 2016, O.G., then a 16-year-old female, was admitted for treatment at the facility. O.G. had a history of bi-polar episodes, depression, and drug abuse. Before seeking treatment at Petitioner's facility, she had been Baker Acted twice. After learning about Petitioner's facility through another provider, O.G.'s family placed her in the facility to address her substance abuse and behavior problems. Upon admission, a treatment plan was devised by a licensed mental health counselor (LMHC), with a target completion date of May 17, 2017. Resp. Ex. 10. The treatment plan listed four staff members overseeing her case: Karla Torres (case manager); the LMHC; and S.F. and K.V., two "caregivers" or interns. Id. O.G. was discharged from the facility nine months later on August 14, 2017. Petitioner was paid approximately $166,000.00 by O.G.'s parents for her nine-month stay. O.G. was initially placed in the facility located at 146 Sunset Drive, where she remained for approximately three months. She was then moved to the Torres family home at 2347 Victoria Drive in Davenport for two or three months. The Torres home is not a licensed facility. By housing her at an unlicensed location and providing services during that period of time, Petitioner violated section 397.401(1), which makes it unlawful to provide substance abuse services at an unlicensed location. O.G.'s parents were unaware that their daughter was residing in the unlicensed family home. After Mr. Torres and O.G. "got into an argument," she was moved to the facility at 389 Sands Drive for several months. She then returned to the Torres home, where she remained for two or three months until she was discharged. By housing her at an unlicensed location and providing substance abuse services, Petitioner violated section 397.401(1) a second time. During her stay at the Torres home, Mr. Torres discussed "sex" with O.G.; he told her that he cheated on his wife; and he complimented her "quite a few times" for having "a nice body." He also told her that "18" was a special age and if she were 18 years old, things would be different. He added that her parents were "too strict." These highly inappropriate comments were especially egregious in nature, given the fact that O.G. was a minor with mental health and substance abuse issues, and she was living in the licensee's family home. One photograph of O.G. taken in the home shows Mr. Torres standing in the background donned in his pajamas. Resp. Ex. 16. These actions constitute a violation of section 397.415(1)(d)2., which makes it unlawful to commit an intentional or negligent act materially affecting the health or safety of an individual receiving services from the provider. Mr. Torres occasionally escorted O.G. to two local bars (Miller's Ale House and Marrakesh Hooka Lounge) in Champions Gate. On one visit to Miller's Ale House in April or May 2017, he purchased her a Blue Moon beer, even though she was a minor and in a substance abuse program. She consumed the beer in his presence while the two sat at the bar. Although Mr. Torres attempted (through argument) to deny the incident, O.G. filmed the event on her cell phone. Resp. Ex. 13. This action by him also constitutes a violation of section 397.415(1)(d)2. Petitioner argues in its PRO that the whole incident was a fabrication and the result of a conspiracy by O.G.'s father, the Tampa Police Department, and Department counsel. The contention is rejected. When O.G. was discharged from the residential treatment facility in August 2017, Petitioner enrolled her in another program, IOP, which required her to periodically return to the facility on weekends for further treatment. Her first return visit was the weekend of August 26, 2017. During the weekend visit, the son gave her a cell phone. O.G.'s admission document for the IOP program indicated she would be given IOP services for 60 to 90 days, with a goal of her being substance free at the end of that period. Resp. Ex. 24. There is no record of her being discharged from the program. The Department argues in its PRO that by providing IOP services to O.G., Petitioner was providing a service beyond the scope of its license. However, this allegation was not included in the amended charging document and has not been considered. See, e.g., Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)(a licensee may not be disciplined for an offense not charged in the complaint). After being discharged from her original treatment plan on August 14, 2017, O.G. returned to her mother's home. Except for one weekend visit to Petitioner's facility for IOP services, she remained at home until September 16, 2017. That day, O.G. ran away from home with Preston, a resident she had met at Petitioner's facility. After leaving home, she went to Melbourne, and then to West Palm Beach. A Missing/Endangered Runaway Juvenile bulletin was posted by law enforcement on October 5, 2017. Resp. Ex. 11. During this period of time, Petitioner’s records show that O.G. was still enrolled in the unlicensed IOP program. Resp. Ex. 24. While in the West Palm Beach area, O.G. contacted the son on the cell phone he had given her and told him she had run away from home. She asked him to send her some money so that she could go to Tampa to work in a strip club. Because O.G. was not old enough to accept a wire money transfer, the son wired $600.00 to a friend of O.G., who gave her the money. Using the money provided by the son, O.G. traveled to Tampa and met the son on September 30, 2017. The two went to Todd Couples Superstore, where he purchased several adult entertainment outfits she could wear to audition for a job in a strip club. Resp. Ex. 12. He also purchased her various personal items at a Walgreens. The son then drove her to several clubs to audition for a job. After several auditions, she was hired by Scores Tampa, a local strip joint where "people take off their clothes for money." O.G., who was only 17 years old at the time, signed an employment contract on September 30, 2017, using a borrowed driver's license of S.F., a 21-year-old female. Resp. Ex. 15. S.F. was a former intern at Petitioner's facility and is listed as a member of the team staff on O.G.'s initial treatment plan. By that time, S.F. had left Petitioner's facility and moved back to Tampa. That same evening, O.G. began working in Scores Tampa. O.G. says she took off her clothes while performing. The son remained in the club while she worked. After she got off work at 2:00 a.m., he drove her to S.F.'s house. O.G. continued working at the club for the next few days. With the assistance of local law enforcement, O.G. returned to her mother's home on October 7, 2017. After she ran away from home, and even while working in the club, O.G. maintained contact with Mr. Torres through texts and Facetime and asked him not to report her whereabouts to anyone. Although O.G.'s mother spoke to Mr. Torres on several occasions after O.G. went missing in September 2017, neither Mr. Torres nor the son informed her of the daughter's whereabouts. On November 30, 2017, the Department received a report of alleged human trafficking and sexual exploitation of a child. The alleged perpetrator was the son, while the victim was identified as O.G. Because the son was an employee of Petitioner, an institutional investigation was conducted. The investigation was closed on December 26, 2017, with a confirmed report of Human Trafficking-Commercial Exploitation of a Child against the son. Resp. Ex. 17. During the investigation, Mr. Torres and members of his family declined