The Issue Whether Petitioner is entitled to a Foster Home License.
Findings Of Fact Petitioner, Marion Hanes, had for a number of years been granted custody of two very troubled female foster children by a Pennsylvania court. Ms. Hanes grew to care a great deal for these two foster children and while they were in her custody helped the two children feel loved and cared for. When Ms. Hanes and her husband moved to Florida, she asked the court to grant her permission to take the girls to Florida to live with her and her husband. Because of Ms. Hanes' good care of these children and the desires of Ms. Hanes, the children, the Pennsylvania social service agency and the Pennsylvania court, in order to maintain a consistent environment for these children, the court granted Ms. Hanes permission for the girls to live with her in Florida. After arriving in Florida, Petitioner discovered that the girls' Pennsylvania Medicaid cards would not be accepted by Florida Medicaid providers. Therefore, in order to obtain school and medical services for her foster children in Florida, Ms. Hanes had to obtain Florida Medicaid cards for her charges. In pursuit of the Medicaid cards, Ms. Hanes was informed that she would have to have a foster home license for the home in which the girls would be living. Ms. Hanes made application to the Department of Health and Rehabilitative Services for a Foster Home License for her residential home located at 1015 Edison Drive, Pensacola, Florida. The home is located in a middle-income residential area and is an ordinary brick house resembling the other homes in the neighborhood. The front bedroom windows in the house measure 15 inches in height and 34 inches in width. The bottom of the windows are approximately 46 inches off the ground. The children in Ms. Hanes' care would occupy one of the bedrooms with the 15 by 34 inch windows. On June 24, 1991, Robert Herron, Fire Prevention Specialist and licensed Fire Inspector inspected the Petitioner's home located at 1015 Edison Drive. The purpose of the inspection was to determine whether the residential home met fire safety requirements applicable to houses which will serve as foster homes. The Fire Inspector testified that the Department's long-standing, statewide policy was to require that foster homes meet Chapter 22 of the NFPA 101 Life Safety Code. The NFPA 101 Life Safety Code, Chapter 22-2.21(b), requires that windows in a residential home have a clear opening of not less than twenty-four (24) inches in height and twenty (20) inches in width, with the bottom of the opening not less than forty-four (44) inches above the floor. Mr. Herron further testified that exceptions for good cause had been granted to the window size requirement, but only when a window's dimension varied by one or two inches. The Hanes' windows were denied an exception. The Life Safety requirement has not been adopted by HRS as a rule. Nor has the Life Safety requirement been adopted as a rule applicable to residential or foster homes by the State Fire Marshals office. Additionally, the evidence did not show that the Life Safety requirement has been adopted by any local building authority which would have code authority over the Hanes' home. The agency did not put on any evidence which would demonstrate the reasoning behind this unadopted rule requirement. Mr. Herron's inspection of the Hanes's home revealed that the bedroom windows in the Hanes' home did not meet the NFPA 101 Life Safety Code standards. Specifically, the fifteen (15) inch height of the windows was short by nine inches from the NFPA Life Safety Code's standard. Importantly, the evidence did not show that the Hanes' home was unsafe. In fact, the better evidence in this case demonstrates that the Hanes' home presents a safe and secure environment for the Hanes and the foster children and the windows in their present condition appear to be big enough to allow passage in an emergency. As of the date of the hearing, the Hanes had not increased the size of the bedroom windows to twenty-four (24) inches. Mr. Hanes stated the reason these windows had not been enlarged following Mr. Herron's inspection was because other neighborhood houses were similar in style to the Hanes' house and the esthetic changes were undesirable to the Hanes. More importantly, the evidence demonstrated that removing these foster children from Ms. Hanes' care would not be in their best interest and could cause more harm than good. Put simply, the needs of these children for a consistent and loving environment outweigh the need for strict compliance with an unadopted safety standard given the fact that the home is safe. Therefore, Ms. Hanes is entitled to a foster home license for her home located at 1015 Edison Drive, Pensacola, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: that the Petitioner's application for licensure as foster parents be granted. ENTERED this 9th day of August, 1993, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5134 The facts contained in paragraphs 1, 5 and 6 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 2, 3, 4 and 7 of Respondent's Proposed Findings of Fact are subordinate. 4. The facts contained in Petitioner's letter dated April 4, 1993, are adopted in substance, insofar as material. The characterization of Respondent's Proposed Recommended Order and testimony at the hearing are not ruled upon since no factual matters are involved. COPIES FURNISHED: Marion Hanes 1015 Edison Drive Pensacola, FL 32505 Christopher R. Hunt Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 8420 Pensacola, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether the Department of Health and Rehabilitative Services should grant petitioners' applications for certificates of need for the establishment of Medicare certified home health agencies in Hillsborough and Polk Counties, Florida.
Findings Of Fact HRS thereby adopts and incorporates by reference the findings of fact set forth in the recommended order except for the last sentence of paragraph 32 and paragraph 33. See discussion in ruling on exceptions.
Recommendation Based upon the foregoing findings of fact and conclusions of laws, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting and issuing CON Nos. 3605 and 3606 to Medical Personnel Pool. DONE and ENTERED this 25th day of April, 1986, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986.
