The Issue The issue to be resolved in this proceeding concerns whether violations of Sections 402.305 and .310, Florida Statutes, and Section 65C-22.001, Florida Administrative Code, have been committed with regard to the care of children at the Petitioner's facility, such that its license should be revoked or other penalty imposed.
Findings Of Fact The Petitioner Gwendolyn Gobler was licensed to operate a daycare facility called Discovery Christian Learning Center, by the Department of Children and Family Services (Department) from August 13, 2001 through August 12, 2002. The Petitioner has a Bachelor's degree in early childhood education and has had a license for a family daycare home or center since sometime in 1998. Discovery Christian Learning Center, the subject facility, is located in St. Augustine, Florida at Number 260, State Road 16. State Road 16 is a busy four-lane highway in St. Augustine connecting Interstate 95 to downtown St. Augustine. On the day in question, January 17, 2002, an insurance agent Bill Matetzsck and his passenger, Ms. Lee Stec, were traveling on Highway 16 in the outer-left lane when they observed two children playing near the street on the outside of the Petitioner's facility. The children, a boy almost aged two and a girl aged two and one-half were playing on the sidewalk throwing leaves in the gutter. The little boy was observed to step into the highway while chasing leaves. Mr. Matetzsck stopped his car after observing the children and Ms. Stec retrieved them before they could be hit by a car and took them back into the facility. Ms. Stec became somewhat upset about the discovery of the children outside of the facility and immediately called the police, local television stations, the Florida Times Union Newspaper and waited for the police to arrive. Mr. Matetzsck observed that the double gate on the side of the property in the area of the backyard had a chain wrapped around it, but there was no lock on the chain. The Petitioner acknowledged to the law enforcement officer who investigated the incident that, although chained, the gate had not been properly fastened or secured. During that same time period Ms. Stec had also made a call to the Department of Children and Family Services reporting the incident. This triggered an inspection and investigation by the Department. Carmen Baselice is a Family Services Counselor assigned to St. John's County. The territory of her regulation and inspection of child care facilities includes the Discovery Christian Learning Center operated by the Petitioner. Ms. Baselice's duties include regulating and inspecting child care facilities and family daycare homes. Ms. Baselice initiated her investigation into the complaint by visiting the Discovery Christian Learning Center and discussing the complaint with Ms. Gobler. Ms. Gobler had noticed that the children were missing from her playground in the backyard and had just gone inside to see if they had gone back in the house at the time the children were being brought inside from the front of the house by Ms. Stec. Ms. Baselice observed that the front door of the facility was not properly fastened due to tape being placed around the doorknob locking mechanism. The door could only be locked by use of a deadbolt. Ms. Baselice felt at the time that the children may have exited the facility by that door. Ms. Gobler, however, stated that the only possible way that the children could have gotten out was by the gate which she acknowledged was not properly fastened. On January 17, 2002, Ms. Baselice received another complaint from a parent who was concerned that it was her child who had gotten out of the facility. The parent was concerned because her own child had gotten out of the facility by the front door in December 2001. Ms. Baselice reviewed the complaint with Ms. Gobler who confirmed that the child had gotten out of the facility by way of the front door by turning the deadbolt, but that she had apprehended the child while the child was still on the front porch and returned her to safety inside the house. On January 8, 2002, before the incident with the two children, Ms. Baselice conducted an annual renewal inspection on the facility. She observed an infant in a crib unattended and the facility "out-of-ratio" for more than thirty minutes. Out of ratio means that there was an insufficient number of staff members for the number of children being kept at the facility. On this occasion there were four children being kept, as well as the infant asleep in the crib in the infant room. Ms. Gobler was the only person present at the time of this inspection, on January 8, 2002. Thirty minutes later the second worker came on duty. The thirty-minute delay in being properly staffed was caused by that worker having a flat tire on her way to work. Ms. Gobler was attending to the toddlers in the larger room and the infant was asleep in the crib in the adjoining infant room, a separate room. However, it is also true that Ms. Gobler had the infant in plain sight from her station in the room with the four other children and could hear the infant through the open or sliding door. Through her testimony, and through Respondent's Exhibit two, in evidence, Ms. Baselice established that Ms. Gobler had a long history of incidents investigated and inspected by the Department and a substantial number of attendant violations. The incidents reported in Respondent's Exhibit two and in Ms. Baselice's testimony began prior to 1998 and there was a history of non-compliance which continued to the present time. During these years Ms. Gobler operated in disregard of the law in a number of instances, either by non- compliance with specific regulatory requirements concerning how her child care facility operated or was equipped, or without licensure in all instances. When the violations were cited she would often correct the immediate problem but later repeat the same type of violation. Many of the violations in her regulatory history are germane to child safety. The subject violations involving the children escaping form the home obviously are directly and dramatically involved with child safety. The little boy in question was about to get into the street and was barely missed by an oncoming car when Ms. Stec retrieved him. Those repetitive violations in the past are referenced in Respondent's Exhibit two and are incorporated herein by reference.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services revoking the Petitioner's license. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 3rd day of October, 2002. COPIES FURNISHED: Gwen Gobler, pro se Post Office Box 1122 Ponte Vedra, Florida 32004 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 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 Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Department of Health and Rehabilitative Services properly assessed an administrative fine in the amount of $150.00 on Lourdes Guanlao d/b/a Children's Paradise for violations of Sections 402.305(4) and 402.305(12), Florida Statutes, and Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code.
Findings Of Fact The Department issued a Child Day Care Facility license to Lourdes Guanlao to operate a facility known as Children's Paradise on October 9, 1991. From 1991 to 1994 Petitioner conducted routine facility inspections at Children's Paradise. These inspections included a determination whether the facility was operating with appropriate staff-to-child ratios. On April 1, 1992, Sandy Looney, Respondent's Senior Children's and Families' Counselor, conducted an inspection of Children's Paradise. When Ms. Looney arrived at the facility, Jeane Weiss was the only staff member present. There were seven children present in the center. Two children were under the age of one year and two children were between one and two years old. There should have been two staff members at the facility for the grouping of children present. Within ten minutes of Ms. Looney's arrival, Ms. Guanlao, arrived at the facility thereby correcting the staffing violation. Ms. Guanlao signed the inspection checklist. Ms. Looney discussed the staffing violation with Mrs. Guanlao and left a copy of the checklist with her. On July 27, 1993, Ms. Looney conducted an inspection of Children's Paradise. There were two staff members present at the facility, Ms. Weiss and Ms. Tan. There were sixteen children present in the center. Three children were under the age of one year, six children were between one and two years old. Three staff members were required for the grouping of children present. Ms. Weiss signed the inspection checklist. Ms. Looney left the checklist with staff. Before Ms. Looney left the premises, a staff member arrived for work thereby correcting the staffing violation. On August 17, 1994, Ms. Looney conducted a re-licensure inspection of Children's Paradise. There were two staff members present at the center, Ms. Weiss and Ms. Guanlao. There were twenty-one children present in the center. Seven were under the age of two. Three staff members were required if the children were separated in groups and four staff members were required if the children were all together. Ms. Weiss signed the inspection checklist. Mrs. Looney discussed the violation with Mrs. Guanlao who advised there was no substitute or other staff member available to call to work. Correction of the staffing violation was due on August 18, 1994. On August 18, 1994, Ms. Looney returned to Children's Paradise to determine if Ms. Guanlao had corrected the staffing violation. At that time there were eighteen children present. Six children were under the age of two. The same two staff members were present, Ms. Weiss and Ms. Guanlao. Mrs. Guanlao called a ten year old child to assist and again indicated that there was no adult available to call. Each time that Ms. Looney inspected Respondent's facility, she actually counted the number of children present and asked staff to verify their age. Evidence to the contrary is not persuasive. On August 29, 1994, Petitioner issued an Administrative Complaint imposing a fine in the amount of $75.00 for the August 17, 1994, staffing violation which Respondent had not corrected at the time of reinspection on August 18, 1994. This complaint properly advised Respondent of her right to a proceeding pursuant to Section 120.57(1), Florida Statutes. By letter dated September 13, 1994, Ms. Looney advised Ms. Guanlao that if she disputed the imposition of the fine, she could request an administrative hearing. The letter further stated that if Ms. Guanlao did not dispute the fine, she could pay it by mailing a check or money order. Ms. Guanlao tendered check number 1839 dated September 22, 1994, in the amount of $75.00 with "Adm. Fine" noted thereon. Ms. Looney transmitted this check to the fiscal office for deposit on or about October 7, 1995. There is no persuasive evidence that Ms. Looney told Ms. Guanlao she had to pay the administrative fine or risk losing her license. Gerald Stephens, Protective Investigator for Petitioner went to Children's Paradise on November 18, 1994. The purpose of his visit was associated with an investigation unrelated to this proceeding. When Mr. Stephens arrived at the facility, Ms. Guanlao was the only staff member present. He observed ten children in the center. The youngest child present at the center was eighteen months old. This number of children required at least two staff members to be present at the facility. Mr. Stephens interviewed one of Ms. Guanlao's staff members on the morning of November 18, 1994. There is no persuasive evidence that Mr. Stephens prevented the staff member from showing up for work that morning by telling her he was going to shut the facility down. Seven witnesses testified that they were volunteers at the center and had agreed to act as substitute staff on an as needed basis. Only two of these people had been properly screened and trained to work in a day care center or with children. One of these two volunteers did not receive her certification to work in a day care facility until October 3, 1994. Some of the volunteers had other full time jobs. Consequently, the times they were available to help Ms. Guanlao was limited. There is no evidence that Ms. Guanlao called any of these people to substitute on April 1, 1992, July 27, 1993, August 17, 1994, August 18, 1994 or November 18, 1994. Ms. Guanlao attended a training course that Ms. Looney conducted prior to October 9, 1991. One purpose of the course was to familiarize participants with the rules regulating child day care centers. During the training Ms. Looney provided Ms. Guanlao with written material including the Child Care Standards contained in Rule 10M-12, Florida Administrative Code. This rule sets forth staffing requirements and child discipline standards. Ms. Looney and Ms. Guanlao discussed subsequent changes in the rules related to staffing requirements. Ms. Looney also explained to Ms. Guanlao that the staffing requirements applied at all times the children were in the center regardless of the activity that was taking place. In other words, the staff-to- child ratios applied even if the children were napping. On August 19, 1994 Ms. Looney received a complaint involving the day care center on an unrelated licensing issue. As a result of the subsequent investigation, Ms. Looney was at the facility on August 24, 1994. During that visit, Ms. Guanlao admitted that she sometimes slapped the children on the hands as punishment.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That Petitioner Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine on Respondent Lourdes Guanlao d/b/a Children's Paradise in the amount of $150 for violating Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code. DONE and ENTERED this 16th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1996. COPIES FURNISHED: Frances S. Childers, Esquire District 3 Legal Office Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Box 3 Gainesville, Florida 32601 Michael M. Naughton, Esquire 3840-4 Williamsburg Park Boulevard Jacksonville, Florida 32257 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should grant Petitioner’s application for an annual license to operate a child day care center in Naples, Florida.