to be interviewed or answer any questions. Instead, they referred all questions to their attorney. On February 6, 2018, the Department received another report of abuse involving Mr. Torres. The report alleged that in April or May 2017, Mr. Torres transported O.G. to a bar at Miller's Ale House in "Davenport" [sic] and purchased her a beer. After an institutional investigation, the file was closed on March 1, 2018, as verified for Substance Misuse – Alcohol against Mr. Torres. Resp. Ex. 18. See also Finding of Fact 18. Mr. Torres declined to participate in the investigation. By clear and convincing evidence, the Department established that the actions of Mr. Torres and his son presented a threat to the health or safety of O.G. in contravention of section 397.415(1)(d)2. Count IV J.W., who did not testify, is a 42-year-old male who was discharged from a hospital on October 9, 2017 (after being Baker Acted), and admitted to Petitioner's facility the same day to receive PHP services. He was diagnosed as having mental health and substance abuse issues and a history of suicidality. He voluntarily left the facility on November 9, 2017. In its PRO, Petitioner characterizes J.W. as "a disgruntled addict." While a resident at the facility, J.W. received a few video sessions with a Miami Springs psychiatrist, who was identified on the renewal applications as the facility medical director, and he was given online counseling sessions for two weeks by an LMHC, who resided in Palm Bay and worked as an independent contractor with the facility. Neither professional was told by Mr. Torres that Petitioner was not licensed to provide PHP services. By providing PHP services to J.W., Petitioner violated sections 397.401(1) and 397.415(1)(a)2.c. According to the LMHC, on October 24, 2017, she was directed by Mr. Torres, who is not a licensed clinician, to "discharge" J.W. from the PHP program and place him in a lower level of care, Sober Living. Resp. Ex. 25. This would still allow J.W. to remain a resident at the facility but not receive the PHP services. Although the charging document alleges that J.W. did not wish to be discharged from the PHP program, and this caused him to have a relapse in his condition and later Baker Acted again, there is no competent evidence to establish this string of events. Count V Section 397.411 requires all licensees to provide Department representatives access to their facilities and to allow the inspection of pertinent records. Based upon information from a provider in Jacksonville that Mr. Torres had requested its assistance in providing PHP services to J.W., the Department instituted an investigation of Petitioner. In January 2018, the Department attempted to conduct an onsite inspection of Petitioner's facilities and to review the files relating to J.W. The inspectors were denied entry. Thereafter, the Department sent a written request to Petitioner for the records of J.W. and O.G. No records were provided and Petitioner failed to respond to the request. These actions constituted a violation of section 397.411. At hearing, Mr. Torres contended (through argument) that because the Department had already taken preliminary action on December 1, 2017, to deny his applications, there was no requirement that he provide access to the facility or respond to written requests for records. This assertion has been rejected. See § 397.411(1)(c), Fla. Stat. (an application for licensure as a service provider constitutes full permission for an authorized agent of the department to enter and inspect at any time).
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 the applications for renewal of Petitioner's two licenses. An administrative fine should not be imposed. DONE AND ENTERED this 27th day of September, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2018.
The Issue Whether Hospice of Southwest Florida, Inc. has standing to initiate a challenge to the issuance of a license to Hospice of Charlotte, Inc.
Findings Of Fact The facts alleged in the petition, which for purposes of this Motion, are taken as true, are as follows: In a March 10, 1994 letter, the President of HOC notified AHCA that the Board of Directors met that day and decided to dissolve HOC, that the only patient receiving services had been transferred to another provider, and that HOC intended to accept no further referrals. On March 15, 1994, AHCA responded by "terminating the license of Hospice of Charlotte effective March 10, 1994." AHCA requested a copy of the minutes of the March 10th board meeting. On March 25, 1994, the President of HOC wrote to AHCA again, this time requesting review of his letter seeking dissolution, "for the purpose of re- opening our case." He said the Board, on March 10th, intended to restructure the operation and, on March 22nd, met again and approved an agreement to work with another home health agency. Referring in his letter to advice given him in a telephone conversation with agency staff, the President sent HOC licenses number 0046 and 00442 to AHCA. The licenses had April 30, 1994 expiration dates. The letter also stated that HOC and its new partner would re-apply for licensure. In May 1994, HOC requested the return of the renewal license fee sent in on March 3, 1994, for a license that was not pursued. In December, 1994, AHCA investigated an allegation that HOC was continuing to operate without a license and concluded by finding the allegation unconfirmed. HOC had no license after March 1994 until January 31, 1995, when AHCA issued License No. 5015-94 to HOC, effective from May 1, 1994 to April 30, 1995. On April 21, 1995, AHCA notified HOC that its license was void ab initio for failure to first obtain a certificate of need (CON). The following facts are taken from public records at DOAH and from documents submitted by HOC as attachments to the Motion In Opposition: On May 16, 1995, HOC filed a Petition For Formal Administrative Hearing challenging AHCA's April 21, 1995 action voiding its license. On June 1, 1995, the First District Court of Appeal issued an Order to Show Cause by June 7, why a petition to review non-final administrative action should not be granted, and required the agency to specifically address the authority of the agency to revoke HOC's license. On June 7, HOC and AHCA entered into a settlement agreement, pursuant to which HOC voluntarily dismissed its actions at DOAH and in the District Court, and AHCA withdrew its letter of April 21, 1995, and issued HOC a license effective May 1, 1995. There is no evidence in the record of HOC's CON status. Whether HOC has or ever had a CON, or was a grandfathered provider is not know.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency For Health Care Administration enter a Final Order dismissing the Petition For Administrative Hearing filed by Hospice of Southwest Florida, Inc. DONE AND ENTERED this 1st day of September, 1995, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 1st day of September, 1995. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 J. Robert Griffin, Esquire McFarlain, Wiley, Cassedy & Jones, P.A. 215 South Monroe Street Suite 600 Tallahassee, Florida 32301 Peter A. Lewis, Esquire Goldsmith & Grout, P.A. 307 West Park Avenue Post Office Box 1017 Tallahassee, Florida 32302-1017 R. S. Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Tom Wallace Assistant Director Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue Whether proposed amendments to Florida Administrative Code Rule 59G-8.200 are invalid exercises of delegated legislative authority.