Findings Of Fact The Applicants And Their Applications Petitioner, Medical Personnel Pool of Southwest Florida, Inc. (Medical Personnel Pool), is a wholly-owned subsidiary of Medical Personnel Pool, Inc., an operating division of Personnel Pool of America, Inc., a wholly-owned subsidiary of H & R Block, Inc. Personnel Pool of America, Inc., operates 215 home health agency offices in 42 states and in Canada, 145 of which are Medicare-certified. In Florida, Medical Personnel Pool, Inc., operates 27 offices, 5 of which are Medicare-certified. Medical Personnel Pool's corporate headquarters are in Fort Lauderdale, Florida. Medical Personnel Pool has applied for a Certificate of Need for Medicare-certified home health services in Lee, Collier and Charlotte counties in HRS District VIII. The services are proposed to be provided out of Personnel Pool's existing Fort Myers office which has been in operation over ten years. Medical Personnel Pool's existing operations out of Fort Myers are not Medicare-certified and do not serve Medicare patients. Medical Personnel Pool has represented in its application that it will commit 2% of its total visits to Medicaid patients and one hour of uncompensated visits to indigent patients for every 20 hours of visits to Medicare patients for which it is reimbursed. The indigent commitment would be recorded and accumulated until the commitment reaches the approximately 10 to 20 visits necessary to start and finish a case for an indigent patient. Medical Personnel Pool also represents that it will operate all of its home health services out of the same corporate entity out of which it operates Medicare-certified home health services. In this way, Medical Personnel Pool is committing to charge its Medicare-certified patients no more than it charges its private pay patients. Petitioner, DeSoto Memorial Hospital (DeSoto Memorial), is a private, not-for-profit acute care community hospital located in HRS District VIII in Arcadia, DeSoto County, Florida. DeSoto Memorial has provided health care services to DeSoto County since 1968. It is the only acute care general hospital located in DeSoto County. It provides services to patients regardless of ability to pay and commits in its application to provide 10% of its home health services to Medicaid patients and 8% to indigent patients. DeSoto Memorial has applied for a Certificate of Need to provide home health services in DeSoto County. Its proposed home health agency would be located at the existing hospital facility. Criterion Section 381.494(6)(c)1. (The need for the health care facilities and services and hospices being proposed in relation to the applicable district plan and state health plan adopted pursuant to Title XV of the Public Health Service Act, except in emergency circumstances which pose a threat to the public health.) 1985-87 State Health Plan. The 1985-87 State Health Plan states in part: "Policy makers are increasingly concerned about providers' willingness to serve Medicaid recipients and medically indigent Floridians." The State Health Plan references efforts by the Medicaid program since 1981 to increase Medicaid reimbursement for home health services and to increase medically indigent access to home health services. However, the State Health Plan concludes: "Rather than attempt to establish unrealistic performance expectations for private providers, the Legislature will either have to increase resources available to reimburse those providers for home health services to the indigent or provide support to the county health units." The State Health Plan also cites as an objective: "To assure that the number of home health agencies in each service area promote the greatest extent of competition consistent with reasonable economies of scale by 1987." It recommends: "Develop a need methodology based on historic cost data for Florida home health agencies." However, the evidence in this case was that additional Medicare-certified home health agencies will not significantly contribute to price competition. To the contrary, the evidence was that additional Medicare-certified home health agencies actually will cause a relatively small increase in the cost of Medicare-certified home health services. This cost increase will be small because home health services are not capital intensive, and duplication of services and under-utilization of home health services will not require as much of a price increase to cover costs as would duplication of services and under-utilization of capital intensive hospital services.(Only 2% of a home health agency's costs are capital costs while 15 to 20% of a hospital's costs are capital costs.) In addition, the price for Medicare- certified home health services is subject to a cap which most home health services already are close to. Additional numbers of home health agencies would foster competition in the quality of services and responsiveness of services to the needs and wants of the patients in an area. Additional Medicare-certified home health agencies that serve a significant percentage of Medicaid recipients and medically-indigent patients would have a competitive advantage in getting referrals over Medicare-certified home health agencies that do not serve Medicaid recipients and the medically-indigent. To compete, existing Medicare-certified home health agencies probably would initiate comparable service for Medicaid and medically-indigent patients. This desirable effect of competition would help alleviate the policy makers' concerns referred to in Finding Of Fact 7 above. But see Conclusion Of Law 1 below. (ii.) District VIII Local Health Council Health Plan. The 1985 District VIII Local Health Council Health Plan adopted August 21, 1985 states: "Home health care services are generally available to all residents within District Eight." However, this conclusion drawn by the local health council is based upon an application of HRS proposed rule 10-5.11(14), Florida Administrative Code. This rule has been held invalid. See, Final Order, Home Health Services and Staffing Association, et al. v. Department of Health and Rehabilitative Services, Case No. 85-1377R, March 12, 1986. In addition, based upon the evidence in this case, the proposed rule does not accurately assess the need for the home health agencies proposed by Medical Personnel Pool and DeSoto Memorial. See Findings Of Fact 27 through 70 below. The District Health Plan also establishes sub- districts. Pertinent to this case, Charlotte County, Collier County, DeSoto County and Lee County are established as separate sub-districts. Sarasota County also is established as a separate sub-district. Glades and Hendry counties are combined as the last sub-district. The District Health Plan's sub-district designations were established on the basis that they: (1) have a geographic size which meets reasonable travel distances and travel times; (2) have a population size adequate to support at least one agency; (3) are geo-politically consistent; and (4) have available population, socio-economic and health statistics to document use rates and projections. The District Health Plan also recommends: "Sub- districts without a home health agency office in one or more of its principle [sic] communities should be identified as a priority area for the expansion or new establishment of a home health agency." In addition, the District Health Plan establishes the policy: "Continuity of patient care should be assured through the establishment of formal coordination arrangements between home health agencies, and physicians, hospitals, nursing homes, and community social service agencies and organizations." Finally, as another policy, the District Health Plan states: "Home health care should be accessible to all persons in need, regardless of ability to pay or source of payment." But see Conclusions Of Law 1 below. Criterion Section 381.494(6)(c)2. (The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services and hospices in the service district of the applicant.) There are 19 existing licensed Medicare-certified home health agencies (sometimes referred to simply as home health agencies) with home offices in District VIII. This number excludes Home Care Services of Hendry County which ceased operations as of March 22, 1985. In addition, one home health agency in District VIII has been approved, but is not yet licensed and operating. (Homecare of Glades and Hendry Counties, approved in a later batching cycle is now on administrative appeal in Division of Administrative Hearings Case No. 85-4308, should not be counted as available for purposes of assessing the need for the Medical Personnel Pool or DeSoto Memorial proposals.) In addition, three home health agencies with home offices outside District VIII in Manatee County hold licenses enabling them to operate within District VIII. But one of them Visiting Nurses Association of Hardee County ceased operations in District VIII (DeSoto County) approximately six months before the final hearing in this case. These home health agencies are referred to in HRS proposed rule 10-5.11(14) as multi-district agencies. They also are commonly referred to as cross-over agencies. The total number of available home health agencies in District VIII is 22. This total excludes Home Care Services of Hendry County, Visiting Nurses Association of Hardee County and Home Care of Glades and Hendry Counties. Medical Personnel Pool and DeSoto Memorial did not prove that any other of the licensed and approved home health agencies in District VIII should be excluded from the total number of available home health agencies. Five of the 22 available home health agencies are in Lee County. Four of the available home health agencies are in Charlotte County. Three additional home health agencies have home offices in other counties, but are licensed to operate in Charlotte County. Three of the 22 available home health agencies have home offices in Collier County. In addition, three have home offices in other counties, but are licensed to operate in Collier County. One of the 22 available home health agencies has a home office in Arcadia in DeSoto County. In addition, another home health agency is licensed to operate in DeSoto County, but has its home office in another county. Neither Medical Personnel Pool nor DeSoto Memorial proved or disproved the quality of care, efficiency, appropriateness or extent of utilization of the 22 available home health agencies in District VIII. The accessibility and adequacy of the 22 available home health agencies in District VIII actually is addressed by an analysis of the need for the Medical Personnel Pool and DeSoto Memorial proposals. See Findings Of Fact 27 through 70 below. Analysis of Need for the Proposed Home Health Agencies. (i) HRS proposed Rule 10-5.11(14), Florida Administrative Code. The basic approach of the invalid HRS proposed Rule 10- 5.11(14) was to apply historical use rates for specific age cohorts of the population to the projected population within those age cohorts in a given district in a future year, or "planning horizon." This widely-accepted type of approach to projecting need is referred to by health planners as a "utilization-based methodology." There were five steps included in the methodology of the proposed rule. The first step was to project the number of elderly Medicare recipients who would utilize home health services. This number is denoted by the letter "A". To calculate "A", one multiplied the projected population aged 65 and over in the district by a constant which was intended to represent a percentage of the elderly who have historically used home health services. The proposed rule included a number, or a constant, to be used for this purpose. The value of the constant presented in the proposed rule, .0496, purportedly represented the percentage of elderly Medicare enrollees who actually used home health services in Florida in 1982. This percentage for'.. 