Findings Of Fact With headquarters in Boca Raton, Petitioner is a corporation owning, operating, and franchising child day care centers in 25 states, including Florida, and Canada and Indonesia. Petitioner owns and operates 70 centers and franchises 145 centers. In the eastern United States, Petitioner owns 40 centers and franchises 55 centers from Florida to Massachusetts. This case involves Petitioner’s child care center at 1275 Airport Road South in Naples, Florida (Center). Petitioner has owned and operated the Center since its inception in 1997. The Center occupies 10,000 air-conditioned square feet in a building that was constructed to Petitioner’s specifications. With a licensed capacity of 187 children, the Center has typically operated with an enrollment of 117-119 children. Respondent has licensed the Center as a child day care facility from August 18, 1997, through July 31, 2000. As is customary, Respondent initially issued Petitioner a provisional license, which ran from August 18, 1997, through January 31, 1998. Dissatisfied with aspects of the Center’s operation, Respondent granted Petitioner a second provisional license from February 1, 1998, through July 31, 1998. Prohibited by statute from granting a third consecutive provisional license, Respondent issued Petitioner an annual license from August 1, 1998, through July 31, 1999. At the expiration of that license, still dissatisfied with the Center’s operation, Respondent issued Petitioner provisional licenses for two additional six-month periods, which ended July 31, 2000. When the second provisional license expired on July 31, 2000, Respondent denied Petitioner’s application for an annual license. In its Notice of Denial dated August 16, 2000, Respondent based the denial on repeated violations by the Center in five major areas: staff-to-child ratios, direct supervision, background screening and personnel records, health-related requirements, and incident reporting. The Notice of Denial reports that Respondent’s inspectors have made 49 official visits to the Center during its three-year history and have repeatedly identified numerous deficiencies. In this case, Petitioner challenges Respondent’s denial of Petitioner’s application for an annual license starting August 1, 2000. Petitioner candidly admits to a “rocky” past in operating the Center. However, Petitioner claims that it has progressed significantly toward satisfactory operations from October 1999 through July 31, 2000, which is, by stipulation, the closing date for analysis in this case. Respondent counters this claim by noting repeated violations at the Center, even after Petitioner assigned a corporate general manager to oversee daily operations at the Center. Respondent contends that Petitioner has demonstrated its unsuitability to continue to operate the Center. For two reasons, the most relevant facts in this case arise after January 31, 2000. First, Respondent last issued a license for the Center starting February 1, 2000, which means that the deficiencies before February 1 did not preclude licensing. Prior operations of the Center remain relevant, as they assist in assessing Petitioner’s willingness or ability to operate the day care facility in compliance with the law. However, the deficiencies arising after February 1 are of greater relevance because Respondent has not issued a license in reliance upon, or despite of, these facts. Second, aware that the Center’s recurring problems were jeopardizing its ability to retain a license, in December 1999, Petitioner hired a former consultant as its vice- president of operations for the eastern region. The new vice- president replaced the individual who, previously responsible for Florida operations, had been unable to correct all of the problems at the Center. The new vice-president hired Jamilet Melendez in January 2000 as the new general manager for the Florida region. Ms. Melendez holds an Associate of Arts degree and is working on a bachelor’s degree at Florida International University. Prior to becoming a general manager, Ms. Melendez had been employed by Petitioner for six months as the director of a center in Plantation, Florida. Previously, Ms. Melendez had been employed by Toddler Tech, starting as a teacher’s aide and working her way to a center director. As a general manager, Ms. Melendez is responsible for overseeing finances, quality, and operations of the seven Tutor Time schools in central and south Florida. On the instructions of the vice-president, Ms. Melendez devoted nearly all of her time to the Center from mid-January to mid- March, after which time she spent about half of her time at the Center. From mid-January to mid-March, Ms. Melendez visited the Center daily; after mid-March, she visited the Center three times weekly. Thus, the deficiencies arising after February 1, by which time Petitioner had assigned these additional corporate resources to assist the operation of the Center, are especially relevant in determining whether Petitioner is able to correct the Center’s problems. By letter to Respondent dated February 25, 1998, a parent complained about excessive staff turnover; the failure to conform to posted schedules; unsupervised children going to the restroom or playing on the playground, one staff person shouting at several children; several bites, lacerations, and a swollen lump on the head sustained by her two children at the Center; and the absence of ensuing incident reports. Responding to the complaint, on February 27, 1998, Respondent conducted an inspection. The inspector found that Petitioner lacked documentation that Gloria Badillo, Lisa Colgan, Alma del Rio, Tamara Griffin, Tina Ortegon, and Mirella Roman had completed 30 hours of the required training; Yermi Torres and Brianne Torres had obtained a tuberculosis test; Yermi Torres had completed her local law enforcement screening and affidavit of good moral character; Brianne Torres had completed her local law enforcement screening and her employment history; and Fran Starr had completed her local law enforcement screening. Ms. Starr became the director of the Center by March 2, 1998. Ms. Starr prepared a Plan of Correction dated March 2, 1998. As for personnel files, Ms. Starr sent all employees a memorandum warning that they risked termination if their files were not current by March 7. In response to a note on the inspection form, Ms. Starr also sent a second memorandum requesting all employees to submit copies of their certificates documenting training in First Aid and cardiopulmonary resuscitation. However, in a separate note, Ms. Starr stated that some of the citations for staff training were inaccurate because some employees were recent hires who could still timely obtain the required training, one employee had left the employment of the Center, and the local vocational center that had trained some employees had not yet provided them with certificates. In the Plan of Correction, Ms. Starr also stated that she had advised all staff persons by memorandum that they must be able to see all the children whom they were supervising. She added that the general manager and director would continue to conduct 15-minute counts to monitor staffing ratios and supervision. As stated in the Conclusions of Law, an employee has five days after her date of hire to submit her fingerprints to the employer, which has five days to submit the data for background screening; a new employee has 90 days after her date of hire to commence 40 hours of required training (consisting of variably stated components of 30, 20, or 10 hours) and one year after the date of commencement to complete the training; a new employee has 10 days after her date of hire to submit the results of a tuberculosis test; and a child has 30 days after enrollment to submit documentation of a physical examination and immunizations. No statutes or rules provide any grace periods for the other background screening, personnel, enrollment, and health requirements. The record does not establish the dates of hire of the six employees who had not completed 30 hours of the required training or the two employees who had not obtained their tuberculosis tests, so Respondent has not proved these deficiencies. The record does not establish the dates of hire of the three employees missing additional information, so Respondent has not proved the deficiencies concerning background screening. There are no grace periods for the affidavits of good moral character and employment histories, so Respondent has proved these two deficiencies. On March 6, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios, but found deficiencies in supervision, apparently because three teachers reported to the inspector a different number of children under their supervision than were in their respective classrooms. The inspector also found a deficiency in recording classroom attendance. Respondent has proved these deficiencies in supervision and attendance recordkeeping. It is impossible for a staff person to discharge her supervision duties without knowing the number of children for whom she is responsible. Careful recordkeeping of arrival and departure times for each child is essential to determine from the records whether a facility was on-ratio at various points in time. A note on the March 6 inspection report states that, during nap time, the required minimum staffing ratios may be relaxed, if sufficient staff are onsite to maintain the required ratio. Reportedly, the Center director had allowed staff to leave the site during nap time. The inspector suggested that the Center employ a floater, who would help supervise the children during nap time and outside play. On April 14, 1998, Respondent received an anonymous complaint that the complainant and several other parents of children attending the Center had complained vainly to management of deficiencies in staffing ratios and supervision. The anonymous complainant also cited insufficiently supervised older children hurting younger children in the same classrooms, excessive staff turnover, and an injury to the complainant’s child that required four stitches in his chin. Responding to the complaint, on April 14, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found deficiencies for failing to follow planned activities in the transitional toddler room, label supplies, clean up “a few cups (plastic) and plastic bag” littering the outdoor play area, and clean up a previously cleaned pink house on the playground that had become muddy and dirty. Respondent has proved the deficiencies for failing to follow planned activities and label supplies. The former deficiency can, and in this room probably did, contribute to a lack of structure and misbehavior among the children. The latter deficiency poses a danger to the safety of the children. Respondent has not proved the deficiencies concerning litter and a muddied playhouse. No statute or rule supports the finding of a deficiency on these facts. On April 29, 1998, Respondent received a complaint from a parent who had spoken to a Center employee on the telephone about enrolling her child at the Center. Reportedly, the Center employee had told her that the staffing ratio for one- to two-year-olds was one staff person for eleven children. Responding to the complaint, Respondent conducted an inspection on May 1, 1998, and found no deficiencies in staffing ratios or supervision. On June 4, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found deficiencies in failing to follow one of two schedules posted in a classroom, clean up tissue and a plastic wrap on the playground, maintain food trays at a safe distance from the diapering area, replace bean bags with holes, maintain a medical card for several medicine containers kept onsite, and maintain daily attendance records. The inspector found that Petitioner lacked documentation that “Alma”--presumably, Alma del Rio--had completed 20 hours of the required training, “Anne” had completed 30 hours of the required training, and “Brianne”-- presumably, Brianne Torres--had enrolled in 30 hours of the required training. The inspector found that Petitioner lacked documentation that “Emily” and “Christine” had obtained tuberculosis tests. The inspector found that Petitioner lacked documentation that “Brianne”--again, presumably Brianne Torres--had completed her local law enforcement screening and that Respondent needed to resubmit her fingerprints, “if necessary.” The inspector found that Petitioner lacked documentation that more than two of its employees had obtained Child Development Associate (CDA) certificates, despite the fact that 98 children attended the Center. Respondent has proved the deficiencies in following posted schedules, maintaining the required numbers of staff persons with CDA certificates, and maintaining food trays, medical cards, and attendance records, but not in maintaining the playground or equipment. Absent proof of hire dates, Respondent has not proved the deficiencies in tuberculosis testing of “Emily” and “Christine,” who were not named previously in prior inspection reports as employees. Absent proof of hire dates, Respondent has not proved the deficiencies in the 30 hours of required training for Ms. del Rio or “Anne.” However, the deficiency noted for Ms. Brianne Torres was that she had not enrolled-- i.e., begun--her required training. Although the record does not establish her hire date, Ms. Brianne Torres was employed at the Center on February 27, 1998, and it is a reasonable inference that she remained continuously employed through the date of this inspection on June 4, 1998, which is over 90 days from her date of hire. Thus, Respondent proved a deficiency in the training of Ms. Brianne Torres. Respondent also proved a deficiency in the local law enforcement screening for Ms. Brianne Torres, who had been cited in the February 27 report for the same deficiency. On June 22, 1998, Respondent received another complaint from a parent about staffing ratios, staff turnover, and maintenance and supervision in the toddler room. The complaint was that unremoved garbage bags with fecal material had remained all weekend in the room and children were unsupervised while staff cleaned up the room. Responding to the complaint, Respondent conducted an inspection on June 23, 1998, and found no deficiencies in staffing ratios, supervision, or sanitation. The inspector found deficiencies in failing to post a plan of activities in one classroom, repair or replace a couch with tears, and record daily attendance in four classrooms. Respondent has proved all of these deficiencies, except the failure to repair or replace a couch with tears in it. On July 7, 1998, Respondent conducted an inspection and found no deficiency in staffing ratios, but found a deficiency in supervision in the toddler room. Due to the unusual configuration of the room, a single teacher could not see children throughout the room. Taking advantage of the situation, several children were misbehaving, and the classroom had become disorderly. Respondent has proved this deficiency in supervision. The inspector found deficiencies in failing to follow a posted schedule (a substitute teacher was showing a movie when the schedule called for academic work), repair two holes in walls from doors hitting them in one room (they were under repair at the time of the inspection), clear an exit area that was blocked by a sleeping mat that had been left adjacent to a hallway door, maintain napkins at a safe distance from the diapering area, repair or remove bean bags and “a yellow triangle” that had tears, remove food from the counter, label bottles, and record attendance accurately in two classrooms. Respondent has proved the deficiencies that Petitioner failed to follow a posted schedule, maintain napkins safely, remove food from the counter, label bottles, and record classroom attendance, but failed to prove the deficiencies for repairing the door that was under repair, clearing an exit blocked by a sleeping map, and repairing or removing equipment with tears. The inspector also found that Petitioner lacked documentation of physicians’ information and enrollment forms for W. B. and A. E., current immunizations for V. B. and R. B., and a completed immunization card for W. B. Absent evidence of enrollment dates or, as to the last cited deficiency, the omitted information, Respondent has not proved these deficiencies concerning immunizations. However, the physician’s information is required of each child prior to enrollment, so Respondent has proved the deficiency as to physicians’ information and enrollment forms for two children. Nine days prior to the expiration of the second provisional license on July 31, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. The inspector found a deficiency in failing to repair a new hole caused by another door banging into a wall (again, under repair at the time of the inspection). Respondent has failed to prove this deficiency. The inspector found that Petitioner lacked documentation that Hannah Hogan (who was not present at the time of the inspection and worked only as a substitute), Alixia Mia, Danielle Mains, and Beverly Hall had obtained tuberculosis tests; Tracy Tingley, Lera Sammons, and Paula Jones had filed affidavits of good moral character and statements acknowledging their duty to report child abuse; “Hannah”--presumably, Hannah Hogan--had had her fingerprints submitted; V. B. [same as V. B. mentioned in the July 7 inspection report] and M. V. had current immunizations; and W. B. [same as W. B. mentioned in the July 7 inspection report] and A. E. [same as A. E. mentioned in the July 7 inspection report] had physicians’ information. Absent hire dates, Respondent has not proved deficiencies concerning tuberculosis tests or submittal of fingerprints. However, Respondent has proved the deficiencies that three employees lacked affidavits and abuse-reporting acknowledgements. Respondent has not proved either of the deficiencies concerning immunizations because of the absence of an enrollment date for M. V. and the absence of an intervening 30 days since V. B. had been first mentioned in an inspection report. Respondent has proved the deficiencies concerning the physicians’ information for the two children. On July 29, 1998, Respondent received a complaint from a parent that the one-year-old class was off-ratio. Responding to the complaint, Respondent