Findings Of Fact AHCA is designated as the single state agency for administering the Federal/State Medicaid Program pursuant to Section 409.902, Florida Statutes (2003).2 The Florida Medicaid Developmental Services Home and Community-Based Services Waiver Program (HCBS or DS waiver services) is one of several Medicaid waiver programs. HCBS is designed to provide services to individuals with developmental disabilities to allow them to remain in the community and avoid placement in institutions. AHCA and DCF have entered into an agreement, by which DCF has agreed to implement the HCBS program. AHCA retains the authority and responsibility to issue policy, rules, and regulations concerning the HCBS program, and DCF is required to operate the program in accordance with those policies, rules, and regulations. The Florida Association of Rehabilitation Facilities, Inc. (FARF), is a not-for-profit 501(c)3 corporation, and a state-wide association of corporate organizations providing services to handicapped and developmentally disabled persons. Of the 61 members of FARF, 51 are Medicaid home and community- based waiver providers who provide services to developmentally disabled persons, who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. The Association for Retarded Citizens of Florida, Inc. (ARC), a not-for-profit corporation, is a state-wide association which works through advocacy, education, and training to reduce the incidence of mental retardation and other developmental disabilities. It has 43 affiliate chapters located throughout the state. Of those affiliate chapters, 40 are Medicaid providers, which provide Medicaid services to developmentally disabled persons who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. ARC also has approximately 1,500 individual members. Between 25 to 50 percent of the individual members are either self-advocate recipients of services from the HCBS waiver program or family members or guardians of HCBS waiver program recipients. On January 17, 2003, AHCA published a Notice of Rule Development concerning proposed amendments to Florida Administrative Code Rule 59G-8.200. The proposed amendments incorporated by reference changes to a handbook entitled "Developmental Services Waiver Services and Coverage and Limitations Handbook" (Handbook). AHCA published its Notice of Proposed Rule on July 25, 2003. A First Notice of Change was published on October 17, 2003, and a Second Notice of Change was published on November 26, 2003. A Notice of Additional Hearing was published on November 26, 2003, and a final public hearing on the proposed amendments was held on January 6, 2004. The Handbook's purpose is stated in the Handbook as follows: The purpose of the Medicaid handbooks is to furnish the Medicaid provider with the policies and procedures needed to receive reimbursement for covered services provided to eligible Florida Medicaid recipients. The Handbook provides that a provider must have a signed DS Waiver Services Agreement with DCF in order to be eligible to provide DS waiver services. The Developmental Disabilities Program Medicaid Waiver Services Agreement (DS Waiver Services Agreement) requires the provider to comply with all the terms and conditions contained in the Handbook for specific services rendered by the provider. During the rulemaking process, AHCA involved stakeholders in the development of the amendments to Florida Administrative Code Rule 59G-8.200, including changes to the Handbook. A stakeholder is an organization or individual who has a primary interest in the HCBS waiver program or is directly affected by changes in the program. At the final hearing, Shelly Brantley, former bureau chief of AHCA's Medicaid Program Development, correctly described ARC and FARF as stakeholders for the HCBS waiver program. Petitioners conducted surveys of their membership to determine whether the proposed changes to the Handbook would adversely affect their members. Surveys were also conducted to determine whether any of the members were small businesses as that term is defined in Section 288.703, Florida Statutes. Of the 51 provider members in FARF, 15 qualified as small businesses having less than 200 employees and less than $5 million in total assets. Of ARC's 40 provider members, 38 met the small business definition of Section 288.703, Florida Statutes. Such surveys by associations provide the type of information that would be commonly relied upon by reasonably prudent persons in the conduct of their affairs. AHCA acknowledged that small businesses would be impacted by the changes to the Handbook, and the impact to small businesses was discussed and considered in developing the proposed rules. As of the date of the final hearing, AHCA had not sent a copy of the proposed rules to the small business ombudsman of the Office of Tourism, Trade, and Economic Development as required by Subsection 120.54(3)(b)2.b., Florida Statutes. Petitioners have alleged that AHCA failed to follow applicable rulemaking procedures by not having the Handbook available at the time of the publication of the notice of rulemaking on July 25, 2003, and the notices of changes published on October 17, 2003, and November 21, 2003. Although the Handbook was incorporated by reference as an amendment to Florida Administrative Code Rule 59G-8.200(12), the major purpose of the amendment was to make changes in the Handbook. The Notice of Rulemaking published on July 25, 2003, provided that the Handbook was available from the Medicaid fiscal agent. However, the revised Handbook was not generally available until August 2003. Further revisions to the Handbook were not readily available at the time the notices of changes were published. The lack of availability of the Handbook on the dates of the publication of the notices did not impair the fairness of the rulemaking proceedings or the substantial interests of Petitioners. Petitioners had an opportunity to review the handbook and to give input to AHCA concerning the proposed changes. Petitioners did get copies of the revised Handbook in time to meaningfully participate in the two public hearings which were held on the proposed rules, and Petitioners had an opportunity to provide written comments on the revisions to the Handbook. At the final public hearing held on January 6, 2004, AHCA provided the participants with a "clean copy" of the Handbook, meaning a copy in which the underlines and strike- throughs had been deleted and the text read as it would read when published in the Florida Administrative Code. This caused confusion among the attendees at the public hearing because "clean copy" Handbooks had not been available to the public prior to the final hearing. With one exception concerning residential habilitation services for children, which is discussed below, the "clean copy" of the Handbook was essentially the same as the version which had been available to the public, in which added language was underlined and deleted language was struck-through. The interests of Petitioners and the fairness of the rulemaking proceedings were not impaired by the use of a "clean copy" of the Handbook at the January 2004 final public hearing. A state Medicaid Agency is required to provide notice to a recipient ten days before the agency takes action to reduce a benefit pursuant to 42 CFR Section 431.200. The evidence did not establish whether AHCA provided notice to HCBS waiver recipients that the proposed changes to the rule would reduce certain benefits. Some of Petitioners' witnesses did not think that any of their individual members received notice, but there was no direct evidence to establish that no notice was provided. Petitioners