1982 was misstated in the proposed rule and should have been 5.06% (.0506), rather than 4.96% (.0496). HRS has now acknowledged this error and agrees that .0506 (5.06%) was the appropriate 1982 age 65-and-over utilization rate. According to the proposed rule, then, to calculate the number of elderly people projected to need home health services, the population aged 65 years-and-over two years in the future was to be multiplied by the 1982 use rate for this group, .0506 (5.06%). The second step in the methodology of the proposed rule was to project the number of disabled under-65 Medicare recipients ("B") who will utilize home health services. To calculate "B", one first multiplied the projected district population two years in the future under the age of 65 by the percentage of that population estimated to be disabled. In the proposed rule, HRS used constants for both the proportion of the population under 65 years of age which was projected to be disabled (.01755), and the portion of those disabled persons who would be expected to use home health services (.0297). As in the first step, these values were taken from 1982 Medicare utilization data for Florida. Thus, in the second step of the formula under the proposed rule, the number of under-65 disabled persons who were projected to need Medicare home health services equaled the number of persons in the district under the age of 65 two years in the future, multiplied by .017555, the result of which was then multiplied by .0297. The third step of the proposed rule's formula projected the number of Medicare home health visits (as opposed to persons) needed in the district two years in the future, by multiplying the total projected number of people needing Medicare home health services by the historical number of average visits per person for Florida in 1982. The average number of visits per person in 1982 was 31.5, also derived from 1982 Medicare data. The total number of home health visits was projected as being equal to "A" plus "B", or the sum of the first two steps, multiplied by 31.5. The fourth step of the formula of the proposed rule calculated the number of needed Medicare home health agencies, given the number of projected Medicare visits calculated in the third step. The gross number of Medicare agencies projected as needed in the planning horizon ("G") was calculated by dividing the number of projected total Medicare visits per agency per year ("S"). "S" was determined through another calculation, and varied, depending upon the total number of projected Medicare visits in the district and the calendar year in which a CON application was filed. "S" was obtained by adding to a presumed base agency size of 9,000 Medicare visits per year, an additional adjusted number of visits (the so-called "additive factor"). This adjusted number of visits equaled the total projected number of Medicare visits divided by 9,000, then multiplied by what was called the "C" factor. The "C" factor varied with the calendar year in which an application was filed. For applications which were filed in 1984 and 1985, "C" was equal to 270. For applications to be filed in 1986 and 1987, "C" was equal to 225. For applications to be filed in 1988 or later, "C" was equal to 180. If the calculation of "S" resulted in a number which was larger than 21,000, then "S" was to be assigned a value equal to 21,000. This meant that the divisor "S", or the number of visits an agency was expected to provide, would range from 9,000 visits to 21,000 visits. Thus, districts would have different values for "S", and even within a district, the value of "S" would vary from year to year. The fifth and last step of the formula was to calculate the net number of Medicare-certified home health agencies needed ("N"). "N" was calculated by subtracting the number of "licensed and approved" agencies currently located in a district from the gross number of agencies projected as needed in the planning horizon, "G". The number of "licensed and approved" agencies, denoted as "L" in the proposed rule, included a count of all licensed agencies located within a district and all approved agencies that are not yet licensed. As of the date of the final hearing in this case, HRS was applying proposed Rule 10-5.11(14) to its review of home health agency CON applications, as though the rule were in full force and effect, with several significant modifications to the express language of the proposed rule. First, as noted above, HRS had agreed that its use of the value .0496 in Factor "A" of the published proposed rule was the result of an erroneous reading of the published 1982 Health Care Financing Administration ("HCFA") home health utilization rates for over-65 persons in Florida, and that the correct 1982 value was .0506. Second, HRS had abandoned the requirement of the published version of the proposed rule that decimal values of "G" always be rounded down to the next lower whole number and had modified its application of the proposed rule to conventional rounding of value "G", i.e., decimal values of .5 or greater were rounded up to the next larger whole number, and decimal values less than .5 were rounded down to the next lower whole number. In applying proposed Rule 10-5.11(14) in its review of Medical Personnel Pool's CON application, HRS included in the inventory of licensed and approved agencies ("L") three (3) agencies located in other districts, which although licensed to serve individual counties in District VIII, were not licensed to serve any of the counties in Medical Personnel Pool's proposed service area, and which had not yet applied for nor been approved to set up new agencies or sub-units in District XI under the now defunct paragraph (e) of the former proposed rule. The "additive factor" is the term which has been used to refer to everything appearing to the right of the first appearance of the figure 9,000 in the definition of the divisor, factor "S," of the methodology found in paragraph (a) of the former proposed rule. As previously discussed, the purpose of the divisor in the formula of paragraph (a) of the former proposed rule was to convert the expected number of Medicare visits needed in the appropriate planning horizon to a gross number of Medicare home health agencies needed. In order to accomplish this, an agency size of some sort had to be used, defined by number of visits, for the denominator in the formula. One intent of the value in the denominator in the methodology of the former proposed rule was to represent an optimal minimum efficient economic operating size. The premise for this concept of optimal minimum efficient economic operating size was a health planning concept that below a certain minimum range of agency size in number of visits, fixed start-up costs result in a relatively high cost per visit ratio for new small agencies. All of the available data indicates that there is a range of "economies of scale" in costs per visit for new start-up home health agencies, breaking somewhere between 6,000 and 9,000 or 10,000 visits. Once this breaking point is reached, the relatively small level of fixed costs in home health level off, and the data do not show any further significant points of economies of scale. Specifically, a distinction must be drawn between the theoretical economies of scale argument and what the actual available reported data show to be the experience of the home health industry in Florida. Using a sample of over 85% of the home health agencies in Florida (all of the agencies cost reporting through the State's Medicare fiscal intermediary), and plotting their actual reported 1984 number of visits and cost per visit, it is clearly seen that there is no predictable relationship between actual reported agency size in visits and actual reported cost per visit. A statistical regression analysis performed on this same data for three years experience, i.e., 1982, 1983 and 1984, confirms this absolute lack of any significant relationship between reported agency size and reported agency cost per visit in Florida's existing Medicare home health agencies. For example, in the most recent reporting year, the largest agency in Hillsborough County also reported the highest cost per visit in Hillsborough County. Further, whatever argument these may be as to economies of scale and start-up costs for a new home health agency, the undisputed evidence is that an existing, fully-staffed, fully- equipped home health agency has all of its necessary patient referral sources in place and functioning. Thus, the economies of scale argument relating to start-up costs of new home health agencies is not applicable to existing agencies. Nevertheless, to accomplish the goals of translating gross number of visits projected as needed in the appropriate planning horizon to gross number of Medicare agencies needed, HRS proposed in the methodology of its former proposed rule to use a denominator of 9,000 visits, inflated by the so-called additive factor in two ways, i.e., (1) by incorporating an additive factor of total Medicare visits in the district, divided by 9,000, and (2) by then multiplying this ratio by the so-called "C" factor, which consists of three different arbitrary values, 3% of 9,000 (270), 2 1/2% of 9,000 (225), and 2% of 9,000 (180), depending on the filing year of the application being reviewed. This entire value was then added to 9,000 visits. The effect of including "MV" divided by 9,000 in the additive factor was to yield a final value for this factor, with or without the "C" multiplier, which varied in size from one HRS Local Health Planning District to any other. This occurred because "MV" would differ from district to district, driven as it was by district population