conducted an inspection the next day and found that the two-year-old class had one staff person for 12 children, which is one over the minimum allowable ratio. The notes state that the second teacher, who was 15 minutes late to work, arrived 15 minutes after the twelfth child. Because the two-year-old classroom is in the room with the unusual configuration, the inspector found a separate supervision deficiency for this 15-minute lapse. The inspector found that the one-year-old class was in-ratio on the day of the inspection, but had been off-ratio the prior day when one of the two teachers had had to leave the one-year classroom “momentarily” to retrieve snacks because the cook had been absent due to illness. The Center director reported that several teachers and children had had the flu. Staffing ratios are more flexible than supervision, as is evidenced by the nap time rule that allows off-ratio staffing during nap time, as long as supervision is maintained and the staff persons required to meet ratio are on the same floor of the building and readily available if summoned. For this reason and the absence of evidence that the tardy employee was chronically late or of managerial status, Respondent has not proved that a 15-minute lapse in staffing, which left a teacher with one two-year-old too many, constitutes a deficiency. Supervision is less flexible. Respondent has proved the requirement that two staff persons must be present in the oddly configured room, when any part of the entire room is accessible to children. Respondent had already cited Petitioner in the July 7 inspection for not keeping at least two staff persons in this room. Although normally even small departures from supervision constitute a deficiency, however, this deficiency would be based on the fact that one staff person could not see every corner of a single room for 15 minutes. Petitioner could not rely on a single staff person supervising this room for a significant period of time, but Respondent has failed to prove that the 15-minute lapse, with a teacher still in the same room, constitutes a deficiency in supervision. Likewise, Respondent has failed to prove that the “momentary” departure of one staff person, required to maintain staffing ratios, to go get snacks constitutes a staffing ratio deficiency, at least where, as here, flu had short-staffed the Center, which was missing its cook, who normally delivered the snacks. On August 13, 1998, Respondent received a complaint from a parent that her one-year-old child had been pushed by another child into a door hinge and had chipped off half of his tooth. The parent also complained that the Center had not completed an incident report. The parent reported that three staff had been in the one-year-old room with 17 children, which met ratio requirements, but that supervision was nonetheless lacking. Responding to the complaint, Respondent conducted an investigation on August 19, 1998, and found no deficiencies. By letter dated August 25, 1998, Respondent informed Petitioner that it intended to impose an administrative fine for the staffing ratio deficiency occurring on July 29, 1998, in the one-year-old room and for the staffing ratio deficiency occurring the next day in the two-year-old room. The letter warns that future deficiencies in staffing ratios may result in fines or the denial or revocation of Petitioner’s license. The letter adds that the configuration of the toddler room precludes direct supervision by one teacher of an entire class. In response to a complaint either unrecorded or recorded illegibly, Respondent conducted an inspection on September 28, 1998. The inspector found staffing ratio deficiencies in the one-year-old classroom where one staff person was supervising eight, rather than the permitted six, children, and the two-year-old classroom where one staff person was supervising 12, rather than the permitted 11, children. However, the inspector reported these deficiencies during nap time, during which, as noted above and discussed in the Conclusions of Law, the staffing ratios are relaxed. The inspector opined that if any children were awake, the nap time exception did not apply; however, the rule refers only to “nap time” and not whether, as happens during nap time, one or more children were awake. The notes are largely illegible, but, absent evidence that the staff persons required to maintain ratio were not in the building, Respondent has not proved this staffing ratio deficiency. On November 12, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. The inspector found deficiencies in failing to label supplies, maintain the playground free of “a few plastic cups,” repair or replace a torn sleeping mat, maintain at least 18 inches between two sleeping mats in the older two- year-old room, and maintain accurate daily attendance records in one classroom. Respondent has proved the deficiencies in failing to label supplies, maintain at least 18 inches between sleeping mats, and keep accurate attendance records, but not the remaining cited deficiencies. On November 25, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that Petitioner lacked documentation that Maria Theresa Tvarbe, Danielle Mains, Kelly Walling, Amber Litreal, and Christine Quigg had enrolled in 30 hours of the required training; only one staff person had a CDA certificate, although several staff persons might possess an equivalent; Marsha Studie and Maria Robenalt (whose hire date was January 17, 1998) had obtained tuberculosis tests; and Tracy Constantini, Gladys Perez, Elba Valdes, and Marsha Studie had completed employment histories. Absent evidence of hire dates, Respondent has not proved any deficiencies in the 30 hours of required training. The suggestion that several staff persons might have a CDA equivalent (expressed in the inspection report as an exemption from the CDA requirement) precludes a finding of a deficiency on this issue. The absence of a hire date for Marsha Studie and the hire date within 10 days of the inspection for Maria Robenalt preclude a finding of any deficiencies in their tuberculosis testing. However, Respondent has proved the deficiencies in employment histories for four employees. On December 15, 1998, Respondent filed an administrative complaint against Petitioner for, on February 27, 1998, a supervision deficiency in the two-year-old room; on July 7, 1998, a supervision deficiency in the toddler room when an inspector saw children misbehaving because the teacher could not see all of the children due to the configuration of the room; on July 30, 1998, a staffing deficiency (by one child) in the two-year-old room and inadequate supervision due to the room’s configuration; and on September 28, 1998, a staffing deficiency (by two children per teacher) in the one- year-old room. The administrative complaint proposes an administrative fine of $50, which Petitioner paid. Respondent received a complaint on December 17, 1998, from a parent that her child had contracted a bad diaper rash while attending the Center and that a teacher had “sternly command[ed]" a child at nap time, “You close your eyes right now.” Responding to the complaint, on December 17, 1998, Respondent conducted an inspection and found no deficiencies of staffing ratios or supervision. The inspector found deficiencies involving the availability of the disciplinary policy, labeling of bottles, and sanitary handling of diapers and diapering. A note states that Petitioner would terminate the staff person who had spoken sternly to a child and that this employee had not normally worked in the classroom. Respondent has proved the deficiencies, except concerning discipline. The evidence insufficiently details this deficiency. On January 5, 1999, Respondent received a complaint from an unidentified source that many children did not wear their socks and shoes while at the Center, a child had stood alone at the front entrance to the Center, one staff person had supervised 21 three-year-olds, and the Center director had posted a sign asking parents to “help out” during their lunch time so the teachers could take a break. Responding to the complaint, Respondent conducted an inspection the next day and found no children without socks and shoes on their feet, no children unsupervised, and a sign requesting help from parents during their lunchtime. The inspector found a staffing ratio deficiency ”due to weather conditions and illness[, which] was quickly corrected.” The inspector also found a deficiency in the presence of a mud, rust, or food carpet stain. Respondent has not proved these deficiencies. The inspector also found that Petitioner lacked documentation that “Danielle,” “Kelly,” “Amber,” and “Marsha” had completed the 30 or 40 hours of required training; “Tracy,” “Gladys,” “Amber,” and “Marsha” had completed employment histories; “Maria,” “Marsha,” and “Donna” had obtained tuberculosis tests; and more than one staff person had obtained a CDA certificate. Absent evidence of hire dates, Respondent has not proved deficiencies in the completion of the 30 or 40 hours of required training or, as to “Donna,” the tuberculosis test. However, Respondent has proved deficiencies in the lack of tuberculosis tests for “Maria” and “Marsha”--presumably, Maria Robenalt and Marsha Studie, who were first named in inspection reports dated January 17, 1998, and November 25, 1998, respectively. Respondent has also proved deficiencies in the employment histories of the three staff persons and an insufficient number of staff persons holding CDA certificates. The next day, January 7, Respondent received another complaint from a parent who reported that the Center director was refusing to accept the children of 20 parents because the Center lacked sufficient staff to meet the staffing ratios. Reportedly, 8-10 children with head lice were also in the lobby without supervision. Responding to the complaint, at 10:00 a.m. on January 7, Respondent conducted an inspection. The inspector found no staffing ratio deficiencies, but saw four children with head lice in the hallway awaiting their parents to come pick them up. At the inspector’s request, a staff person found an empty classroom for the lice-infested children to wait in isolation until their parents arrived. The inspector cited this as a deficiency in the isolation and supervision of ill children. The inspector found a supervision deficiency when the teacher on the playground accompanied two children to the bathroom, leaving 12 children unsupervised on the playground. The inspector also found deficiencies because of dusty vents and a bathroom light that had burned out in the bathroom in one classroom, the storage of supplies, diapering and sanitation, and two classrooms with uncompleted attendance records as of 11:00 a.m. The inspector did not find as a deficiency the action of the Center director in declining to accept enrolled children, who would have placed the Center off-ratio. Respondent has proved all of the deficiencies cited by the inspector in the January 7 inspection. However, with the exception of the supervision deficiencies, the other deficiencies were overshadowed by a larger problem, which, although not a deficiency in itself, had been the source of repeated complaints. This larger problem was staff’s inability to control the children. Trained staff and structured classroom settings were in short supply; out-of- control children, frustrated staff, and angry parents were abundant. Although the Center director properly declined to accept more children, knowing that more children would throw the Center off-ratio, the disorderly drama that unfolded in the lobby, as confused parents found themselves unable to drop off their children--accompanied by unsupervised, lice-infested children wandering the hallway--graphically revealed the poor organization afflicting the Center at its inauspicious start to 1999. Seeking to relieve the January 7 situation, the Center director prepared a Plan of Action, which she faxed to Respondent on January 7. Marsha Studie had become the Center director in mid-December 1999, after several persons had served in this position since Ms. Starr. Noting that staff illnesses had contributed to the staff shortage, the Plan of Action describes scheduling changes to bring more teachers into the school at the start of the day. Immediately, Petitioner would pay overtime for this coverage, eventually hiring additional staff for this purpose. The Plan of Action reports that one new teacher would start on the same day as the plan, and one would start on January 25. The Plan of Action also promises that attendance sheets will be promptly and correctly filled out everyday. On January 8, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that the attendance records for several classrooms were incomplete, as of 8:25 a.m. The inspector also found that Petitioner lacked any documentation, besides an application, for one staff person, Susan Cox, whose hire date was December 17, 1998. Respondent has proved all of the cited deficiencies. By letter dated January 12, 1999, Respondent advised Petitioner of its intent to take administrative action for the deficiencies in staffing ratios and supervision observed on December 15, 1998, and January 6 and 7, 1999, as well as other deficiencies cited on the latter two dates. Acknowledging the receipt of the Plan of Action, the letter requires a corrective action plan to ensure that enrollments do not exceed minimum required staffing levels, to provide a plan for specialized training and support for the director, and to provide inservice training of staff to cover child care, documentation, health care, sanitation, and certifications. The letter recommends that Petitioner assign a corporate representative to the Center until the director obtains child care training. On January 15, 1999, Respondent conducted an inspection and found deficiencies in staffing ratios and supervision, but inspections on January 19 and 22 found no such deficiencies. Respondent has proved the deficiencies found in the January 15 inspection. By letter dated January 20, Petitioner’s Director of Training informed Respondent that it was changing staff schedules to accommodate better the arrival and departure times of children. The letter transmits a 30-day training calendar for the Center director and staff. By administrative complaint dated February 4, 1999, Respondent alleged numerous deficiencies in staffing ratios and supervision during the past six months and proposed a fine of $400, which Petitioner paid. Respondent conducted inspections on February 18 and March 16 and found no deficiencies in staffing ratios or supervision. However, both inspections revealed numerous documentation deficiencies. On February 18, 1999, the inspector found a deficiency in attendance records in one classroom. The inspector also found that Petitioner lacked documentation that Danielle Mains, Gladys Perez, Kelly Walling, Amber Litreal, Marsha Studie, Tracy Constantini, and Darlene Vasquez had enrolled in 30 hours of the required training; more than one staff person had obtained a CDA certificate; Maria Robenalt, Donna Solovey, Pauline Squires, and Allison Arnold had obtained tuberculosis tests; Traci Constantini, Gladys Perez, Elba Valdes, Susan Cox, Pauline Squires, Allison Arnold, and Jennifer Ealy had completed employment histories; Pauline Squires and Allison Arnold had obtained local law enforcement screenings; Allison Arnold had submitted her fingerprints; Florence Steven had filed an affidavit of good moral character; and Pauline Squires, Allison Arnold, and Florence Steven had filed abuse-reporting acknowledgements. The inspector found that the employment records lacked hire dates for Donna Solovey, Susan Cox, Allison Arnold, Lisa Clary, Jennifer Ealy, and Florence Steven. Respondent has proved the deficiencies in failing to keep accurate classroom attendance records; to employ the required number of staff persons with CDA certificates; to complete employment histories for seven staff persons; to obtain an affidavit of good moral character for one staff person and abuse-reporting acknowledgements for three staff persons; to enroll in 30 hours of the required training for Danielle Mains (who was first mentioned in the July 22, 1998, inspection report), but not Gladys Perez, Kelly Walling, Amber Litreal, and Marsha Studie (who were all first mentioned in the November 25, 1998, inspection report, so that 90 days may not have expired since their hire dates); and to obtain a tuberculosis test for Maria Robenalt (who was first mentioned in the January 17, 1998, inspection report). Respondent has failed to prove the remaining deficiencies due to the lack of hire dates. On March 16, 1998, the inspector found deficiencies in children’s health records because Petitioner lacked documentation of a physical examination for A. R. and current immunizations for M. M., B. M., and A. P. However, Respondent has failed to prove these deficiencies because of the lack of enrollment dates. The inspector also found that Petitioner lacked documentation of enrollment in 30 hours of the required training for Danielle Mains, Gladys Perez, Kelly Walling, Mariana Baitrage, Lisa Clary, Marsha Studie, and Tracy Constantini; employment of more than one staff person with a CDA certificate; employment histories for Tracy Constantini, Marla Squinos, and Staci Pernell; an abuse-reporting acknowledgement for Madelyne Guillaume; and an incident report for repeated incidents of sexually inappropriate activity by one child. Respondent proved the deficiencies in enrollment in training for Danielle Mains, Gladys Perez, Kelly Walling, Marsha Studie, and Tracy Constantini; employment of the required number of staff persons with CDA certificates; employment histories for three staff persons; an abuse- reporting acknowledgement for one staff person; and preparing an incident report. Sometime between March 8 and June 2, Amy Harmon replaced Marsha Studie as the Center director. On June 7, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. The inspector found deficiencies in failing to post planned activities, maintain the outdoor play area (due to the presence of an empty plastic soda bottle), maintain a bathroom (which had run out of paper towels), and clean certain toys. Respondent has proved the deficiencies in failing to post planned activities and maintain the bathroom, but