challenged the following provision of the Handbook: Providers wishing to expand their status from a solo provider to an agency provider, or a provider desiring to obtain certification in additional waiver services must be approved by the district in order to expand. A provider must have attained an overall score of at least 85% on their last quality assurance monitoring conducted by the Agency, the Department, or an authorized agent of the Agency or Department in order to be considered for expansion. Petitioners argue that the language in this portion of the Handbook is vague and gives AHCA unbridled discretion when "considering" a provider for expansion. The language is not vague and does not give AHCA unbridled discretion when a provider is considered for expansion. In order for a provider to be considered for expansion, the provider must have scored at least 85 percent on their last quality assurance monitoring. The 85-percent score is a threshold which the provider must meet before AHCA will determine whether the provider meets other criteria for expansion, which are set out in the Handbook, statutes, and rules. Recipients have a freedom of choice in selecting their service providers from among enrolled, qualified service providers. Recipients may change service providers to meet the goals and objectives set out in the their support plans. Petitioners have challenged the following provision, which AHCA proposes to add to the freedom of choice section of the Handbook: Freedom of choice includes recipient responsibility for selection of the most cost beneficial environment and combination of services and supports to accomplish the recipient's goals. Petitioners contend that the language is vague, arbitrary, and capricious, fails to establish adequate standards for agency discretion, and vests unbridled discretion in AHCA. The term "cost beneficial" is defined in the Handbook to mean "economical in terms of the goods or services received and the money spent." The Handbook also contains the following definition for a support plan: Support plan is an individualized plan of supports and services designed to meet the needs of an enrolled recipient. This plan is based upon the preferences, interests, talents, attributes and needs of a recipient. The recipient or parent, legal guardian advocate, as appropriate, shall be consulted in the development of the plan and shall be receive a copy of the plan and any revisions made to the plan. Each plan shall include the most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives and a specification of all services authorized. The plan shall include provisions for the most appropriate level of care for the recipient. The ultimate goal of each plan, whenever possible, shall be to enable the recipient to live a dignified life in the least restrictive setting, appropriate to the recipient's needs. The support plan must be completed according to the instructions provided by the Department. (emphasis supplied) The "most cost-beneficial" language is not new. It already exists in the current Handbook, which is incorporated by reference in Florida Administrative Code Rule 59G-8.200. The proposed amendment does not impose a new requirement on recipients, and it is not vague, arbitrary, or capricious. The "most cost beneficial" language is consistent with the Handbook provision defining the terms "medical necessity" or "medically necessary" as they relate to the determination of the need and appropriateness of Medicaid services for a recipient. One of the conditions needed for a determination that a service is a medical necessity is that the service "be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available, statewide." Petitioners have challenged the following provision of the Handbook: All direct service providers are required to complete training in the Department Direct Care Core Competencies Training, or an equivalent curriculum approved by the Department within 120 days from the effective date of this rule. Said training may be completed using the Department's web- based instruction, self-paced instruction, or classroom instruction. Providers are expected to have direct care staff who are competent in a set of direct care core areas. A curriculum has been developed to provide assistance to the providers in training their direct staff to become competent in these direct care areas. The training curriculum consists of two modules, with three different training formats. Petitioners contend that the curriculum was not completely developed, and would not be in existence at the time the rules are adopted. The Web-based format was completed in the fall of 2003, and the other two formats were completed in the spring of 2004. Thus, the Department's Direct Care Core Competencies Training is available. Petitioners have challenged the following provision of the Handbook: The current Department approved assessment, entitled Individual Cost Guidelines (ICG), is a tool designed to determine the recipients' resource allocations of waiver(s) funds for recipients receiving supports from the State of Florida, Department of Children and Families, Developmental Disabilities Program (DDP). The ICG is a validated tool that provides a rational basis for the allocation of the waiver funds to individuals with developmental disabilities. Waiver(s) funds refers to funds allocated through the Developmental Services HCBS waiver, the Supported Living Wavier, and the Consumer- Directed Care Plus waiver (CDC+). The instructions for the completion of this assessment is provided by the Department and is completed at least every three years or as determined necessary by the recipient and the waiver support coordinator, due to changing needs of the recipients. It is Petitioners' contention that the ICG, like the Direct Care Core Competencies Training, was not completed and would not be available to the providers prior to the adoption of the proposed rules. The ICG was completed in the fall of 2003. Its validity and reliability as an assessment tool for assessing needs of individual recipients has been tested. During September and October 2003, a three-day workshop was held in every district of DCF for the purpose of training workers to administer the ICG. The first day of the workshop provided an overview for interested persons. Hardcopies of the ICG were handed out for review by the participants, including providers. Petitioners have challenged the portion of the Handbook which provides, "[t]he primary live in support worker shall be named on the lease along with all other recipients." It is Petitioners' position that the proposed language is in conflict with unchallenged language in the proposed Handbook and is contrary to the guidelines in the State Medicaid Manual. The unchallenged portion of the Handbook at page 2-77 provides: The in-home support provider or the provider's immediate family shall not be the recipient's landlord of have any interest in the ownership of the housing unit as stated in Chapter 65B-11.005(2)(c), F.A.C.