in the given planning horizon. For the same reason, this ratio within the additive factor would also vary from year to year. Absolutely no rationale or purpose has been offered for thus varying the "target agency size" from district to district and year to year. This result of including MV/9,000 in the additive factor is, therefore, totally arbitrary in its own right. As previously noted, the "additive factor" contained its own internal additive factor; a multiplier referred to as "C". The arbitrary values which were substituted for "C" are set forth above. In its first value, "C" caused the methodology of the proposed rule to yield a statewide average district net need under the formula as proposed of only two (2) new agencies, the closest whole value possible to the existing number of Medicare home health agencies as of the date of the proposed rule's publication. The only evidence tending to explain the derivation of "C" is testimony that HRS files contained several computer "runs," each with a different value and showing different net need results, and that the value chosen by HRS for the first two years (270) yielded the overall statewide average district net need which closest approximated the status quo. No evidence was introduced to show how either the values attributed to "C" or the existence of "C" itself were empirically justified or served a valid health planning purpose. Proposed Rule 10-5.11(14) provided for annual updating of the projected population data to be used therein, but froze as "standards" the 1982 Medicare Florida home health agency utilization rates which appeared in factors "A," "B," and "C". More recent use rates, i.e., 1983 values for each of these use rates, are, and have been, readily available. This data, published by HCFA, is released at least annually, and is readily available to anyone requesting it, with a minimum of effort. It is unreasonable not to update these utilization rates to the most recent available data. In addition, there are several specific health planning reasons why refusal to consider the readily available updated 1983 use rates would be unreasonable in this case. First, since at least 1978, when such records became available, HCFA data has shown a steady and consistent trend of increases in all three of these utilization rates, both in Florida and in the nation as a whole. There are several reasons explaining this trend: there have been ever-increasing pressures in the health care delivery system to "deinstitutionalize" patient services, with an emphasis on outpatient and home health services a major part of the reason for this emphasis is budgetary restraints home health services are far less expensive than comparable inpatient services; there has been an increase in the need for home health services for younger populations for things such as post-surgical care; there have been innovative technological developments in home health care, including the so-called hi-tech services which in the recent past, if available at all, were only available in inpatient settings; there has been a demonstrated increased awareness of home health services and their advantages, both in the physician community and among the public at large; and there have also been significant changes and expansions in Medicare reimbursement of home health services which have encouraged increased utilization. The 1982 Medicare utilization reporting period pre- dated the October, 1983, implementation of the Medicare prospective payment system for hospitals, which has been identified as a specific cause of increased home utilization. Furthermore, most of the previously discussed innovative hi-tech home health services were not in use in home health in 1982, and that reporting year's data ignores their effect on home health utilization. The proposed rule, in paragraph (e), provided that home health agencies shall be restricted to providing services within a single departmental district. The proposed rule further provided that any multi-district or cross-over agency should be included in the inventory of the home health agencies in the district into which it crosses over. As reflected in Findings Of Fact 19 and 20 above, multi-district or cross-over agencies should logically be taken into account in determining the adequacy of existing home health agencies to serve the needs of a particular district. Multi-district or cross-over agencies are licensed to operate in some of District VIII and must be presumed to be operating in parts of the district absent a showing that they are not. In this case, the evidence was that one of the three multi-district or cross-over agencies Visiting Nurses Association of Hardee County is not operating in District VIII, but there was no similar evidence as to the other two multi- district or cross-over agencies. Those two should be counted in District VIII's inventory of home health agencies. HRS did not prove by the evidence in this case that proposed Rule 10-5.11(14), if proposed as non-rule policy, is reasonable. (ii.) Quantification of Need. As mentioned, the utilization method of quantifying need for Medicare-certified home health agencies is a reasonable approach. As also mentioned, it is most reasonable and accurate to use the most recent available utilization data for 1983 in quantifying need for Medicare-certified home health agencies. According to the 1983 data: (1) 5.78% of elderly Medicare enrollees receive home health services; (2) 0.058% of the population under 65 receive Medicare home health services and (3) recipients average 33.3 home health visits each. The next element of quantifying need is determining the planning horizon on which the need is to be projected. The evidence in this case was persuasive that it is reasonable to project need two years into the future from the date of the final hearing. The date of the final hearing itself would roughly coincide with a planning horizon two years from the date the applications were deemed complete. This would leave no lead time for start-up. While the evidence was that start-up time is relatively minimal in home health, it cannot be assumed that start-up would begin at or near the time of the final hearing. The Recommended Order has just now been entered, and an additional period of time can be expected to elapse before final agency action. Finally, placing the planning horizon two years from the date of the final hearing is consistent with past agency policy before the decision in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 10 FLW 1983 (Fla. 1st DCA, August 20, 1985); clarified on rehearing, 11 FLW 437 (February 14, 1986). Using the 1983 utilization data, the gross number of visits projected for 1988 can be obtained by multiplying the projected district population of persons 65 years of age or older times the 5.78% utilization rate and adding that number to the product of the projected district population of persons aged O to times 0.058%, the percentage of persons 0 to 64 estimated to be using Medicare home health services. Using this method, the total number of visits projected in District VIII for 1988 is 449,483. Having determined the estimated number of total visits, this number must then be translated into number of home health agencies by dividing the total by a number of visits per home health agency. Because of economies of scale, this number must be at least in the range between 6,000 and 10,000 visits per agency. The evidence is that, beyond the minimum size for a home health agency, there is no causal and predictable relationship between number of visits per agency and the cost; efficiency of a home health agency. Some of the evidence has suggested that total number of visits in a district should therefore be divided by the minimum agency size. But this would change the analysis from the analysis of the need for an additional home health agency to an analysis whether the market could bear an additional home health agency. Whether certificate of need regulation in the area of home health makes sense on the evidence of this case, the rationality of the law in effect must be presumed. Under the law in effect, the analysis must measure the need for an additional home health agency, not the ability of the market to absorb an additional home health agency. See Conclusion Of Law 3 below. Throughout the state, the number of Medicare visits per home health agency varies broadly from the minimum size agency to almost 80,000 visits per year. In District VIII, Redi-care operated in 1984 at 34,641 visits, while another agency in the district operated at only approximately a tenth of those visits. The District VIII average in 1984 was 19,206 per year. Since there are no apparent economies of scale above six to ten thousand visits per year, there is no general optimum size for a home health agency. The volume at which a home health agency can efficiently operate is instead a function of demographics. The size of a home health agency will vary in relationship to the size and composition of the population within reach of the agency and the number of other agencies actively competing for the same market. For this reason, the most appropriate available number to use as the visits per agency per year for planning purposes is the number of visits per year agencies are now making. The only evidence of this nature in the record is the average size of home health agencies in District VIII in 198419,206 visits per year or, approximately, 19,000 visits per year. 449,483 visits divided by 19,000 visits per year results in 23.7 or, rounding, 24 Medicare-certified home health agencies needed in District VIII. As previously discussed, there are for planning purposes 22 licensed and approved Medicare-certified home health agencies in District VIII, resulting in a net need in District VIII in 1988 for 24 minus 22, or 2 Medicare-certified home health agencies. However, the evidence in this case is that Medicare- certified home health agencies are limited by federal regulations and practical considerations to a range of approximately 50 miles and by HRS to the counties of their licensure. (HRS proposed Rule 10-5.11(14), Florida Administrative Code, would have expanded licensees' authority to operate throughout the district, but it has been held invalid and is not in effect.) Therefore, it is not rational for planning purposes to end a home health need analysis at the district level. If, for example, the two agencies needed in District VIII are needed in the southern part of the district, it would serve no health planning purpose to authorize two additional agencies in the northern part of the district. There are two ways of analyzing home health need on a sub-district basis: First, using the utilization method, and secondly, allocating district-wide need by percentage of the elderly population in