not the remainder of the deficiencies described in this paragraph. The inspector also found that Petitioner lacked documentation that Gladys Perez, Mariana Baitrage, Jennifer Ealy, Lillie Guillaume, Staci Pernell, Kelly Walling, and Tracy Constantini had enrolled in 30 hours of the required training; any staff person had obtained a CDA certificate; Amy Harmon and Jill Burke had obtained tuberculosis tests; Amy Harmon and Staci Pernell had completed employment histories; Amy Harmon and Jill Harmon had filed affidavits of good moral character; Amy Harmon had filed an abuse-reporting acknowledgement; and Amy Harmon had completed a local law enforcement screening. Respondent has proved the deficiencies in enrollment in the required training for Gladys Perez, Jennifer Ealy, Kelly Walling, and Tracy Constantini; the required number of staff persons with CDA certificates; the employment histories and affidavits of good moral character for two staff persons; and the abuse-reporting acknowledgement for one staff person. Respondent has failed to prove the remaining deficiencies due to the lack of hire dates. The inspector also found that Petitioner lacked documentation of current immunizations for J. B. and J. H and physicians’ information for J. C., C. C. and C. C. Respondent has proved the deficiencies concerning physicians’ information, but has failed to prove the deficiencies concerning immunizations due to the lack of enrollment dates. On June 25, 1999, Respondent received a complaint from an anonymous source that after 5:00 p.m. on that day one staff person was supervising ten children, including one child estimated to be four years old. Responding to the complaint, Respondent conducted an inspection on July 6, 1999, and found no deficiencies in staffing ratios or supervision. However, the inspector found deficiencies in failing to post activities and storing bleach within the reach of children. Respondent has proved both of these deficiencies. The inspector also found that Petitioner lacked documentation that Gladys Perez, Lillie Guillaume, and Jennifer Ealy had enrolled in 30 hours of the required training; and Amy Harmon and Jill Burke had obtained tuberculosis tests and affidavits of good moral character. Respondent has proved all of these deficiencies. The inspector also found that Petitioner lacked documentation of current immunizations for J. C., H. C., T. P., J. S., R. V., A. W., J. B. and J. H.; a current physical examination for A. S.; and completed enrollment forms for J. C., C. C., C. C., C. N., J. O., N. P., A. R., C. S., F. S., S. S., and A. S. Only 29 days had passed since the previous inspection, which is the only evidence of enrollment dates for any of these children. Respondent has thus failed to prove the deficiencies for current immunizations and the physical examination. Respondent has proved the deficiencies for the failure to maintain completed enrollment forms for 11 children. On July 29, 1999, Respondent received a complaint from an anonymous source reporting that, three days earlier at 10:30 a.m., one staff person had supervised 14 two year olds. Responding to the complaint, Respondent conducted an inspection on July 30, 1999, and found no deficiencies in staffing ratios or supervision. On July 30, 1999, Respondent declined to renew Petitioner’s annual license, but issued a third provisional license. The July 30 letter explains that the issuance of a provisional license is “pending resolution of recent complaints involving staff-to-child ratios.” The letter adds that the Center lacks a sufficient number of credentialed staff. On August 24, 1999, Respondent conducted an inspection and found a deficiency in the staffing ratio in the 0-12 month classroom, where the ratio was one staff person to seven infants, rather than one staff person to four infants. The inspector found no supervision deficiencies, although there were deficiencies in posting or following planned activities, labeling bottles, and maintaining equipment. The inspector also found that Petitioner lacked documentation that Jennifer Pohlmann had completed local law enforcement screening. Respondent has proved these deficiencies, except for the screening deficiency in the absence of a hire date. At some point between August and October 1999, Raquel Revuelta replaced Amy Harmon as the Center Director. On October 4, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, Respondent found deficiencies in failing to post and follow planned activities, maintain a garbage pail lid, and repair or replace two pedals on a bicycle. Respondent has proved all of these deficiencies. The inspector also found that Petitioner lacked documentation that more than one staff person had a CDA certificate; Sherry Williams had obtained an updated tuberculosis test; Jamie van de Mortel, Barbara Hernandez, and Jennifer Pohlmann had filed affidavits of good moral character; Barbara Hernandez had filed an abuse-reporting acknowledgement; Jennifer Pohlmann had had her fingerprints submitted; Elba Valdez had completed her 30 hours of required training; and Amanda Banboom and Jamie van de Mortel had started their 30 hours of required training. Respondent has proved the deficiencies concerning the required numbers of staff persons with CDA certificates, three staff persons without affidavits of good moral character, one staff person whose fingerprints had not been submitted, and one staff person without an abuse-reporting acknowledgement. Respondent has not proved the remaining deficiencies due to the lack of hire dates. By letter dated October 13, 1999, Respondent provided Petitioner an administrative warning for various deficiencies in personnel requirements at the Center. The letter states that inspectors had found on eight occasions in the past year deficiencies in training, background screening, and tuberculosis testing. The letter also expresses concern over the lack of a sufficient number of credentialed staff persons at the Center. On October 19, 1999, Respondent received a complaint from an anonymous source that, at the morning drop-off that day, one staff person was supervising 30 children, including some less than two years old. Responding to the complaint, on October 20, 1999, Respondent conducted an inspection and found a deficiency in the staffing ratio, based on the records for the preceding day, when only one staff person supervised 28 children, ages 1 to 4 years, in the toddler room from 7:30 a.m. to 7:50 a.m. The Center director, Raquel Revuelta, explained that two infants had arrived earlier than scheduled, and she had been 20 minutes late that morning. Ms. Revuelta agreed to schedule another employee to arrive at work at 7:30 a.m., starting the next day. The unexplained tardiness of a director is attributable to Petitioner, so Respondent has proved a staffing ratio deficiency. The inspector found no supervision deficiencies, but found deficiencies in failing to post planned activities for the toddler classroom, to ensure the presence of a staff person certified in cardiopulmonary resuscitation until 7:50 a.m. on October 19 (only two staff persons had such certification), and to repair or replace the damaged garbage can lid and bicycle pedals, which had both been cited in the October 4 inspection report. Respondent has proved these deficiencies. The inspector found that Petitioner lacked documentation for the completion of tuberculosis tests by Sherry Williams, Barbara Hernandez, and Rebecca Esquivel; local law enforcement screenings for Rebecca Esquivel and Jennifer Pohlmann; employment histories for Rebecca Esquivel and Barbara Hernandez; fingerprinting for Rebecca Esquivel; an affidavit of good moral character and abuse-reporting acknowledgement for Rebecca Esquivel; and 30 hours of the required training for Rebecca Esquivel. Additionally, the inspector found that Petitioner had not completed, until October 19, 1999, a local law enforcement screening or submitted to Respondent the fingerprints of Jennifer Pohlmann, who had been hired on August 16, 1999. Respondent has proved the deficiencies concerning tuberculosis tests for Sherry Williams and Barbara Hernandez, local law enforcement screening for Jennifer Pohlmann, employment histories for Rebecca Esquivel and Barbara Hernandez, and the affidavit and acknowledgement for Rebecca Esquivel. Respondent has not proved the remaining deficiencies due to a lack of hire dates. By letter dated November 16, 1999, Respondent informed Petitioner that it was considering administrative action for the staffing deficiency of October 19, as well as Petitioner’s use of one employee to supervise 28 children in the room whose configuration precludes effective supervision and whose size permits only 22 children. The letter also notes Petitioner’s ongoing failure to correct deficiencies in personnel files. On November 23, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision, equipment, isolation practices, planning and posting activities, classroom attendance records, sanitation, or documentation of the completion of tuberculosis tests or required training. However, the inspector found that Petitioner lacked documentation of immunizations for T. B., J. B., A. B., and A. C.; a physical examination for A. B.; and physician’s information for C. C. The only one of these children previously mentioned is C. C., who had also lacked physician’s information in the June 7, 1999, inspection report. Absent enrollment dates or previous citations in inspection reports not made in the past 30 days, Respondent has not proved any of these deficiencies, except the failure to maintain physician’s information for C. C. On January 4, 2000, Respondent conducted an inspection and found no staffing ratio deficiency, but found a supervision deficiency. While the inspector was observing the poorly configured two-year-old toddler classroom, she saw primarily English-speaking children who were misbehaving and a teacher who, primarily a Spanish speaker, had trouble redirecting them. One child had a finger accidentally caught in a door that was closing. Although the quality of the supervision was questionable, the record does not support a determination that the teacher was not physically within sight and sound of the children at all times. Respondent has thus failed to prove this supervision deficiency. The inspector also found deficiencies in posting and following planned activities, discipline (because a staff person yelled at a child), an unrepaired hole in a classroom wall, broken plastic blinds in a classroom, bleach stored within reach of children, unsanitary diapering practices, and the consumption of cookies outside without napkins or plates. Respondent has not proved the deficiencies for posting and following planned activities, as the record does not explain the inadequacy of the block scheduling after the normal school day; discipline, as the record does not establish the contents or context of the yelling or that the yelling violated Respondent’s disciplinary policy or was in violation of Respondent’s rules as “severe, humiliating, or frightening”; or the consumption of cookies outside without napkins or plates, as the record does not reveal, among other things, whether each child had more cookies than he or she had hands. Respondent has proved the remaining deficiencies. The inspector also found a deficiency in isolation. The inspector found a child in the four-year-old classroom with a fever. When asked why she did not isolate the child, the teacher responded that she had nowhere to send the child. When the inspector brought this situation to the attention of the Center director, who was Ms. Revuelta, Ms. Revuelta isolated the child in her office, at one time leaving the child alone in the office with only the inspector to watch her. These facts constitute a deficiency in maintaining and using isolation areas and raise doubts as to Ms. Revuelta’s judgment. The next day, Respondent conducted another inspection and found no supervision deficiency, but found a staffing ratio deficiency. During nap time, the inspector found one one-year-old child awoke screaming, and the screaming awoke half of the 19 napping children in this one- to two-year-old classroom. Five children got up and took seats at a table where, during nap time, they were eating crackers. The inspection report notes that two staff persons had “just returned from an hour break,” but neither the report, nor the testimony of the inspector, describes how long the two staff persons had been gone after the children had awoken or where they had been during nap time. Respondent does not contend that the staffing ratio was insufficient while the children napped, but only after one of them waked up the others. As noted in the Conclusions of Law, the relaxation of the staffing ratio rule applies during “nap time” and does not necessarily end with the first child waking or the waking of several children, as long as nap time remains in effect for a significant number of children. Thus, absent evidence that nap time ended before the return of the additional staff persons and that the classroom was off-ratio even at the end of nap time, Respondent has not proved this staffing ratio deficiency. The inspector also found deficiencies in failing to maintain 18 inches between mats and an unobstructed exit, as one mat blocked a door. Respondent has proved the former deficiency, but not the latter. The inspector found that Petitioner lacked documentation that “Barbara” and “Maria” had started 30 hours of the required training, “Jamie” had completed the 20-hour component, more than one staff person had obtained a CDA certificate, and “Crystal” and unnamed volunteers had obtained tuberculosis tests. Absent evidence of hire dates, Respondent has not proved these deficiencies, except for the failure to maintain the required number of staff persons with CDA certificates. The inspector found that Petitioner lacked documentation that A. B. had current immunizations and a current physical examination. The inspector had cited A. B.’s files on November 16, 1999, so Respondent has proved these deficiencies. By letter dated January 11, 2000, to Ms. Revuelta, the inspector, who had conducted nearly all of the inspections of the Center, informed Ms. Revuelta that the next CDA course would start January 24 and another course would not begin locally until August. Although not required to have done so, the inspector not only obtained this information, but asked a person affiliated with the group sponsoring the course to send application and scholarship materials to the Center. The inspector noted that Ms. Revuelta, who had finished half of the CDA course, could still enroll in the January session and obtain her certificate. By administrative complaint dated January 24, 2000, Respondent alleged the October 19 staffing ratio deficiency, the January 4 supervision deficiency, and the October 4 deficiencies in employment history and tuberculosis testing. Respondent sought to impose a $250 administrative fine, which Petitioner paid. By letter dated January 31, 2000, Respondent issued a second consecutive (fourth overall) provisional license. The letter explains that the license is provisional due to the deficiencies in staffing ratios, supervision, credentials, training, and personnel documentation. The letter warns that Respondent could not legally issue a third consecutive (fifth overall) provisional license and requires that Respondent submit by February 15, 2000, a written plan of action to bring the Center into compliance. On February 4, 2000, Respondent received a complaint from an identified source that a staff person had left 15 children locked in a van, unattended, the previous November while she went into a store to buy them treats. Responding to the complaint, Respondent conducted an inspection on February 8. The inspector interviewed the Center director and staff person, who had driven the van on the day in question three months earlier. The driver stated that she had left the children in the van momentarily while she picked up a previously paid-for bag of ice from the outside of a convenience store and that she had watched the children at all times while out of the van. If the employee’s hearsay testimony is true, and nothing in the record discredits it, she never was out of sight of the children for the few seconds that it took to obtain the bag of ice. Respondent has thus failed to prove this supervision deficiency. The inspector found no deficiencies in staffing ratios in what appears to have been a brief investigation of a somewhat stale incident. By letter dated February 10, 2000, from Ms. Melendez to the inspector, Ms. Melendez stated that she was looking forward to working with Respondent in making the necessary changes at the Center to improve the quality of care. Ms. Melendez identified six steps that the Center would take to achieve this improvement, including three inservice sessions at which attendance would be mandatory, the use of a consultant to recommend how to improve the child care and classroom management, financial assistance from Petitioner so three employees could attend the consultant’s CDA class starting in February, and already-completed updating of all staff persons’ files to ensure that they contained all required documentation. On February 15, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios, supervision, tuberculosis tests, the required number of staff persons certified in cardiopulmonary resuscitation, and the required background screenings. However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, “Maria,” “Heather,” and “Crystal” had begun 30 hours of the required training, Jamie van de Mortel had completed or exempted 30 hours of the required training, and more than one staff person had obtained a CDA certificate. Respondent has proved the deficiency in failing to maintain the required number of staff persons with CDA certificates. Because the October 4, 1999, inspection report mentions Barbara Hernandez and the February 15 citation is for failing to start, not finish, the required training, Respondent has proved the training deficiency as to Ms. Hernandez. Absent evidence of hire dates, Respondent has failed to prove the remaining deficiencies. Although Jamie van de Morel was first mentioned in the October 4, 1999, inspection report, the citation concerning her file is that she failed to complete 30 hours