[3] If renting, the name of the recipient receiving in-home support services must appear on the lease singularly or as a guarantor. The State Medicaid Manual provides at page 4-450, subsection 12, that "FFP for live-in care givers is not available in situations in which the recipient lives in a caregiver's home or a residence owned or leased by the provider of Medicaid services." AHCA contends that the purpose for requiring the live- in support worker to sign the lease is to prevent the live-in home support worker (worker) from taking advantage of the recipient by failing to contribute anything to the normal living expenses. Having the worker named on the lease does not guarantee that the worker will pay his or her portion of the rent. The recipient is still liable to the landlord whether the worker pays, and the worker would be liable whether the recipient paid. The unchallenged portion of the proposed changes to the Handbook provides that the worker must pay an equal share of the room and board for the home. Having the worker on the lease poses problems when the worker is no longer providing services. The landlord may not be willing to renegotiate the lease by substituting another worker on the lease. Additionally, the worker may not wish to vacate the premises just because he or she is no longer providing services, and, since the worker is a lessee of the property, the recipient may have to find new quarters if the recipient does not desire to share the home with the worker. Petitioners have challenged the portion of the Handbook which provides that "[t]he amount of respite services are determined individually and limited to no more than thirty (30) days per year, (720 hours) per recipient." Respite care is defined in the Handbook as "a service that provides supportive care and supervision to a recipient when the primary caregiver is unable to perform these duties due to a planned brief absence, an emergency absence or when the caregiver is available, but temporarily unable to care for or supervise the recipient for a brief period of time." Respite care services are designed to be provided for a short time. In determining the amount of time to limit respite care, AHCA reviewed historical data and did not find that many individuals used respite care service for more than two weeks. Stakeholders, family members of recipients, and recipients were involved in discussions with AHCA concerning the time limitation to 30 days. AHCA reviewed other waiver state agencies and found that waivers for individuals with developmental disabilities have similar limits on respite care. Individuals whose primary caregiver may become unavailable for a period of greater than 30 days may receive other types of services to assist them while their caregivers are absent. The types of services that may be available are determined on a case-by-case basis. Petitioners have challenged the portion of the Handbook which provides: III. FINES AND PENALTIES In accordance with the provisions of Section 402.73(7), Florida Statutes, and Section 65-29.001, Florida Administrative Code, penalties may be imposed for failure to implement or to make acceptable progress on such quality improvement plans as specified in Section II.A of this Agreement. The increments of penalty imposition that shall apply, unless the Department determines that extenuating circumstances exist, shall be based upon the severity of the non-compliance, non-performance or unacceptable performance that generated the need for a quality improvement plan. The penalty, if imposed, shall not exceed ten percent (10%) of the total billed by the provider for services during the period in which the quality improvement plan has not been implemented, or in which acceptable progress toward implementation has not been made. This period is defined, as the time period from receipt of the report of findings to the time of the follow-up determination that correction or progress toward improvement has not been made. Non-compliance that is determined to have a direct effect on individual health and safety shall result in the imposition of a ten percent (10%) penalty of the total payments billed by the provider during the period in which the quality improvement plan has not been implemented or in which acceptable progress toward implementation has not been made. Non-compliance involving the provision of training responsibilities or direct service to the individual not having a direct effect on individual health and safety shall result in the imposition of a five percent (5%) penalty. Non-compliance as a result of unacceptable performance of administrative tasks, such as policy and procedure development, shall result in the imposition of a two percent(2%) penalty. In the event of nonpayment, the Department will request the Agency for Health Care Administration deduct the amount of the penalty from claims submitted by the provider for the covered time period. This penalty provision is contained in the DS Waiver Services Agreement contained in Appendix B of the Handbook. The providers are required to complete the agreement to provide services to recipients and are required to comply with the terms and conditions of the agreement. Although the agreement is between the Developmental Disabilities Program of DCF and the providers, DCF is entering into the agreement pursuant to an interagency agreement between DCF and AHCA that DCF will operate the waiver program on behalf of AHCA. AHCA establishes the rules, policies, procedures, regulations, manuals, and handbooks under which DCF operates the program. The inclusion of the penalties provision in the agreement is done based on the authority of Subsection 402.73(7), Florida Statutes, and Florida Administrative Code Rule 65-29.001, which govern the authority of DCF, not AHCA. If AHCA seeks to impose penalties on providers relating to the waiver program, it can do so only based on its statutory authority. DCF merely stands in the shoes of AHCA and has only the authority for the operation of the waiver program that AHCA would have if AHCA were operating the program itself. Petitioners have challenged the portion of the Handbook which reduces the maximum limits of residential habilitation services from 365 days to 350 days. AHCA contends that the reduction of days is merely a reduction in the maximum number of days that a provider can bill for residential habilitation services. The rate at which the provider is being compensated includes a 15-day vacancy factor. The State Medicaid Manual from the Center for Medicare and Medicaid allows for this type of reimbursement and provides: FFP [federal financial participation] is not available to facilities providing services in residential settings on days when waiver recipients are temporarily absent and are not receiving covered waiver services (sometimes called reserve bed days). Medicaid payment may be made only for waiver services actually provided to an eligible recipient. Since providers incur fixed costs such as rent, staff salaries, insurance, etc., even when a waiver recipient is temporarily absent, you may account for such continuing costs when developing payment rates for these providers. For example, rent is generally paid for a period of 1 month. However, day habilitation services are generally furnished only 5 days per week. You may take the entire month's rental cost into consideration in setting the rate paid for services furnished on the days the recipient is present. Similarly, if data shows that a recipient is served in residential habilitation an average of 325 days per year and the slot is held open when the recipient is on a leave of absence, you may consider the entire yearly cost to the provider when establishing its rate of payment. However, in the rate setting process, it must be assumed that a facility will not have a 100 percent utilization rate every day of the year. Consequently, payment rates are established by dividing the provider's total allowable costs by the number of Medicaid patient days you estimate recipients will actually utilize. The change from 365 days to 350 days is not a reduction in service, it is a reimbursement method which utilizes a 15-day vacancy factor. The number of days chosen was based on information furnished by the providers to AHCA during a survey