each sub-district. Under the utilization method, Lee County is projected to require 147,686 Medicare home health visits in 1988. Dividing the total visits by the district average-sized agency (their being no evidence of the average size per agency on a county basis), Lee County would need 7.8 or, rounding, 8 Medicare- certified home health agencies. Since Lee County only has five existing or approved Medicare-certified home health agencies at this time, it has a net need of three agencies. On the other hand, using the same analysis, the Charlotte, Collier and DeSoto Counties have no need projected for 1988. For Charlotte County: 64,735 visits divided by 19,000 per agency per year equals 3.4 or, roughly, three Medicare-certified agencies needed in 1988. Charlotte County now has four Medicare- certified home health agencies with home offices in Charlotte County, and three others are licensed to operate in Charlotte County. Collier County is projected to have 57,909 visits divided by 19,000 visits per agency per year equals a need for three agencies projected for 1988. Collier now has three agencies based in Collier County and three others licensed to operate there. In DeSoto County, only 7,659 visits are projected for 1988. This is less than the average-sized agency in District VIII, but it is assumed that there is a need for one home health agency in DeSoto County in 1988. There is one based in DeSoto County now, and another is authorized to operate there. Multiplying the total district-wide need of 22 Medicare-certified home health agencies projected for 1988 by the pertinent county's percentage of the elderly population of District VIII results in the following allocation: Lee County 32.785% x 22 = 7.2 Collier County 12.77% x 22 = 2.8 Charlotte County 14.54% x 22 = 3.2 DeSoto County 1.67% x 22 = .4 As a result of this sub-district analysis, it becomes apparent that there is a need for at least two additional Medicare-certified home health agencies in Lee County, but there is no quantifiable need elsewhere in District VIII projected for 1988. (iii.) Other Need Considerations. Since 1978, utilization of home health services in Florida has consistently increased in all categories for which utilization rates are kept the number of persons over the age of using home health services, the number and percent of disabled persons under the age of 65 using home health services, and the average number of visits provided per patient per spell of illness. In recent years, there also have been significant innovations and reimbursement changes in health care, both in home health and elsewhere in the health care industry, which have significantly increased the utilization of home health services. In October, 1983, hospitals came under the new Medicare prospective payment system whereby they no longer are reimbursed for services to Medicare patients on a reported cost basis, but rather are reimbursed on a fixed-fee-for-service basis, known as Diagnostic Related Groupings, or "DRGs". Hospitals are now reimbursed a fixed amount for each defined DRG service or procedure, regardless of the costs incurred by the hospitals in delivering that service. The effect of this new reimbursement methodology has been to encourage hospitals to find ways to deliver services at lower costs, and thus maximize reimbursement. One obvious way to accomplish this is to shorten the length of the patient's stay in the hospital. Another is to defer several services, previously performed in an inpatient setting, to home health providers for provision in the patient's home, or on an outpatient basis with subsequent follow-up care in the patient's home. In either event, the experience of the industry has been that since the implementation of DRGs, many patients are being discharged by hospitals sooner, in a sicker or more acute condition, and in greater need of home health services. At the same time, the industry has experienced the recent development of several so-called hi-tech home health services more advanced treatment and care procedures now being widely provided in the home, which a very short time ago were only provided in inpatient settings. These services include such procedures as chemotherapy, hyper-alimentation, and various other forms of indirect tube feeding. In addition, the industry has seen the development of new modernized equipment which has enabled many of these and other advanced procedures to be provided more inexpensively in the home. Complicating matters further, Florida's nursing homes have, for some time now, been operating at very full levels. Often the physician is left with only two choices - very expensive hospitalization or home health care. Some of these other need considerations already have been taken into account in the quantification of need just analyzed. The analysis does not, however, take into account continued increases in utilization after 1983 which, while not exactly speculative, are not certain and are not quantifiable. DeSoto Memorial's proposal for a hospital-based home health agency affords some advantages in enabling DeSoto Memorial to utilize currently under-utilized hospital facilities and services. It also increases the likelihood that patients will benefit from better continuity of care. However, the evidence did not prove or disprove the extent of continuity of care which can now be achieved without the DeSoto Memorial proposal as a result of efforts to coordinate care of patients among the hospital, the existing home health agencies and the physicians. In other words, while continuity of care using existing home health providers may take more effort, there is no evidence that it cannot be provided. Criterion Section 381.494(6)(c)3. (The ability of the applicant to provide quality of care.) The parties have stipulated to the ability of both Medical Personnel Pool and DeSoto Memorial to provide quality care. Both applicants have the ability to provide socalled "hi-tech" home health services such as chemotherapy and indirect tube feeding. As previously mentioned, the DeSoto Memorial proposal will facilitate continuity of care. Criterion Section 381.494(6)(c)8. (The availability of resources, including health manpower, management of personnel, and funds for capital and operating expenditures, for project accomplishment and operation; the effects the project will have on clinical needs of health professional training programs in the service district the extent to which the services will be accessible to schools for health professions in the service district for training purposes if such services are available in a limited number of facilities the availability of alternative uses of such resources for the provision of other health services and the extent to which the proposed services will be accessible to all residents of the service district.) Both Medical Personnel Pool and DeSoto Memorial have available the resources, including health manpower, management personnel, and funds for capital and operating expenditures necessary to accomplish and operate the project. There was no evidence of the effects of either project on clinical needs of health professional training programs. There was no evidence that the services proposed by either Medical Personnel Pool or DeSoto Memorial will be available to schools for health professions in the service district for training purposes, or that such services are available in a limited number of facilities. As proposed home health agencies, both the Medical Personnel Pool and the DeSoto Memorial applications will use resources largely only to extent necessary. Capital investment is relatively minimal, and nurses and other personnel providing home health services to patients can be hired on an hourly basis as needed. To the extent not needed, those resources would be available for the provision of other health services that might be needed. The DeSoto Memorial proposal for a hospital-based home health agency would be particularly capable of using such resources for alternative uses. The Medicare-certified home health services proposed by both Medical Personnel Pool and DeSoto Memorial will be accessible to all residents of the service district within approximately 50 miles of the proposed agencies. As previously mentioned, there is a geographic limit to the economic delivery of home health services from any one agency. However, except for Lee County, all residents of District VIII will have access to Medicare-certified home health services without either of the proposals. There is a demonstrated lack of access to Medicaid reimbursable home health services and to home health services for the indigent. However, those services are not the subject of this proceeding. See Conclusions Of Law 1. Criterion Section 381.494(6)(c)9. (The immediate and long- term financial feasibility of the proposal.) The parties have stipulated to the immediate and long- term financial feasibility of both the Medical Personnel Pool and the DeSoto Memorial proposal. Criterion Section 381.494(6)(c)12. (The probable impact of the proposed project on the costs of providing health services proposed by the applicant, upon consideration of factors including, but not limited to, the effects of competition on the supply of health services being proposed and the improvements or innovations in the financing and delivery of health services, which foster competition and service to promote quality assurance and cost-effectiveness.) As previously mentioned, additional competition in Medicare-certified home health services probably would tend to improve the quality of the services provided, give providers incentive to meet the needs and desires of the patients in the service area and foster innovations in the home health area. As to price competition, there was no evidence that competition in Medicare-certified home health services will have any positive effect on the cost of home health services in the service district. Actually, the evidence was that additional home health agencies would be likely to increase slightly the charges for home health services. These increases would be subject to the Medicare cap which most agencies' charges already are approaching. I. Balanced Consideration of the Criteria. Balancing all the criteria that have been considered as applicable in light of the parties' stipulations, it is found that there is need and sufficient justification to grant the Medical Personnel Pool application, but only as to Lee County. There is no need for or sufficient justification to authorize Medical Personnel Pool to operate in Charlotte or Collier Counties or to grant the DeSoto Memorial application. (If need for Medicare-certified home health agencies could be based upon the needs of Medicaid and indigent patients, the evidence would support the need for both proposals as applied for.)