of the required training. Using October 4, 1999, as evidence of her earliest date of employment, Petitioner would have until January 4, 2001, to obtain documentation of the completion of this training. On February 28, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, Heather Stallmer, Crystal Rumpot, Jamie van de Mortel, and Jennifer Pohlmann had enrolled in 30 hours of the required training. Respondent has proved this deficiency in the files of Barbara Hernandez, Jamie van de Mortel, and Jennifer Pohlmann. Absent evidence of hire dates more than 90 days prior to the inspection date, Respondent has failed to prove this deficiency as to the remaining staff persons. The inspector also found that Petitioner lacked documentation that M. S. and C. W. had current physical examinations. Absent evidence of enrollment dates, Respondent has failed to prove these deficiencies. By a note added to the inspection report at the time of the recheck on March 3, 2000, the inspector mentioned that the Center was advertising for a new director to replace Ms. Revuelta. On March 13, 2000, Respondent received a complaint from a parent that her one-year-old child had been bitten five times this week, including three times the preceding day. The parent reported that one bite had broken the skin and that the Center had prepared incident reports for only two of the bites. The parent added that five children had been identified as the children biting her child. Responding to the complaint, on March 14, 2000, Respondent conducted an inspection and observed the child with healing bite wounds on her stomach and arms, as well as “many incident reports” from this classroom for biting. The teachers explained that they had separated the biters and used time out to punish them. The inspector discussed the biting problem with Ms. Melendez and the new director, Jane Wissocki. They agreed to divide the children into small groups, train staff in classroom safety, and distribute literature to the parents. The inspector noted that, although the staffing ratio in the one-year-old classroom met the minimum requirement, and thus warranted no citations for deficiencies in staffing ratio or supervision, the quality of supervision was inadequate to protect the children from harm. On March 29, 2000, Respondent received a complaint from a different parent that her child had been bitten weekly for the past six weeks by the one child and all the bites had broken the skin. Responding to the complaint, Respondent conducted an inspection on March 31, 2000. The inspector spoke with the director, who was again Ms. Revuelta. Ms. Wissocki had quit after a short time, and Ms. Revuelta had agreed to return until Petitioner could find a replacement. Ms. Revuelta told the inspector that she had spoken with the parents of the child about his biting of the complainant’s child and aggressiveness with other children and staff persons, even to the point of hitting staff persons. Ms. Revuelta reported that the parents thought their child’s hearing difficulties, due to be corrected by surgery in mid- April, were the source of his aggressiveness. However, even though he had only attended the Center for a couple of months, the troubled child had generated at least 12 incident reports for pinching, choking, biting, and poking other children. Staff persons had repeatedly placed the child in timeout and even sent him home on occasions. When needed, a staff person remained near the child. Ms. Revuelta therefore promised the inspector to require the parents to remove the child from the Center if another incident occurred. Not citing any deficiencies in staffing ratios or supervision, the inspector concluded that the Center was supervising the children, but this aggressive child was unsuitable for the Center. On April 3, 2000, Respondent received a complaint from a parent who had visited the Center to decide whether to enroll her child there. The parent reported that she had waited outside for 15 minutes before a child opened the door to admit her. During that time, she had seen two school-aged children playing in the lobby without supervision. Responding to the complaint, Respondent conducted an inspection on April 6, 2000, and found that the two children were the children of Ms. Revuelta, who claimed that she never left them alone. She explained that, after she had resigned from the Center, she had begun homeschooling the children. She brought the children with her to the Center while she was serving as director until Petitioner could find her replacement. Not citing the Center for the complained-of incident, the inspector found no staffing ratio deficiencies, but found a supervision deficiency because five children were receiving dance lessons from a dance instructor who had not been screened. Respondent has proved this supervision deficiency. On April 20, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that Petitioner lacked documentation that Heather Stallmer, Barbara Hernandez, Maria Cardentey, Crystal Rumpot, and Tammy Alfonso had enrolled in 30 hours of the required training; Jamie van de Mortel and Jennifer Pohlmann had completed 10 hours of the required training; Tammy Alfonso and Rebecca Esquivel had obtained tuberculosis tests; and Rebecca Esquivel had completed an employment history. Respondent has proved the deficiencies of failing to enroll in the required training within 90 days of employment for Maria Cardentey and Crystal Rumpot, who were mentioned in the January 5, 2000, inspection report, and Barbara Hernandez, who was mentioned in the October 4, 1999, inspection report. Respondent has proved the deficiencies of failing to document the tuberculosis tests and employment history of Rebecca Esquivel, whose records were first cited in the October 20, 1999, inspection report. Absent evidence of hire dates, Respondent has failed to prove the remaining deficiencies. On May 5, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found a discipline deficiency because a teacher was sternly and loudly telling a student, “now, now.” Absent evidence of the context, Respondent has failed to prove this deficiency. The inspector found that Petitioner lacked documentation that Heather Stallmer, Barbara Hernandez, Maria Cardentey, Crystal Rumpot, Michelle Valentine, and Tammy Alfonso had enrolled in 30 hours of the required training; Jamie van de Mortel and Jennifer Pohlmann had completed 10 hours of the required training; Patti Eggnatz had completed background screening and filed an affidavit of good moral character; and Rebecca Esquivel had completed an employment history. Respondent proved the deficiencies for failing to enroll in the required training within 90 days of employment for Barbara Hernandez, Maria Cardentey, and Crystal Rumpot, but not Heather Stallmer, who is first mentioned in the February 15, 2000, inspection report; Michelle Valentine, who is first mentioned in this inspection report; and Tammy Alfonso, who is first mentioned in the April 20, 2000, inspection report. Respondent also proved the deficiencies of Patti Eggnatz lacking an affidavit of good moral character and Rebecca Esquivel lacking documentation of an employment history. Respondent failed to prove the remaining deficiencies due to the lack of hire dates. The inspector added a note to the inspection report that Ms. Revuelta and Ms. Eggnatz would meet with her to discuss the Center and its operating history. Respondent had designated Ms. Eggnatz as the new Center director starting June 1, 2000. Ms. Eggnatz, who has a CDA certificate, had worked for several years at other centers operated by Respondent--most recently, as the director of the center in Miramar, Florida. On May 24, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision, equipment, planning and following posted activities, sanitation, eight-hour inservice training, tuberculosis test results, the number of staff persons trained in cardiopulmonary resuscitation, and classroom attendance records. However, the inspector found deficiencies in failing to discard all medication not currently being dispensed and failing to obtain parental signatures to incident reports, as several forms from February and March lacked such signatures. Respondent has proved these deficiencies. The inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, and Tammy Alfonso had enrolled in 30 hours of the required training. Respondent has proved these deficiencies as to Barbara Hernandez and Maria Cardentey, but not Tammy Alfonso, who was first mentioned in an inspection report dated April 20, 2000. On June 12, 2000, Respondent received a complaint from an anonymous source that the Center had sent children on long field trips without water and sunscreen and there had been 19 children in one teacher’s three-year-old classroom between 8:00 a.m. and 9:00 a.m. that morning. Responding to the complaint, Respondent conducted an inspection on the next day at 1:00 p.m. and found no deficiencies in staffing ratios or supervision. The inspector found that staff persons had taken the children on a field trip without ensuring that they had received sunscreen, so that some children became sunburned. However, water had been available from fountains. The Center agreed to shorten the field trips, ask parents to be sure to apply sunscreen in the morning and send sunscreen to school with their children, and use a water cooler on trips. The inspector concluded that the situation did not constitute a deficiency. However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, and Tammy Alfonso had enrolled in 30 hours of the required training; “Willis” had a current physical examination; and A. S. had current immunizations. Respondent has proved these training deficiencies for Barbara Hernandez and Maria Cardentey, but not Tammy Alfonso. Respondent has proved the deficiency in immunizations, as A. S. was mentioned in the July 6, 1999, inspection report, but not in the physical examination of “Willis,” who does not appear to have been identified in any previous inspection report. On June 13, 2000, Respondent received a complaint from a parent, who was also an employee at the Center. The parent complained that her two-year-old child had been assigned to a teacher’s two-year-old classroom, over the objection of the teacher, who had said that the child was not yet ready for her class. Concerned that the teacher was using intimidating toilet-training tactics on her child, the parent noted that the child had complained of pain in his genitalia. A physician had examined the child, but found no evidence of abuse. Responding to the complaint, Respondent conducted an inspection on the same day, at 5:00 p.m. Obviously, the sexual content of the complaint necessitated an immediate investigation, but, nonetheless, this inspection was the second inspection of the Center on June 13, 2000. The inspector found no basis to the implied allegation of some form of abuse in what seems to have amounted to one employee seeking an ally in Respondent in a dispute with another employee. Finding no deficiencies in staffing ratios or supervision for a second time on the same day, the inspector unsurprisingly found that the deficiencies cited earlier in the day had not yet been corrected in the intervening four hours. On June 23, 2000, Respondent received complaints from several parents concerning child safety, supervision, incident reporting, discipline, communication, and communicable diseases. The parent of the child who had previously been bitten on her stomach and arms by several other children complained that, on June 16, her one-year-old child had been bitten over 40 times by red ants, and Ms. Eggnatz, the director, had failed to communicate the seriousness of the situation to the mother when Ms. Eggnatz had called her to report the incident. Responding to the complaint, Respondent conducted an inspection on June 27. The inspector was unable to see Ms. Eggnatz, who was attending an out-of-town conference, or the supervising teacher, who was on leave on the day of the visit. The assistant director told the inspector that the bites were considerably fewer than 40, but the inspector had seen the child and counted at least 40 bites. The assistant director also stated that an incident report had not been prepared. Returning to the Center the next day, the inspector spoke with Ms. Eggnatz and Ms. Melendez. They told her that they had had the playground treated for ants on June 21. The teacher responsible for supervising the children on the playground was present when the child was bitten by the ants. The teacher saw and heard the child as she was crying, but misinterpreted the crying. Thinking the child was merely crying as an extension of earlier behavior, the teacher merely called the child to come to her. When the child did not respond, but continued to cry, the teacher returned to the other children on the swing, erroneously thinking that the child would come to her or stop crying when she was ready. A short time later, the teacher approached the child when the employee realized that the crying had been too hard, and the teacher had found the child’s legs covered in red ants. The teacher immediately sprayed water on the child to remove the ants. Ms. Eggnatz promptly called the child’s mother, told her of the ant bites, and asked her if she wanted to pick up her child. The mother, who testified, felt that Ms. Eggnatz minimized the severity of the incident. When the mother arrived at the school and saw the severity of the bites, she asked Ms. Eggnatz why she had not taken precautions for a possible allergic reaction. Ms. Eggnatz admitted that she had not known what to look for in determining if someone was having an allergic reaction. By chance, the child already had a physician’s appointment for later in the day, but the mother brought her to the physician without waiting for the appointment. Fortunately, the child did not suffer an allergic reaction, or other lasting injury or scarring from the bites. After examining the child, the physician prescribed an over-the- counter cortisone ointment. The mother returned to the Center after visiting the physician. Missing Ms. Eggnatz, the mother asked the assistant director for a copy of the incident report, but the assistant director told her that she did not have one. The mother spoke with the teacher who had been supervising the child on the playground. The teacher candidly described the incident, as it has been described in this recommended order. After an intervening weekend, the mother returned to the Center the next Monday and met with Ms. Eggnatz. Again, the mother asked for an incident report, but Ms. Eggnatz did not give her one. The mother gave Ms. Eggnatz the two weeks’ notice required before removing a child from the Center. Notwithstanding the incident, the mother testified that she remained quite fond of the teacher, whom the child loved and the mother did not blame for the incident. However, the mother felt that her child was no longer safe at the Center, largely due to excessive staff turnover. Respondent produced an incident report concerning the ant bites. The incident report provides a brief description of the incident and notes that the mother was upset and refused to sign it. There are two separate issues concerning the incident report: whether the mother refused to sign it and whether Center staff prepared the incident report at the time of the incident. On the first issue, it is very unlikely that the mother saw the incident report, so it is very unlikely that she declined to sign it. Respondent has thus proved that Petitioner never attempted to obtain the signature of the mother to the incident report. On the second issue, it is harder to determine whether Petitioner’s employees prepared the incident report at, or even a few days after, the incident. It is possible that the teacher, who spoke primarily Spanish, and the assistant director did not know of the existence of the incident report. The failure of Ms. Eggnatz to provide the mother of the requested report may be explainable, although not justifiable, by the presumably tense and possibly confrontational nature of their meeting the following Monday. But this omission does not establish that Petitioner’s employees failed to prepare the report. Although the Center was sometimes lax about preparing incident reports, on balance, the record does not permit a finding that one of Petitioner’s employees prepared the report substantially after the incident in an attempt to make it appear as though someone had prepared the report in a timely manner. Additionally, although an incident report serves many purpose, the communication by telephone of the incident by Ms. Eggnatz to the mother served the primary purpose, which is to ensure that a parent learns of the incident and, if necessary, can obtain timely medical attention for her child. As to the ant-bite incident and the incident report, Respondent has proved no deficiencies except for the failure of Petitioner to obtain the signature of the parent on the incident report. During the June 27 inspection, the inspector found no deficiencies in staffing ratios, but found deficiencies in discipline because the inspector heard an employee sternly tell children to “sit down” and another employee yelling in a classroom, isolation because the assistant director had remained at work twice with her sick children, and supervision because staff had allowed one- to two-year-old children to cover their heads with blankets during nap time and one teacher had laid down with a child rubbing her back during nap time. Lacking evidence of the context or a violation of the Center’s disciplinary policy, Respondent has not proved either of the two disciplinary deficiencies. Lacking additional detail, Respondent has not proved an isolation deficiency in the assistant director keeping her two sick children with her at the Center. Lacking explicit support in the evidence, statutes, or rules, Respondent has not proved either of the two supervision deficiencies. The record does not reveal, at any given time, how many day care teachers may be lying down with a child soothingly rubbing the child’s back or how many teachers may be allowing toddlers to cover their heads with blankets to induce them to take a nap. The evidence does not support a finding of the potential for harm from these two incidents. By administrative complaint dated July 