completed in July 2003. Based on the survey, it was concluded that the providers billed for services for 345 to 350 days per year. Contrary to its present position, Petitioner FARF took the position early in the rulemaking procedure that billing on a 365-day year would be harmful to the providers. In a letter to AHCA dated February 4, 2003, Terry Farmer, CEO of FARF, advised: Attached is a compilation of written comments from Florida ARF members on the proposed rule #59G-8.200, titled "the Home and Community Based Services Waiver." * * * Going to the 365 day billing schedule will create hardships for consumers, families and providers because it discourages weekly home visits and doesn't address frequent hospitalizations or vacations. The 15 day down factor is very low for consumers who want to go home 2-3 times a month and would also like a yearly vacation. Recommendation: Increase the down factor to 5 days per month (60 days per year) to accommodate for absences in order to reduce the negative impact of home visits and vacations upon both the consumer and group home provider. This is particularly important when the focus is on meeting Personal Outcomes that may result in the consumer being away from the group home. Petitioners have challenged the portion of the Handbook which deleted the following provision: Residential habilitation services may be provided to children residing in a licensed facility or children with severe behavioral issues living in their family home. The child must have a written behavior analysis service plan that is written and monitored by a certified behavior analyst, in order for the services by a behavior assistant to be reimbursed under residential habilitation. The focus of the service is to assist the parents in training and implementing the behavior analysis services plan. At the final hearing, AHCA conceded that it was in error when it deleted the language relating to the provision of residential habilitation services to children and stated that the language would be reinstated. Section 409.908, Florida Statutes, provides: Subject to specific appropriations, the agency shall reimburse Medicaid providers, in accordance with state and federal law, according to methodologies set forth in the rules of the agency and in policy manuals and handbooks incorporated by reference therein. AHCA set out its rate methodology for Developmental Services Home and Community Based Services rate reimbursement in Appendix A of the Handbook. Petitioners have challenged the rate methodology, stating that it was vague, failed to establish standards for agency discretion and vested unbridled discretion in AHCA's determination of rate reimbursement. The rate of reimbursement cannot be determined based on rate methodology. However, based on a reading of the introductory language to the rate methodology, it does not appear that it was the intent of AHCA to be able to determine the rates by using the rate methodology in Appendix A, and staff of AHCA readily admit that a specific rate for a specific service cannot be determined using the language in the methodology alone. The first paragraph of the methodology states: The following section describes key aspects of the Developmental Services (DS) Home and Community Based Services (HCBS) rate reimbursement structure. Specifically the cost items for each rate component are listed, agency and independent contract status is defined, and the rate structure for various services is described. It appears that the methodology set out in Appendix A is an overview of the process that was used in determining the rates. AHCA is in the process of developing rules that set out the actual rates that will be used. Petitioners have challenged the portion of the Handbook which provides that the maximum limit for adult day training is 240 days, a reduction from 260 days. The reduction of adult day training days is a limitation on services and a limitation on billing. The rate for providing adult day training contains a similar vacancy factor as contained in the rate for residential habilitation services. The purpose of adult day training is to provide training for skills acquisition. Adult day training is provided five days a week, meaning that the maximum time any recipient could spend in adult day training is 260 days a week. However, adult day training is not provided 260 days a year. No training is provided on holidays such as Christmas, Thanksgiving, Memorial Day, Labor Day, and other normal holidays. Generally, individuals do not attend training 260 days a year for other reasons such as hospitalizations. In determining that 240 days would be sufficient in amount, duration, and scope, AHCA contacted providers and learned that recipients generally do not receive adult day training more than 240 days per year.
Findings Of Fact Respondent, Margaret Speer (Speer), received her initial foster care license from Petitioner, Department of Health and Rehabilitative Services (HRS), on March 18, 1991. Speer resided at 1501 Windorah Way, West Palm Beach, Florida 33411, on that date. On March 18, 1992, HRS renewed Speer's foster care license. At that time Speer was living at 992 Whipporwill Way, West Palm Beach, Florida. On April 14, 1992, after moving to 12212-3 Sagharbor Court, Wellington, Florida, Speer received a foster home license for the new address. In October 1992, Speer received a foster home license for her residence at 129 Gregory Road, West Palm Beach, Florida. In June or July of 1992, Speer moved to 5380 Gene Circle, West Palm Beach, Florida. HRS never issued a foster home license to Speer at this address and the residence was not inspected by the local health department. In September 1993, Speer moved to 738 Carissa Drive, Royal Palm Beach, Florida 33411. On October 18, 1993, the Health Department inspected Speer's home at 783 Carissa Drive, Royal Palm Beach, Florida 33411, and found it to be unsatisfactory for use as a foster home for children. Speer moved to 4852-C Orleans Circle, West Palm Beach, Florida. She received a foster home license for that residence on October 31, 1993. At the date of the final hearing, Speer was living at 515 North 10th Street, Lake Worth, Florida. It is important that foster children have stability in their lives, including the location of their residence. Speer's frequent changes of residence could have a detrimental effect on the foster children in her care as noted by an HRS children and families counselor who visited Speer's homes over 17 times from June 1992 to October 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Margaret Speer's application for renewal of her foster care license. DONE AND ENTERED this 9th day of August, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 9th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1769 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-9: Accepted in substance. Paragraph 10: Rejected as not necessary. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as subordinate to the facts found. Respondent's Proposed Findings of Fact. Respondent's letter did not delineate findings of fact and conclusions of law. Paragraphs 1-2: Rejected as subordinate to the facts found. Paragraph 3: Rejected as constituting argument. COPIES FURNISHED: Catherine M. Linton Assistant District Legal Counsel Department of Health and Rehabilitative Services 111 South Sapodilla West Palm Beach, Florida 33401 Margaret Speer 515 North 10th Street Lake Worth, Florida 33460 Robert L. Powell, Agency 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
The Issue The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's imposition of civil penalties upon Petitioner's license.