Recommendation Based on the foregoing Findings Of Fact and Conclusions of Law, it is recommended that Respondent, Department of Health and Rehabilitative Services, enter a final order: (a) granting the application of Petitioner, Personnel Pool of Southwest Florida, Inc., for a certificate of need for Medicare home health services but only for Lee County and only on the conditions (1) that Personnel Pool provide 2% of its total visits to Medicaid patients and one hour of uncompensated visits to indigent patients for every 20 hours of visits to Medicare patients for which it is reimbursed and (2) that it will operate all of its home health services out of the same corporate entity out of which it operates Medicare-certified home health services: (b) denying the Personnel Pool application as to Collier and Charlotte counties; and (c) denying the application of Petitioner, DeSoto Memorial Hospital. RECOMMENDED this 7th day of May, 1986 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1986.
The Issue The issue to be resolved in this proceeding is whether Petitioner, a foster home operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's refusal to renew Petitioner's license.
Findings Of Fact On December 20, 1999, Petitioner applied for renewal of her license to operate a foster care home. The license was due to expire on February 15, 2000. Respondent's investigation of the application was eventually concluded on June 15, 2000. By letter dated August 10, 2000, Petitioner was notified of Respondent's decision that, as a consequence of the Florida abuse report finding that Petitioner had failed to provide adequate food and medical care to children in her care, her home would not be re-licensed as a foster home. At final hearing, Petitioner's testimony established that she did not intend to again operate a foster home. Her desire in requesting a hearing was simply "to clear her good name" from the allegations contained in Florida abuse report number 1999-124723. She further admitted that her personal physician opposed renewal of her license due to Petitioner's heart condition. Petitioner offered copies of medical reports from a medical practitioner as proof that allegations of the abuse report were incorrect. Specifically, it is found that the medical records proffered at best show only that the children were taken to a doctor on specific occasions and does little to rebut the abuse report’s allegations of inadequate food and medical care. Further, testimony of Respondent’s employees at final hearing established that Petitioner’s son, a convicted felon without exemption status, had been residing in the home. Pursuant to applicable statutes, such a resident in the home also prevents re-licensure.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is recommended that a final order be entered confirming the denial of Petitioner’s license to operate a foster home. DONE AND ENTERED this 14th day of November, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2001. COPIES FURNISHED: Ralph McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Stephanie Reeves 1707 Birchwood Circle Apartment 1 Leesburg, Florida 34748 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
The Issue Whether the Agency for Persons with Disabilities (APD) properly denied the application for licensure renewal sought for the group home facility license held by Tracy Court Group Home, owned and operated by V-Agape, LLC.
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habitation centers pursuant to section 20.197 and chapter 393, Florida Statutes. At all times material to this complaint, Respondent held foster or group home facility licenses issued by APD. The current group home license issued for V-Agape, LLC, located at 19103 Tracy Court, Lutz, Florida 33548, is owned by Tonya Nelson, the sole managing member. Respondent has contracted with APD to provide the residents with Medicaid waiver developmental disability residential habitation services. HCSO conducts investigations of reports of abuse, neglect, abandonment, and threats of harm to children on behalf of DCF. Investigations of abuse, neglect, abandonment, and threats of harm are initiated by reported incidents through the Florida Abuse Hotline. Karen Gonzalez is the supervisor of the Specialized Investigating Unit. She supervises the CPIs who perform the abuse hotline investigations. Ms. Gonzalez supervised Robert Hoon and Jennifer Campbell, both CPIs. A report was made to the Florida Abuse Hotline on January 24, 2014, that a minor female resident of Respondent’s Tracy Court Group Home sustained bruising and a red mark on the back of her hand from being struck on her hands by Tonya Nelson. The resident is non-verbal and intellectually disabled. The subsequent investigation by CPI Hoon, on behalf of DCF, was ultimately closed with verified indicators for physical injury upon the minor resident living in the Tracy Court Group Home, but did not identify the caregiver responsible. CPI Hoon reviewed and discussed the investigation with Supervisor Gonzalez before he prepared the Investigative Summary (IS). When conducting investigations, the CPI reviews the prior history of incidents reported on a group home and its owner/operator. In subsection “D. Prior Reports and Service Records Implications for Child Safety,” CPI Hoon reported that: There are prior reports on the facility that include concerns for physical discipline in the foster home and to her o[w]n children. There is a verified report in 2012 for physical injury and the aps [adult perpetrators] where [sic] Tonya Nelson and the aunt as it is unknown who caused the injuries. Ms. Gonzalez testified that prior reports are reviewed in conducting their investigations to determine whether a pattern of concern for the health and safety of the children placed in that home and for the caretakers caring for the children in the home exists. The CPIs utilize DCF Operating Procedure (CFOP) 175-28, Child Maltreatment Index, as a guideline in conducting their investigations. A “verified finding” is made when a preponderance of the credible evidence results in a determination that the specific harm or threat of harm was the result of abuse, abandonment, or neglect. CPI Campbell explained the application of CFOP during an investigation: [I]t . . . breaks down the different maltreatments that are investigated under the umbrella of abuse, neglect, and abandonment, and it provides a guideline for the definitions of what the different maltreatments are, and the different types of supporting evidence and documents that may be needed when supporting a maltreatment when the investigator comes up with the findings. It’s basically a guideline for investigations, because when a report comes in it may not be just one maltreatment, there may be a number of different maltreatments; or an investigator may identify a maltreatment during the course of an investigation, and so this provides a guideline for the investigator. On May 20, 2014, a report was made to the Florida Abuse Hotline about a minor resident of Respondent’s Tracy Court Group Home. An investigation was commenced concerning unexplained bruises observed on the resident, a vulnerable minor. CPI Campbell completed the investigation and prepared the IS. She discussed the verified findings with Supervisor Gonzalez. CPI Campbell is an experienced investigator, having had 11 years of service with HCSO following five years’ experience as a CPI in Michigan. The report of May 20, 2014, was a “Supplemental” report since, according to Supervisor Gonzalez, it came in