11, 2000, Respondent alleged a lack of supervision for the June 16 ant- bite incident because of the alleged inability of one teacher to supervise the entire area of the playground involved in the case, and the failure of the Center to complete an incident report. The administrative complaint also alleges two additional failures in supervision in lying down with a child and rubbing her back and allowing the children to nap with their heads under the covers. Lastly, the administrative complaint alleges that the Center was not adequately staffed to isolate ill children. The administrative complaint seeks a fine of $450, which Petitioner paid. On July 20, 2000, Respondent received a complaint from an unidentified source stating that one staff person had taken 14 children on a field trip and one child had become separated from the group for an unreported period of time. The complainant also asserted that the three- and four-year- old classrooms had been off-ratio on two days during the prior week. Lastly, the complainant reported that there were untreated wasp nests and ant mounds on the playground. Responding to the complaint, Respondent conducted the final inspection on July 19, 2000. (There appears to be an error in the date of the inspection or the date of the receipt of the complaint.) The inspector found no staffing ratio deficiencies. The inspector saw no wasp nests, but her ability to check for ant mounds was impeded by rain; however, the inspector saw receipts from an exterminator for treatments on June 21 and July 18. As for the field trip, the inspector learned that, on July 12, one employee had driven 13 children to the movie theater. One child was separated from the group and remained in the lobby after the rest of the group had seated themselves in the theater. A theater employee helped the child find the group, whose supervisor seemed not to have realized that she was missing a child. Upon learning of the incident, Ms. Eggnatz terminated the employee. When the inspector discussed this incident with Ms. Eggnatz, Ms. Eggnatz did not say that she had also been at the theater. Ms. Eggnatz later claimed that she had been at the theater, but this is untrue. The stress of repeated complaints--many of which were unfounded--and repeated inspections--many lasting several hours and two occurring on the same day--affected Ms. Eggnatz to the point that she briefly quit as director. Perhaps these same factors prompted her to misrepresent the facts to the inspector concerning the movie field trip. However, Respondent has proved a supervision deficiency because the rules require an additional staff person on field trips. By letter dated August 16, 2000, Respondent informed Petitioner that it was denying Petitioner’s application for an annual license. The letter cites five major areas as grounds for the denial: staffing ratios, supervision, background screening and personnel records, health-related requirements, and incident reporting. Analysis of the Center’s performance is facilitated by breaking down its three-year licensing history into four periods: August 19, 1997, through July 31, 1998 (the first two provisional licenses); August 1, 1998, through July 31, 1999 (the annual license); August 1, 1999, through January 31, 2000 (the third provisional license); and February 1, 2000, through July 31, 2000 (the fourth provisional license). In the first year, Respondent conducted eight inspections of the Center. (All references to inspections in this recommended order are to inspections for which Respondent produced admissible evidence; there were additional inspections.) Staffing ratios and supervision were in compliance at each of the seven inspections monitoring staffing ratios and supervision, except for one supervision deficiency in the March 6, 1998, inspection. In the second year, Respondent conducted 16 inspections of the Center. Staffing ratios and supervision were in compliance at each of these 16 inspections, except for one supervision deficiency in the January 7, 1999, inspection; and one staffing ratio and one supervision deficiency in the January 15, 1999, inspection. In the first half of the third year, Respondent conducted six inspections of the Center. Staffing ratios and supervision were in compliance at each of these six inspections, except for staffing ratio deficiencies in the inspections of August 24, 1999, and October 20, 1999. In the second half of the third year, Respondent conducted 13 inspections of the Center. Staffing ratios and supervision were in compliance at each of these 13 inspections, except for supervision deficiencies in the inspections of April 6, 2000, when an unscreened dance instructor was supervising children, and July 19, 2000, when an additional staff person failed to accompany the movie field trip. As reflected by the frequency of monitoring staffing ratios and supervision, these two items are crucial to the safety of children at a child day care center. The evidence demonstrates no significant shortcomings in the operation of the Center regarding these two items during the Center’s three years of operation. The Center’s operations have not been as good regarding background screening, personnel records, enrollment records, and health records. For these documentary requirements, the Center was not in compliance 14 times the first year, 70 times the second year, 18 times the first six months of the third year, and 21 times the second six months of the third year. There was some improvement in the last year of operation, but the second year was an easy year to follow. These screening and records requirements enable a child day care center to serve its children by providing quality care in a safe, healthy environment. However, the deficiencies proved in this case, while serious, do not constitute sufficient grounds for denial of a license at this time, although additional evidence of a pattern of ongoing deficiencies in these important documentation requirements would be indicative of unsuitability for licensure. As for incident reporting, which is the last basis for the denial, Petitioner demonstrated substantial, although not invariable, compliance. The Center was not in compliance once in the second year and twice in the second half of the third year, although one of these two deficiencies involved several incident reports and the other involved a failure to obtain the signature of the mother of the child bitten by ants. The remaining deficiencies, on which Respondent has not relied directly in declining to renew Petitioner’s license, range from relatively minor deficiencies involving equipment and sleeping mats to more troubling deficiencies involving classroom attendance records (through which staffing ratios are monitored), isolation practices, sanitation, and posting and following planned activities. The cumulative impact of the demonstrated deficiencies in these requirements does not alter the result in this case. In its three years, Respondent has fined Petitioner a total of $1150. Although Respondent has failed to prove many of the alleged deficiencies that supported the administrative fines, the many deficiencies that Respondent chose not to include in these administrative complaints would have sustained several times the total amount that Respondent fined Petitioner.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order issuing Petitioner an annual child day care license for the Naples center with an effective date of August 1, 2000. DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2001. COPIES FURNISHED: Virginia A. Daire, 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 Ira L. Young General Counsel Tutor Time Learning Systems, Inc. 621 Northwest 53rd Street, Suite 450 Boca Raton, Florida 33487 Eugenie G. Rehak District Legal Counsel Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906
The Issue The issue is whether the Beatrice Guardian Angel Daycare violated provisions of chapters 402 and 435, Florida Statutes (2012), and/or Florida Administrative Code Chapter 65C-22, such that its license should not be renewed.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by the Daycare. It is the Department's responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department inspects each licensed day care center three times a year: two unannounced routine inspections (to ensure compliance with the applicable laws and rules), and one renewal application inspection. In the event of a complaint, additional inspections and/or investigations are conducted. Ms. Giles owned, operated and directed the Daycare. The Daycare located on West Lancaster Road opened in November 2011, and was in continuous operation at all times material.6/ Ms. Giles opened the Daycare at this particular location after operating it at a different location. Luz Torres is a family service counselor for the Department. Ms. Torres is trained to inspect day care centers for initial applications, renewal applications and routine inspections. Ms. Torres is familiar with the Daycare, having inspected it several times while it was operational. Inspections of the Daycare revealed operational deficiencies during four inspections, dated February 15; June 20,; July 2,; and November 7, 2012. The specific deficiencies were set forth on inspection reports provided to Ms. Giles at the time of each inspection. Ms. Torres conducted a routine inspection of the Daycare on February 15, 2012 (inspection one). A number of areas of noncompliance areas included physical environmental issues, such as insufficient lighting, gaps in fencing, ground cover for outdoor equipment, and training. Other areas included: a lack of documentation of employee educational courses showing literacy and developmental course training, a 40-hour child care course, and 10 hours of in-service training; items in the first aid kit were missing; deficiencies in food and nutrition, such as unlabeled bottles and sippy cups; and deficiencies in children's health and immunization records, personnel records, and background screening. The Department issued an "Administrative Warning Notification" (notification) to Petitioner based upon the following violations: "[T]he facility's fencing, walls or gate area had gaps that could allow children to exit the outdoor play area. The gate was observed broke [sic] with gaps on both sides." This notification advised Petitioner that the "next violation of a licensing standard outlined in this notice, [would] result in an administrative fine." On June 20, 2012, Ms. Torres conducted a routine inspection (inspection two) of the Daycare. The noncompliant areas included: missing documentation for some children's immunization records; missing documentation of ten hours of in-service training for the Daycare's director; and missing documentation of background screening documents, including an affidavit of good moral character for employees. A second notification7/ (dated June 20, 2012) was issued to the Daycare following inspection two. This notification involved issues regarding a child's health and immunization records, and missing documentation for employees. One child's immunization records had expired. Four staff members were deficient regarding in-service training logs, and an additional staff member had not received the level two screening clearance. In response to a complaint (complaint one), Ms. Torres conducted an investigation of the Daycare on July 2, 2012. The Daycare was found to be out-of-ratio regarding the number of children to staff, and background screening documentation for level two screening for staff members was missing. In a mixed group of children ages one and two years old, the ratio of one staff for six children is required. At the time of the complaint one investigation, there was one staff per eight children. Although this ratio issue was rectified during the complaint one investigation, it was and is considered a violation. The documentation for the level two screening violation for the staff was not corrected during this investigation. A third notification was issued to the Daycare following the complaint one investigation. This notification involved the staff-to-child ratio, and the lack of background screening documentation. The Daycare was notified that the appropriate staff-to-child ratio must be maintained at all times, and the missing Level two screening documentation had to be resolved. This notification advised the Daycare that the "next violation of a licensing standard outlined in this notice, [would] result in an administrative fine." 8/ On August 1, 2012, the Daycare was notified that its license would expire on November 29, 2012. The Daycare's renewal application was due 45 days before the expiration date, or before October 15, 2012. The denial letter set forth that the Daycare's renewal application was filed on October 30, 2012.9/ In June 2012, Ms. Giles became aware that her daughter, Alexis Anderson, had a drug addiction problem when Ms. Anderson's baby was born addicted to drugs. Ms. Anderson and her two children were required to live with Ms. Giles while Ms. Anderson addressed her addiction problem. Ms. Anderson's two children attended the Daycare. Ms. Anderson would visit the Daycare to see her children. On November 7, 2012, as a result of another complaint (complaint two) being filed, DCF conducted an investigation of the Daycare. Ms. Giles reported that on two different occasions, two small bags were found at the Daycare. One small empty bag was found in the Daycare's common hallway. A second bag was found on a desk in the Daycare's office and contained a white residue. After the second bag was found and Ms. Giles was told by an employee what the bags might be used for ("people transport drugs in"), she suspected that Ms. Anderson might have left the bags at the Daycare. Also, after finding the second bag, Ms. Giles banned Ms. Anderson from the Daycare. There was speculation that the two bags contained an illegal substance; however, the two bags were discarded before any scientific testing could be done or any photographs could be taken. There is simply no proof as to what was in either bag.10/ There was no clear and convincing evidence that Ms. Anderson supervised or tended to children other than her own while she was at the Daycare. There was clear and convincing evidence that Ms. Anderson was at the Daycare on multiple occasions and had access to every room and child/children there. Ms. Anderson did not have the appropriate level two screening. In addition to investigating complaint two, child care regulations counselor Christina Bryant also observed inadequate ratios between staff and children, and a lack of qualified or unscreened individuals supervising children. Ms. Bryant observed one staff for five children in the zero to twelve month age group (ratio should be one to four), and she observed one staff to nine children, in the one-year-old classroom (ratio should be one staff to six children). Upon completing a review of the Daycare's record keeping, Ms. Bryant also found that background screening documents were missing for staff members. On November 14, 2012, Child Protective Investigator (CPI), Beauford White was directed to go to the Daycare and remove Ms. Anderson's two children from the Daycare.11/ When CPI White advised Ms. Giles he was removing the children from the Daycare, Ms. Giles became very emotional, and initially told CPI White he could not take the children. CPI White contacted his supervisor who directed CPI White to contact the Orange County Sheriff's Office (OCSO) for assistance in removing the children. Between the time the OCSO was called and when the deputy arrived, approximately 45 to 60 minutes, CPI White had obtained compliance, and Ms. Giles released the two children to his custody.12/ On Thursday afternoon, November 29, 2012, Ms. Giles was asked to attend a meeting on Friday, November 30, 2012, in the Department's legal office regarding the Daycare's license. Because of the short notice, Ms. Giles was unable to obtain an attorney to accompany her to the meeting on November 30, 2012. Ms. Giles attended the meeting by herself with a number of Department staff. Ms. Giles was given the following option: execute a relinquishment of the Daycare's license, or the Department would seek to revoke the license. Ms. Giles did not know the law. Ms. Giles executed the relinquishment13/ of the Daycare's license because she was thinking that "revoke sound[ed] horrible to" her. She did not want to relinquish her license, nor close her business, but she did not feel she had any choice in the matter. The totality of the circumstances under which Ms. Giles found herself renders the "relinquishment" less than voluntary. After this meeting, Ms. Giles returned to the Daycare and was present when Ms. Torres removed the Daycare's license from the wall. Mytenniza Boston, a Daycare employee, was also present when Ms. Torres removed the license. Ms. Giles did not tell Ms. Boston or any of the other Daycare employees that the Daycare's license had been relinquished, nor did she start notifying parents of the Daycare's closing. On Monday, December 3, 2012, around noon, Department investigators arrived at the Daycare and found children in the opened facility. Ms. Giles was at the Daycare making telephone calls to parents asking them to come pick up their child or children. The Daycare was open for business despite the fact that Ms. Giles had relinquished her license on Friday, November 30, 2012. On occasion Pervis Giles, Ms. Giles' then husband would walk to the Daycare to talk with Ms. Giles. Mr. Giles would also cut the Daycare's grass, unlock the Daycare's door for daily operations, and participate with Ms. Giles in making business decisions about the Daycare. Ms. Giles did not consider these activities to be working for the Daycare; however, common sense dictates otherwise. Ms. Giles has several children. At various times during the Daycare's operation, Ms. Giles' children were at the Daycare volunteering, cleaning up or helping with the Daycare children in some fashion. Ms. Giles' children did not have the required level two background screening as Ms. Giles did not know that her children needed to be screened. Ms. Giles' lack of understanding regarding who is required to be screened is troublesome. Ms. Giles has been in the daycare business for many years, yet she failed to comply with basic safety measures.