Findings Of Fact On October 26, 2000, Petitioner was notified by Respondent's representative that she was in violation of Section 402.302(7)(d), Florida Statutes, by "being over ratio" by having more than ten children in her care. Petitioner signed an acknowledgement of the notification. On October 30, 2000, Petitioner was formally notified by mail that she was over ratio. In the letter, Petitioner was notified that another violation would result in the imposition of an administrative fine. On July 16, 2002, Clark Henning, a day care licensing counselor for Respondent, made a routine inspection of Petitioner’s facility and determined that 13 children were present. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that she continued to be over ratio and that any future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and observed that 14 children were in the facility. In accordance with requirements of Section 402.302(7), Petitioner is licensed to provide care to children solely in her home. During the course of his July 16, 2002 inspection, Henning observed that Petitioner was providing day care services in an out-building unattached to her home. At that time, Petitioner signed an acknowledgement of notification that Petitioner was prohibited from rendering care in an out- building. On July 18, 2002, Henning made an unannounced inspection of Petitioner's facility and noted that day care services continued to be provided in the out-building. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that if she continued to render day care services in the out-building, future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and saw that the out-building was continuing to be used for day care. Section 402.302(3), Florida Statutes, requires that any person providing child care must first be properly background screened. On July 16, 2002, during his routine inspection of Petitioner’s facility, Henning observed an adult female, Molly Hilbert, providing care for the children. On July 16, 2002, Petitioner signed an acknowledgement of notification that Molly Hilbert had not been background screened. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that having Molly Hilbert in her employ without a background screening would, in the event of any future violations, result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. In the course of his August 22, 2002 unannounced inspection of Petitioner’s facility, Henning observed Hilbert working with three children.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a final order be entered imposing an administrative penalty of $100 upon Petitioner's license for each of the three violations alleged in the Administrative Complaint for a total of $300. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 21st day of January, 2003. COPIES FURNISHED: Edward T. Cox, Jr., Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Lillie Shells Shell's Family Day Care Home 9340 County Road 231 Wildwood, Florida 34785 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
Findings Of Fact Respondent Pat McComb is the operator of a group home in Broward County, Florida. The home operated under a license issued to Happy People, Inc. Through some unspecified channel, a report of possible abuse was received and Gloria Taylor, a Human Services Counselor II with DHRS, investigated on May 18, 1984. The investigation consisted of interviews with both former and current clients of the group home. A summary of these interviews is found in Petitioner's Exhibits 2, 3, 5, 8 and 9. The former clients and clients are all mentally retarded with secondary disabilities. The interviews were conducted in a group setting with Taylor addressing leading type questions to the group and the group responding in the negative or affirmative. Two clients were interviewed separately, with one being interviewed away from the group home. At least two of the clients changed their statements regarding whether any abuse had ever occurred. No client stated when or where or how often or how severe the alleged abuse was. Taylor saw no bruises or other physical signs of abuse at the time she interviewed the clients. There had never been any other reports or any medical treatment required for these clients. Taylor's testimony was based solely on what she was told by the clients and former clients. Based upon the written reports prepared by Taylor, Rhonda Miklic prepared and signed a letter revoking the licenses of Pat McComb and Happy People, Inc. The clients were moved from the home. The acts of Miklic in revoking the license are not discretionary. Instead, Miklic is required to revoke the license if a finding of abuse is made by the investigator. Pat McComb denied any knowledge that any client was ever hit with a belt at the facility. Instead, discipline consisted of such things as loss of privileges or having a client stand in the corner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges against Respondent be DISMISSED and that the license of Respondent be reinstated. DONE and ENTERED this 11th day of January, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of January, 1985. COPIES FURNISHED: Harold Braynon, Attorney 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 Mark Perlman, Attorney 1820 E. Hallandale Beach Boulevard Hallandale, Florida 33009 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the Department of Children and Family Services, properly denied Gaye Brina Vestal's license application to operate a commercial day care facility, pursuant to Section 402.3055, Florida Statutes.