right after the initial risk sequence. Rather than creating an entire new report, this one became supplemental to the prior one. The IS stated that the resident had a large bruise on her left thigh and bruises on her left arm and the back of her leg. Ms. Nelson was not able to explain how the minor resident sustained the bruises on her leg and arm. CPI Campbell became involved with Ms. Nelson and the investigation of the group home when Supervisor Gonzalez gave her the task of completing the investigation initiated by CPI Krisita Edwards. At the time CPI Campbell took over the investigation, CPI Edwards had been assigned to other duties. CPI Campbell explained that it was not unusual for a second investigator to complete work begun by another since all their notes are kept on a central database known as the Florida Safe Families Network (FSFN), where all contacts are noted, as well as the investigative summary. CPIs Edwards and Campbell collaborated on the investigation in this case. CPI Edwards entered her initial findings in the FSFN, which was picked up and continued by CPI Campbell when she took over the case. The two CPIs have collaborated on other cases in a similar fashion. The initial documentation by CPI Edwards was performed within 48 hours of the call coming into the abuse hotline as required. CPI Campbell’s completion of the report and investigation occurred after she had spoken with CPI Edwards and discussed the matter with Supervisor Gonzalez. The result of the investigation concerning the bruises on the minor resident was that the bruises were “indeterminate for physical abuse” and “indeterminate for supervisory neglect” due to the fact that a specific cause of the injuries could not be determined. Further, since the minor resident had been removed to another group home, the report concluded that there existed no continuing threat to the resident’s well-being. Even though the resident had been removed from the Tracy Court Group Home and, therefore, was not in any danger of being further harmed, CPI Campbell continued to have serious concerns about the care of residents in the group home. She believed that several allegations of the same type of harm were being made in the group home and that they could not ask the resident how she received her injuries since she was non-verbal. Myra Leitold, an APD residential licensing supervisor, had monitored the Tracy Court Group Home for the previous nine and one-half years. On December 28, 2012, she observed that a door lock to the office and bedroom was keyed so that it could be readily opened from the inside which, she believed, created a safety hazard. Between December 2012 and August 2014, the group home was cited for ten violations of Medication Administration Procedures. On one of her visits, in December 2012, Ms. Leitold noted that no current prescription was present for one of the residents, and that the label on the prescription bottle did not match the prescription drugs inside the bottle. Additionally, she found that the accounting for one of the resident’s finances was not current and that the temperature inside the group home was a chilly 65 degrees Fahrenheit. Mitchell Turner, human services program specialist for APD, recorded numerous medication administration violations at the group home. He noted on May 30, 2013, that the medication prescriptions and instructions for the Medical Administration Record (MAR) did not match. On June 18, 2013, he discovered that the wrong dosage of prescription was being given to a resident, and Ms. Nelson admitted this mistake. Mr. Turner grew so concerned about the prescription irregularities that he requested Pamela Lassiter, a medical case management registered nurse, to review the group home. Nurse Lassiter was sent to the home where she discovered and cited the home for three additional prescription violations. Even following Nurse Lassiter’s visit, on another trip to the group home on April 9, 2014, Mr. Turner cited an additional MAR violation. He believed these violations posed a health and safety risk to the residents affected and exhibited a pattern of neglect by Respondent to the health and safety of vulnerable children. During the period when prescription and other violations were noted, on January 11, 2013, Ms. Nelson exceeded the maximum licensed capacity of three in the group home when she accepted a fourth resident. She did not have prior written approval from APD to exceed her licensed capacity of residents. On September 25, 2013, Mr. Turner issued a Notice of Non-Compliance (NNC) because Ms. Nelson again exceeded the licensed capacity for the number of residents in the group home without prior written approval from APD. Mr. Turner expressed his concerns over the repeated violations by Respondent. Ms. Nelson testified that she had received verbal approval for the placements in excess of the home’s licensed capacity from Meisha Stewart, residential placement coordinator for APD, and that on a prior occasion in 2012, she had accepted a resident after receiving verbal approval. This testimony was rebutted by both Geraldine Williams, the former regional operations manager for APD’s Suncoast Region, and Ms. Leitold, who testified she had never known APD to give verbal approval for a placement of a resident in a group home. With the high volume of referrals APD makes to group homes, they cannot operate in a system where verbal placements occur. All placements must be made in writing. When a provider receives a NNC, the provider is required to submit and successfully complete a Corrective Action Plan (CAP). Mr. Turner testified that Ms. Nelson did not submit or successfully complete a CAP for the MAR violations. On January 17, 2013, Ms. Leitold visited the group home and observed the following violations: volatile materials were not stored in approved metal containers and three prescriptions for a resident’s medications were not present. The gasoline, charcoal, and lighter fluid found by Ms. Leitold were required to be stored in approved metal containers. Keeping these materials in the open posed a safety hazard for the minor residents by giving them access to volatile materials. On November 4, 2014, Ms. Nelson sent an email to Meisha Stewart advising her she intended to accept a non-APD client for placement in the Tracy Court Group Home without APD’s prior approval. Ms. Nelson testified that since that same resident had been placed in the Tracy Court Group Home for a six-month period in 2013, she believed she did not need a new approval in 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying V-Agape, LLC, d/b/a Tracy Court Group Home’s application for license renewal. DONE AND ENTERED this 6th day of November, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2015. COPIES FURNISHED: Brian F. McGrail, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Lindsey Ann West, Esquire The Plante Law Group, PLC 806 North Armenia Avenue Tampa, Florida 33609 (eServed) Gerald D. Siebens, Esquire Agency for Persons with Disabilities 1313 North Tampa Street, Suite 515 Tampa, Florida 33602-3328 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The primary issue in this case is whether Respondent, a licensed group home operator, violated several statutes and rules governing such homes and their staffs, with most of the alleged offenses occurring, Petitioner charges, in connection with the accidental death of a resident. If Respondent is found guilty of any disciplinable offenses, then it will be necessary to determine the appropriate penalties for such violation(s).