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 renewal application. DONE AND ENTERED this 22nd day of July, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2013.
The Issue Whether the Petitioner's application for licensure as a Residential Foster Care Home should be granted.
Findings Of Fact Petitioner, Patricia Rovai, was first licensed by Respondent as a Developmental Services Residential Foster Care Home in 1989. Additionally, since 1975, Petitioner was and continues to be a Licensed Practical Nurse. Ms. Rovai specialized in providing foster care to children participating in the Medically Complex Children Foster Care Program. On January 18, 1996, a meeting was held between Donna Mims, head of foster care licensing for Developmental Services, and Petitioner and her husband. The meeting was held in regards to the conditional license which had been issued to Petitioner and was due to expire on January 31, 1996. During the meeting, Ms. Mims informed Petitioner that she was qualified to receive an ordinary foster care license and could receive such a license. However, Children’s Medical Services was not willing to designate, certify, or endorse Petitioner for participation in the medical foster care program. She therefore, would not be able to provide foster care to a medically complex child. At the conclusion of the meeting and in part due to the fact that Petitioner was exhausted after living through two successive hurricanes, Petitioner chose to allow her license to expire. Respondent admits that, other than the allegations set forth in its 1996 licensure denial letter, Petitioner is qualified to be licensed as a developmental services foster home. Around July 1996, Petitioner submitted an application for licensure as a developmental services foster home under Chapter 393, Florida Statutes, and Chapter 10F-6.009, Florida Administrative Code. On August 21, 1996, Respondent notified Petitioner by letter that her application had been denied. The letter denying a new license to Petitioner addresses several concerns of the Department based on Petitioner's past performance as a medical foster parent. The letter specifically referred to Petitioner's alleged problems with her foster child's school attendance, cooperation with Departmental staff or therapists assigned to her foster child, failure to utilize or inappropriate use of community resources and skilled nursing care, failure to encourage parental involvement or reunification, failure to encourage the child to achieve, and failure to share information regarding parental involvement with the Department. The letter cited Rule 10F-6.009, Florida Administrative Code, dealing with foster parent responsibility and training of the foster child. In general, foster care providers are subject to the promulgated rules applicable to foster care facilities and caregivers contained in Chapter 10F-6.009, Florida Administrative Code. These are the only rules applicable to foster care licenses for developmental services foster care or medically complex foster care. Whether a licensee provides medically complex foster care seems to depend on whether the licensee is designated, endorsed, or certified by Children's Medical Services. Children's Medical Services was part of Respondent, but is now part of a different agency. The evidence was unclear on the exact legal process for becoming a medical foster care parent. Even the various agencies involved seemed confused regarding the licensure status of a medical foster care parent. The licensure requirements set forth in Chapter 10F-6.009, Florida Administrative Code, are separate from the Statewide Operation Plan, which is not a rule. In fact, the Statewide Operation Plan specifically states at Chapter 7, page 4 that "failure to meet the requirements for Medical Foster Care does not necessarily affect their license as a 'traditional' foster parent." No administrative rules have been promulgated for the medical foster care designation. However, the effect of the medical designation upon a foster home license is to allow the foster home to become a Medicaid provider and be paid for their service from Florida's Medicaid program. The payment from Medicaid for the medical foster care designation is approximately $2,000.00 per month per child. The foster home also receives $440.00 per month per child from developmental services. The vast majority of children in the medically complex program live with their biological families. When a child needs to be placed in a medical foster home, the skills of the medical foster parent are matched to the child’s needs. The program looks at whether the medical foster parent is trained, licensed, and credentialed to meet the needs of a given child. If a medical foster care parent lacks a skill a potential placement might require, then the foster parent is given training to develop that skill. All the foster care parents assigned medically complex children have some background in the medical field. In February of 1989, at about two-years old, Adam Ingram was placed into Petitioner's care as a participant/patient in the Medical Complex Children Foster Care Program within the Developmental Services Program of Respondent. Dr. Rex Northup, the Medical Director for the Medical Foster Care Program, considered Adam Ingram to be one of the higher level of care children in the Medical Foster Care Program. Specifically, Adam Ingram was born with and continues to suffer from myotonic dystrophy. Myotonic dystrophy is a congenital disorder that affects neuromuscular formation and has an extensive impact on other bodily systems. Adam Ingram's mother, Karen Moncrief, permanently suffers from the related condition of muscular dystrophy. Adam Ingram's congenital disorder adversely affects his central nervous system functions, muscle functions, gastro- intestinal functions, cardiac functions, and respiratory functions. In short, Adam’s muscles, lungs, heart, stomach, legs, throat, bowels, and bladder, etc., do not work well. As a result of his medical condition, Adam Ingram has a respiratory insufficiency that required a tracheostomy. He is periodically ventilator-dependent when he is asleep or ill. When not ventilated, Adam’s respiratory system must be cleared of mucous through suctioning, coughing, or throat clearing. Because of his complex and often fragile medical condition, Adam Ingram receives treatment from a neurologist, ophthalmologist, otolaryngologist, pulmonologist, cardiologist, gastroenterologist, and orthopedist. He has been hospitalized on at least seven occasions between 1984 and 1995. Otherwise, Adam has frequently been below normal health. Adam Ingram has also needed and received surgical intervention relating to his trachea tube. Because of his tracheostomy, he is at a higher risk for contracting respiratory illnesses, such as colds. He has also had problems with controlling his bowels and with voiding his bladder, causing bladder distension. Adam is not potty trained and must wear diapers. Additionally, due to his medical problems, Adam Ingram has been delayed in development of speech, vocalization, and communication skills. However, he is of normal intelligence and emotion. He can to some degree operate a computer. In sum, Adam, as a medically complex patient, is one of the higher level of care children in that he requires a great deal of direct care to manage his medical problems. He is not as unstable as some of the other children in the program that require more technological assistance and medical care. These more unstable children tend to also lack mobility, activity, and awareness. Adam, on the other hand, is quite mobile, active, and aware. He requires and demands a great deal of attention, as any young child does. Adam is simply a handful to care for. As part of undertaking Adam’s care, Petitioner was specially trained to operate various ventilators required by Adam. Petitioner also served as a demonstrator for other foster parents who required training. Judith Benford was the medical foster care nurse who had substantial contact with Petitioner and who was primarily knowledgeable in the Department as to the conditions in Petitioner's home. She rated Petitioner as satisfactory in some areas and unsatisfactory in the areas noted in Respondent's letter of denial. However, Petitioner was recommended for re- licensing by Benford around October 6, 1995, after a complete evaluation of Petitioner's performance with Adam Ingram. In November of 1995, Petitioner's license was conditionally renewed. The only specific written conditions were that she recharge her fire extinguisher and renew her CPR certification. The capacity of the home was reduced to one bed. Although not listed specifically on the conditional license, other conditions on Petitioner's license, issued in November 1995, were to develop a list of people who were interested in licensure and would be willing to care for Adam, improve Adam’s school attendance, and other “concerns” expressed at Petitioner’s and Adam’s medically handicap assessment team (MHAT) staffings. It should be noted that these unspecified “conditions” or “concerns” probably were ineffective as limitations on Petitioner’s conditional license. What is relevant for this hearing is that these conditions had been ongoing issues throughout Petitioner’s time as a medical foster parent. One major concern was Petitioner's continual request for additional help or respite care from Respondent when the resources available are limited by budgetary concerns of the Department. Because funding for extra help is limited, medical foster parents are encouraged to try to provide cross-coverage for each other, in that one medical foster parent would take care of another's children to allow the other foster parent a break or respite for an evening, weekend, or whatever. This is a reciprocal arrangement between medical foster homes. However, in the absence of an available swap between foster parents for respite care, the Department has the ability and does occasionally provide extra help to the foster parent. The problem from the Department's point of view is whether Medicaid or other Departmental funds can be and are available to pay for the assignment of extra help to a foster parent. Medicaid pays for extra help only when the medical needs of the child require the extra service. Other Departmental funds, which are often not available, pay when the extra help is needed by the foster parents because they are exhausted or ill. Nursing care requested by Petitioner on some occasions was not provided. Additionally, the medical foster parent is the primary eyes and ears for the Department regarding the medical services required by any medical foster child. For that reason the communication and feedback between the licensee and the Department has to be good, trusted, and comfortable. In May 1993, Petitioner was urged to swap respite services with other medical foster parents. Petitioner was hesitant because not all medical foster parents were trained in ventilator usage and she had a low opinion of some of the care rendered by some of the medical foster parents. At the time, at least one other medical foster parent had ventilator training. However, the evidence did not show that the ventilator-trained foster parent was able to provide respite care to Petitioner when she needed it. The Department recognized the problem with the lack of ventilator training and on July 7, 1994, all medical foster parents were given training on ventilator usage. In the winter of 1994, the department was attempting to work out respite help for Petitioner. The Department provided some respite help for 12 hours per month at $7.50 per hour. For unknown reasons, the respite was not used. Petitioner was also encouraged to obtain services through developmental services. The evidence did not show what services were available, if any. In December, 1994, the Department offered to temporarily place Adam in another medical foster home so Petitioner could get some rest. Petitioner declined because of her opinion of the poor care rendered by that foster home and the fact that the preparation for moving Adam was just as taxing as his staying. On January 10, 1995, a private duty nurse was provided by the Department. Petitioner directed the nurse to take Adam outside to swing. The evidence did not show whether any medical care was rendered during this visit. In February 1995 a private duty nurse assigned to Adam found Adam in the living room watching TV with Petitioner. At the time, no medical symptoms of significance were noted by the nurse. On March 20, 1995, Petitioner reported that Adam was coughing incessantly and needed frequent suctioning every 15 minutes. Petitioner requested additional nursing help. That same day the Department’s supervising nurse visited the home for one and one-half hours. During that time, Adam’s condition was stable; he did not cough and did not need suctioning. The Department did not provide additional nursing help. Also, sometime in March 1995, a private duty nurse was utilized to cleanup Adam’s room, linens, and bed. She also emptied the suction machine and installed a new catheter. The evidence did not show whether private duty nursing care was needed. Around May, 1995, the department lost confidence in Petitioner’s ability to determine when Adam was sick. The loss in confidence was due in part to the high number of school absences, in part to the Petitioner’s frequent requests for respite help, and in part due to the department’s suspicion that Petitioner was overstating Adam’s illnesses in order to obtain more help. In May of 1995, the Respondent instituted close supervision, monitoring, and support in an effort to prevent disruption in the placement of Adam in the Petitioner's home. During this time, the Petitioner's daughter, Dana, was providing some of the extra nursing care to Adam. School attendance was basically non-existent. Petitioner increased her request for nursing services in July 1995 after becoming aware that another child who was medically more complex than Adam was receiving additional nursing services. Petitioner, correctly, felt it was her duty to seek the best care for Adam. Between July and the end of October 1995, Petitioner was averaging around 16 hours per week of private duty nursing. During that time period, Adam was experiencing chronic bronchitis and other illnesses, in part due to the fact that his trachea tube needed to be re-seated. Sixteen hours of private duty nursing care per week for a child such as Adam is unusual but not unreasonable. In August 1995, an extra private-duty nurse was provided to Petitioner. During that time, Adam put himself in his wheelchair and went outside to swing for 30 minutes. Adam then watched TV and played pretend games in the front room. The evidence did not show whether any medical care was rendered during the nurse's visit. To resolve some of the Petitioner’s problems with inadequate help, the Department in 1995 requested that Petitioner develop a “corrective action program” to maintain the placement of the child in her home. Petitioner continuously attempted to develop a respite system by involving and or recruiting other potential foster care providers into the program. However, Adam Ingram's complex medical condition and activity level limited the availability of such respite providers. Either the recruits lost interest in pursuing licensure or qualified caretakers would observe Adam and decide he was to much to deal with. As the foster care parent to Adam Ingram, Petitioner was considered to be the primary person to evaluate Adam's health to decide whether Adam was healthy enough to attend school. However, Adam's mother, Karen Moncrief, was expected to provide six to eight hours of care per week as well as provide some respite care. At some point during Adam’s placement at Petitioner’s home, Ms. Moncrief met Petitioner’s nephew. Ms. Moncrief and Petitioner’s nephew were eventually married. Karen Moncrief has always been involved in Adam’s care. However, her