Findings Of Fact Respondent's legal name is "Gaye Brina Vestal." Respondent is married to "Tony L. Vestal" a/k/a "Tony L. Mitchell." The name on Tony's birth certificate is "Tony Mitchell." When he was eight years old, his mother married a man named "Vestal." Thereafter, Tony went by the last name "Vestal." He attended school, obtained a driver's license and a Social Security account number, married, and had children under the name "Vestal." When he divorced, he began using the name "Mitchell" and obtained a different Social Security account number and driver's license under the name "Mitchell." At some point, Tony married Gaye Brina (Respondent) under the name "Vestal." They then remarried under the name "Mitchell." Respondent tried using the name, "Mitchell" with Tony, but due to hostility from Tony's mother, Respondent elected to return to using the name "Vestal." She was unable to persuade Tony to return to using the name "Vestal." 1/ By a September 16, 1997, application for registration of a family day care home in her home on Sisco Street in Pamona Park, Respondent and Tony listed "Tony Vestal" as Respondent's husband with his "Vestal" Social Security Number. "Shirley Vestal," is listed as a character witness for each of them. The forms clearly show "Shirley Vestal" as Tony's "ex-wife" and as Respondent's "friend." Among her own past employments, Respondent claimed to have been the manager of a pizza parlor; she listed her supervisor there as "Tony Mitchell." She also listed another previous employment as being the "owner" of a different pizza parlor which closed in 1996. Both pizza parlors were named "Tony-O's Pizza." The Sisco Street property was shown as belonging to "Tony Mitchell." Either at this point, or later, while Respondent was operating under provisional day care home licenses, Dede Sharples, a Department employee with responsibility to oversee home day care licensing, became concerned as to the true identity of Respondent's husband. She asked Respondent whether "Tony-O's Pizza" had been named for Respondent's supervisor or Respondent's husband. While there is considerable disagreement between the two witnesses as to exactly what was said, and while Ms. Sharples' questioning may have been tenuous and Respondent's response may have been intended to be humorous, Respondent still left the Department representative with the impression that there were two different "Tony's." On October 16, 1997, the Department did a home inspection. Respondent thereafter corrected the Sisco Street location for fire inspection purposes. By a December 18, 1997, application for a family day care home license at her Sisco Street home, Respondent listed "Tony Lee Vestal" as a household member and listed the owner of the property as "Tony Mitchell." In reviewing the December 18, 1997, application, Ms. Sharples told Respondent that Respondent would need to have Mr. Mitchell sign a letter saying that Respondent had his permission to run a day care facility on his property. 2/ Respondent told Ms. Sharples that "Tony Mitchell" was a good friend that had gone to Indiana and then elsewhere and that he did not want his address given out. She further stated that her home was in Mitchell's name because she had damaged credit and had an oral agreement with Mitchell to pay on the house until it was paid for and then Mitchell would sign the house over to Respondent and Respondent's husband. Ms. Sharples cautioned Respondent that this was a dangerous practice which could leave Respondent with no house and no recourse to her money expenditure for the house. Respondent was granted two six-month provisional family day care home licenses while awaiting Florida Department of Law Enforcement screening and abuse registry screening of herself and "Tony Vestal." On January 12, 1998, the Department received a clear background check/screening on Respondent but no information concerning "Tony Vestal." On February 12, 1998, Ms. Sharples inspected the home on Sisco Street for a compliance check. Respondent was notified of items to correct. On March 9, 1998, the Department sent a certified letter to Respondent because it had not received any communication from her that the noncompliance items had been corrected in anticipation of a second compliance visit. On April 8, 1998, Ms. Sharples secured a copy of the deed to the Sisco Street address. It showed the property to be owned by "Tony Mitchell and Gaye Brina Mitchell, his wife." Respondent admitted to Ms. Sharples that Respondent once was married to "Tony Mitchell," but Respondent did not volunteer that "Tony Mitchell" and "Tony Vestal" were one and the same person. By a November 25, 1998, application for a commercial day care facility license on Grove Avenue in Crescent City, Respondent listed her name as "Gaye Brina Vestal," her address as a post office box, and the owners of the Grove Avenue real property as "Tony L. Mitchell" and herself as "Gaye Brina Mitchell." Respondent signed the application as "Gaye Brina Vestal." Also on November 25, 1998, Respondent submitted an application fee of $25.00 by a check drawn on the account of "L & M Falling Tree Service" signed by "Tony Mitchell." Ken Barnett processes commercial family day care facility license applications for the Department. He is Ms. Sharples' supervisor. On November 18, 1998, the Department sent Respondent a letter verifying that she had not renewed her family day care home license because she was applying for a commercial family day care facility license and informing her that her family day care home must close on December 31, 1998. Respondent asked Mr. Barnett when she would be licensed for a commercial family day care facility license. He replied that if the final inspection went all right, Respondent would be licensed within two weeks of December 31, 1998. As a result of her conversation with Mr. Barnett, Respondent did not timely renew her family day care home license. Her day care home license has since expired. 3/ At some point that is unclear from the record, the Department discovered that "Tony Vestal" and "Tony Mitchell" were one and the same person with two different driver's licenses and two different Social Security account numbers. As a result, on February 4, 1999, the Department denied Respondent's pending application for a commercial day care facility license. At some date that is unclear from the record, the Florida Department of Law Enforcement background screening and the abuse registry screening came back clear on Respondent, "Tony Vestal," and "Tony Mitchell," e.g. "Tony" under both Social Security numbers. Tony testified that he originally had used the name "Mitchell" to hide his children by his first wife so that his first wife would not take their children to Mexico. Tony testified that he never used his Social Security card for a job; he only used it "privately," to keep his ex-wife from finding him. As of the date of the disputed fact hearing, Tony had not notified the Federal Social Security Administration that he had two Social Security identities/accounts. Since the Department's denial, but prior to the disputed fact hearing, Tony's driver's license in the name "Vestal" had been turned-in to the Florida Department of Highway Safety and Motor Vehicles (DHSMV) and his driver's license in the name of "Mitchell" had been revoked by that agency. 4/ Respondent asserted that DHSMV compromised what could have been harsher civil and/or criminal penalties upon its determination that Tony had no intent to defraud. However, Respondent introduced no corroborative evidence of this assertion. At all times material, Respondent knew about Tony's two Social Security cards and two driver's licenses in different names. Respondent and Tony signed all the departmental forms referred-to above pursuant to the penalty of perjury for not telling the truth thereon. Incredibly, Respondent testified that it did not occur to her that the use of different names on the documentation supporting her several applications would create confusion within the Department. Equally incredibly, Respondent testified that she had assumed that the preliminary background screenings and fingerprint checks would disclose all identities so that full disclosure would be made and all discrepancies explained.
Recommendation Upon 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 Respondent's application for a commercial day care facility license. DONE AND ENTERED this 2nd day of November, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 2nd day of November, 1999.