involvement was often sporadic due to complications from her medical condition and complications of her pregnancy. She often would not follow through on promises of caring for Adam or promises of helping Petitioner with Adam’s care. Her involvement was inconsistent. Therefore, the reports of Karen’s involvement with Adam reflected that inconsistency. The Department concluded that the problem of inconsistent reporting or refusal to share such parental information was because Petitioner was being inconsistent in her reports on parental involvement or not including such information in her reports. The Department’s conclusion was wrong and not based on the facts regarding Ms. Moncrief’s behavior. On September 29, 1995, Adam was scheduled to go on a weekend visit to the biological parent’s home. However, Petitioner refused to permit the visit because the home was in poor condition and not suitable or safe for Adam to visit. The evidence showed other parental visits were encouraged. Also, on September 29, 1995, after Adam’s mother had once again failed to keep her promise that she would help Ms. Rovai with Adam’s care, Ms. Rovai became very upset and called Respondent to come and get Adam. She was leaving. After some conversation, Petitioner calmed down and Adam was not picked up by the Department. On October 20, 1995, Petitioner submitted a letter of resignation as the foster parent of Adam. The resignation was to be effective in 30 days. Towards the end of Petitioner's licensure, on November 15, 1995, at 9:30 p.m., Petitioner called the Department’s supervising nurse and reported that Adam had labored respiration and retraction and was generally sicker than usual. The nurse advised Petitioner to take Adam to the emergency room. Petitioner reported she was too ill and exhausted to take Adam to the emergency room. Adam’s mother was called and she took Adam to the emergency room. The emergency room exam did not reveal anything unusual in Adam’s condition and Adam was well, for Adam. On November 16, 1995, Petitioner requested that the supervising nurse come to Petitioner's home to see Adam. Petitioner also indicated she was still ill and exhausted. The supervising nurse obtained Medicaid approval for 8 hours per day of extra private duty nursing care for four days based on Petitioner's exhaustion and for support of the continued placement of Adam in Petitioner’s home until he was moved to Hattie Grant’s home. Throughout 1995, the supervising nurse visited Adam on at least 8 occasions to double check his condition against any illness Petitioner had reported. Except for one visit when Adam was febrile, Adam appeared healthy enough to attend school. However, these visits were often several hours after Petitioner’s report and usually in the afternoon, enough time for fever, nausea, or congestion to reduce with medication. The Medical Director of the Medical Foster Care Program testified that Petitioner's request for nurses and or respite care were not unreasonable given that Adam was a high-level of care and medically needy person. Petitioner was simply expected by the Department to live with the lack of assistance, keep quiet about it, and not make requests for help, except when she needed help. The double-bind demands the Department was placing on Petitioner were simply unreasonable and cannot serve as a basis for denying her application for licensure. Around the end of November 1995, Hattie Grant, a medical foster care parent, agreed to take Adam Ingram into her home. The change in foster care parents was agreed to by Adam’s mother, Karen Moncrief. Ms. Moncrief agreed for reasons she described as manipulation of her by Petitioner. However, Adam along with his mother and Petitioner’s nephew continued to see Petitioner at church and visit her at her home. The medical condition of Adam improved once in Ms. Grant’s home. He did not need as much acute care. Additionally, his school attendance increased dramatically. His manners at office visits with the doctor improved. However, this improvement could not be attributed to the change in placement or to anything Petitioner did or did not do in caring for Adam. It is very likely that the improvement was due primarily to his physical maturation. It is also very likely that re-seating his tracheal tube caused Adam’s propensity to become ill to dissipate. Ms. Grant did not require the amount of additional skilled nursing help that Petitioner had. The lessening of the need for skilled nursing help may have been due, in part, to Adam’s improved health and better attendance at school, giving Ms. Grant a break from caring for Adam. Additionally, Ms. Grant expressed serious concerns about harassment and constant scrutiny by the parents of Adam. One such complaint arose when Adam’s mother, accompanied by Ms. Rovai, took Adam to the emergency room from school. The emergency room physician could not find anything wrong with Adam. Another complaint was that Adam was losing weight. Weight loss was not borne out by any medical examination. Ms. Grant felt that she could not do anything right in the opinion of Adam’s parents. Eventually, an abuse complaint was filed against Ms. Grant. The complaint was determined to be unfounded. She was concerned about her reputation, the constant scrutiny and second guessing of her care. The parents of Adam did not testify at the hearing. The testimony from Ms. Rovai and Ms. Grant was in conflict as to the legitimacy of various complaints regarding Ms. Grant’s care of Adam and who was behind those complaints. The evidence did show that some of the complaints came from Ms. Rovai. However, the evidence did not bear out the Department’s conclusion that Ms. Rovai was illegitimately interfering with Adam’s placement at Ms. Grant’s home. At the end of the school year, around June 1996, Adam was removed from Ms. Grant’s home at her request. He was taken back to Ms. Rovai’s house. The evidence that Adam’s health or behavior deteriorated during this second stay at Ms. Rovai’s home consists of doctor’s notes from one medical examination on July 15, 1996. The doctor did not testify at the hearing. Unexplained doctor’s notes related to one visit simply do not form a basis to conclude that Ms. Rovai’s care of Adam was inadequate. Adam was not a participant in the medical foster care program while at Ms. Rovai’s house. After a short period of time Adam was reunited with his mother and remains in her care to date. Since being in his mother’s care Adam has become a stronger individual. He has shown increased joint flexibility, more ability for independent movement with braces and crutches. He continues to have less need for acute care. Additionally, his school attendance has remained fairly good. Adam continues to demonstrate good manners. Again, the improvements in Adam’s condition are likely due to his continued maturation. The evidence clearly showed that Petitioner actively assisted and cooperated with Adam's physical therapist assistant and physical therapist. Apparently the Department failed to acquaint itself with the facts of Adam's case and based its allegation of failure to cooperate on very limited and uninformative notes contained in Adam's records. In July 1995 a behavior assessment by Lakeview Hospital Special Population was arranged for Adam. The first meeting with the assessor was postponed due to Adam’s ill health. Shortly after the postponement, the assessor met with Adam and viewed him at Petitioner's home. After one visit, the assessor determined that Adam did not need the help of a behavioral specialist. The assessor suggested some behavior modification techniques which Petitioner was already utilizing. Clearly, the evidence showed that Petitioner cooperated with the behavioral specialist assigned to review Adam Ingram's behavior. The evidence also showed that the Department again did not acquaint itself with the facts of Adam's case and based its conclusions about Adam's behavior on the Department's limited contacts with Adam and very limited and uninformative notes in Adam's record. Adam’s attendance at school while in the care of Petitioner was less than 50 percent. In the semester of school beginning January 1994, Adam was seen only 10 times by the occupational therapist at school. The other major complaint regarding Adam’s care by Petitioner centered on Adam’s poor school attendance. According to competent substantial evidence provided by Adam Ingram's teacher, Vernell R. Martin, Petitioner actively sought to encourage Adam in educational activities at the Oriole Beach Elementary School. There were no staff nurses working at Oriole Beach Elementary School. The school Adam attended while living at Ms. Grant's home provided more for children with special needs. It had staff nurses and could render better medical care to Adam. He therefore could attend more often when he was not feeling well. While at school, Adam would need some suctioning through the day. He also receives gastronomy feedings and various medicines through the day. Since Adam is not potty trained he requires his diapers to be changed when needed. He would receive general physical stimulation to develop his muscles and help with wearing ankle foot orthopedic supports. Physical therapy, occupational therapy and speech therapy were provided at school. However, the evidence also demonstrated that these various therapies were also provided at Petitioner’s home either by Petitioner or through other professionals. Home physical therapy would not continue once Adam reached a plateau or refused to participate. On the other hand, therapies received at school would continue daily or weekly as established in Adam’s Independent Educational Plan. Adam was seldom sent home for medical problems at school. However, given his poor attendance, it is speculation how much he would have been sent home had he been at school. On many occasions, Adam's complex medical condition prevented him from safely attending school. At the beginning of the 1994 school year, Petitioner, at the Department’s suggestion, was going to arrange for Adam to ride the school bus to school and be picked up from school by Petitioner. Petitioner scrapped the school bus ride when she discovered that no air-conditioned bus was available to transport Adam. Adam had apparently become overheated and ill when he rode the first time on a non-air conditioned bus. On the other hand, while at Ms. Grant’s home, Adam was able to ride in a non-air conditioned bus over about a six month period, some of which was in hot weather. Still, Petitioner was capable of transporting Adam to school in her air-conditioned car. The evidence did not demonstrate that Adam was harmed by his poor school attendance. From year to year, while in Petitioner's care, Adam achieved the educational, therapeutic, occupational, and social goals established in his Individual Educational Plan. On whole, Adam is a well-adjusted child. Ms. Rovai had legitimate reasons for his absences. Given this evidence, Adam's school attendance cannot form a basis for denying Petitioner's license application. Finally, another issue raised for the first time at the hearing was whether Petitioner was suctioning too deep or too often. One bronchoscope indicated that the catheter used for suctioning had touched the trachea by being inserted too far into the tracheostomy. The evidence did not show that Respondent had given corrective instructions to Petitioner on either of these two points. Moreover, suctioning too deep is a common problem and does not reflect poor care or a failure to follow Departmental instructions. Finally, the type of catheter used by Petitioner to suction Adam had a stop on it to prevent too deep insertion of the catheter into the trachea. In short, neither of these late raised issues were established by the evidence and neither of these issues can form a basis for disqualifying Petitioner from receiving a foster home license.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the application of Petitioner be GRANTED. DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1997. COPIES FURNISHED: Matthew D. Bordelon, Esquire Bordelon and Bordelon, P.A. 2717 Gulf Breeze Parkway Gulf Breeze, Florida 32561 Rodney M. Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 Katie George, Esquire Department of Children and Family Services Suite 601 160 Governmental Services Pensacola, Florida 32501 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The Department of Health and Rehabilitative Services (HRS) seeks an administrative fine of $100 from the Wesley Child Development Center (Wesley) for violation of rules related to child supervision. The issues are whether the violation occurred and whether the fine is appropriate.
Findings Of Fact Wesley Child Development Center II is a child care facility licensed by the Department of Health and Rehabilitative Services (HRS) for operation at 42 East Jackson Street, Orlando, Florida. It is a pre-school facility associated with First United Methodist Church. On January 31, 1995, some time between 3:50 and 4:50 p.m., there were approximately seventeen (17) children and four (4) staff on the playground. The playground is confined with a sturdy, four-foot chain link fence. A.N. was a two-year old toddler on the playground; his teacher was Pat Vetter. A.N. had been playing with buckets and cars by himself near the fence and Ms. Vetter could see him through a play tunnel where two other children were playing. After he played alone for about 10-15 minutes, Ms. Vetter needed to start picking up toys. A.N. gave her his bucket. She turned from him and had taken about five steps when she heard him cry out with an angry cry. She turned back and saw him sitting on the ground with his legs out in front; he had been standing at the fence looking out at the parking lot. Ms. Vetter picked up A.N. and he stopped the angry cry, but continued whimpering. She consoled and held him until his mother arrived. There were no visible signs of any injury: no bruises, blood, scratches or swelling. When his mother picked him up, A.N. did not want to walk. She took him to a restaurant for supper, but later took him to the doctor for an examination. X-rays detected a spiral fracture of the child's femur bone. The cause of the injury remains a mystery to the child care facility staff, who were appropriately dismayed, and to the HRS staff who thoroughly investigated the incident. Dr. Seibel, the child protection team physician, conjectured that A.N. must have attempted to climb the fence, hooked his foot and fell, twisting his leg. No one observed the fall. Ms. Vetter was responsible for A.N.'s supervision and that of three other children on the playground. She was near him and aware of what he was doing. The accident occurred in the brief instant that she turned away to put up some toys; she did not leave the playground. The direct supervision staff to child ratio at the facility and on the playground was better than the 1:6 or 1:11 required by HRS' rules. There is no evidence that the staff were gossiping or engaged in any non-supervisory activity. There has never been a problem with supervision at this facility before, according to the HRS inspectors. No one contests that the child was injured at the facility. Ms. Vetter believes that he could not have had the fracture when he came to school that morning. Although other children have climbed on the fence, she has never observed A.N. trying to climb it. Still, the fence is the only plausible explanation for the injury.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter its final order dismissing the administrative complaint. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of October, 1995. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1995. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District Legal Counsel Department of Health and Rehabilitative Services Suite S-827 400 West Robinson Street Orlando, Florida 32801 Elizabeth Jenkins Director Wesley Child Development Center II 142 East Jackson Street Orlando, Florida 32801