Findings Of Fact At all times relevant to this action, Respondent Daniel Madistin LLC #1 ("DM1") held a Certificate of License, numbered 091867, which authorized DM1 to operate a group home for the developmentally disabled in West Palm Beach, Florida, for the one-year period from April 1, 2014, through March 31, 2015. DM1 had been licensed as a group home since 2009. DM1's facility (the "Home") could house up to six residents at a time. As a group home licensee, DM1 falls under the regulatory jurisdiction of Petitioner Agency for Persons with Disabilities ("APD"), which issued DM1's initial and annual renewal licenses and periodically inspected the Home. One of the Home's longtime residents was a young man named V.H.-D. This wheelchair-bound, nonverbal resident suffered from a number of medical conditions, including severe cerebral palsy, as a result of which he was unable to care for himself. The Home's staff, therefore, were required, among other things, to feed V.H.-D., whose difficulty swallowing solid foods had caused him to be placed, on doctor's orders, on a diet of puree as a precaution against choking. (V.H.-D.'s family had refused to consent to the placement of a feeding tube.) On the morning of Sunday, October 19, 2014, an employee of DM1, Pharah Murat, fed V.H.-D. his breakfast, as she had done many times since starting to work in the Home in June of 2014. Because V.H.-D. could not talk, he generally manifested satiety by regurgitating food and expelling it from his mouth, at which point the caregiver would clean him up. So, this day, when V.H.-D. began expelling food, Ms. Murat stopped feeding him and wiped his mouth, per the routine. The situation was not routine, however, as Ms. Murat soon realized. V.H.-D. became pale and nonresponsive and looked unwell. Concerned, Ms. Murat immediately called her supervisor, Daniel Madistin, the eponymous principal of DM1. Upon hearing Ms. Murat's description of V.H.-D.'s condition, Mr. Madistin, who was at church with his wife, ended the call and promptly dialed 911. Having thus summoned emergency medical services and law enforcement, Mr. Madistin rushed to the Home. Meantime, Ms. Murat and a fellow employee, Marie Cadet, attended to V.H.-D. as they awaited the arrival of the paramedics. The evidence, which is in conflict, persuades the undersigned to find that, more likely than not, Ms. Murat placed V.H.-D. on the floor and performed cardiopulmonary resuscitation, or tried to, although to what avail cannot be determined. Afterwards, she and Ms. Cadet returned V.H.-D. to his wheelchair and moved him from the dining room to the front door, so that the paramedics would be able to work on him without delay once they appeared, which they did within a matter of minutes. V.H.-D. was removed from the Home and taken by ambulance to the hospital, where he died from asphyxiation due to pulmonary aspiration of food secondary to cerebral palsy. APD contends that V.H.-D. was the victim of "neglect" because (a) Ms. Murat called Mr. Madistin, instead of 911, and (b) the staff failed to (i) recognize that V.H.-D was choking and (ii) handle an emergency situation promptly and intelligently. While there is no dispute that Ms. Murat called Mr. Madistin, there is no debate that she did so immediately upon realizing that V.H.-D. might be in distress, which she observed very quickly. The evidence does not establish whether or not Ms. Murat realized that V.H.-D. was choking, but it does clearly prove that she not only realized something was wrong, but also acted upon that recognition without delay. APD insinuates that by not calling 911 first, Ms. Murat increased the response time of the EMTs, to the detriment of V.H.-D. There is, however, no persuasive evidence that Ms. Murat's actions decreased the likelihood of V.H.-D.'s survival, nor is that a reasonable inference. To the contrary, it is more reasonable to infer, although not necessary to find, that Ms. Murat expedited the delivery of emergency medical services because she could converse in her primary language with Mr. Madistin, whose first language, too, is Creole, enabling the latter, who is fluent in English, to relay the relevant information efficiently to the 911 dispatcher. In addition, it should be mentioned that DM1's policy directed employees to call 911 in an emergency. So, even if Ms. Murat's failure to call 911 first amounted to neglect in this instance, which it did not, there is no basis in the evidence for holding the licensee responsible, for there is no evidence suggesting that DM1 knew or should have known that Ms. Murat would act as she did in a crisis. In any event, the evidence shows, and the undersigned finds, that Ms. Murat and Ms. Cadet acted with reasonable skill and efficiency in this emergency. In making this finding, the undersigned is mindful that direct care staff are not medical providers. Indeed, at the time DM1 hired Ms. Murat, a caregiver needed only an eighth-grade education to meet the minimum academic requirements,1/ and even under the current rule a high school diploma or its equivalent suffices.2/ The point is that it is unreasonable to expect a direct service provider in a group home, when responding to a medical emergency, to meet the standard of care applicable to a doctor, nurse, or EMT. No persuasive evidence in the instant record establishes the appropriate standard of care for direct service providers, but the undersigned is nevertheless able to determine, based on the totality of the circumstances, that the performance of DM1's staff, while probably falling short of heroic, was at least reasonable, and certainly not neglectful. After the EMTs had left for the hospital, Palm Beach County Sheriff's Office ("PBSO") deputies stayed behind at the Home to investigate. One of the officers tried to interview Ms. Murat, but she was reluctant to speak. Ms. Murat and Ms. Cadet are Haitian immigrants whose native tongue is Creole, and once the officers realized this, they called for the assistance of Deputy Vessage, a bilingual PBSO deputy who often serves as a translator in such instances. Deputy Vassage responded to this request and questioned the women in Creole, without incident. APD has alleged that Ms. Murat and Ms. Cadet were not fluent speakers of English and thus were incapable of communicating effectively in the official language of the state of Florida.3/ This allegation was not proved. That Ms. Murat insisted upon using her primary language when speaking with law enforcement officers, who were investigating a fatal event that had just recently occurred in her presence, shows good judgment, not a lack of communication skills. At any rate, the evidence persuades the undersigned to find that both women likely were able to speak English with sufficient proficiency to make themselves understood in ordinary circumstances. More important, however, as will be discussed below, the law does not require that direct service providers such as Ms. Murat and Ms. Cadet be capable of communicating effectively in English, but rather that they be capable of communicating effectively. Needless to say, speaking in English is not the only way to communicate effectively; nor, for that matter, is talking necessary for effective communication. APD investigated the circumstances surrounding the death of V.H.-D., and in so doing reviewed DM1's business records, including the personnel file for Ms. Murat. APD claims that DM1 failed to maintain written evidence of Ms. Murat's qualifications as required by Florida Administrative Code Rule 65G-2.012(5)(b)(1978). This rule was substantially amended in 2014, however, and the recordkeeping requirement was repealed, effective July 1, 2014. See Fla. Admin. Code R. 65G- 2.012 (2014). There is no persuasive evidence in this record to support a finding that DM1 failed to comply with the former version of rule 65G-2.012 while it was in effect.4/ It is undisputed that DM1 did not terminate Ms. Murat's employment, or otherwise discipline her, as a result of V.H.-D.'s death. On January 16, 2015, an APD employee named Sabah Bissainthe made an unscheduled visit to the Home to conduct an inspection. Upon her arrival, she encountered Sinclair Concin, who worked for DM1. Mr. Concin, who was not expecting visitors, called Mrs. Naomi Madistin for guidance when he realized that Ms. Bissainthe was a state employee performing official business. Mr. Concin put Ms. Bissainthe on the phone with Mrs. Madistin, and the two made arrangements for Mrs. Madistin to meet Ms. Bissainthe at the Home as soon as Mrs. Madistin could get there, which she did within an hour. Mrs. Madistin cooperated fully with Ms. Bissainthe. Ms. Bissainthe was not refused entry to the Home or forbidden from inspecting any part of the facility, contrary to APD's allegations. Mr. Concin's primary language is Creole, which Ms. Bissainthe does not speak. APD alleged that Mr. Concin does not speak English, but the evidence fails to prove that charge, which would not, at any rate, be a disciplinable offense, without more. APD further asserted that Mr. Concin is unable to communicate effectively because he did not converse in English with Ms. Bissainthe. The evidence shows, however, that Mr. Concin and Ms. Bissainthe did communicate effectively, notwithstanding that each spoke a different primary language, because Mr. Concin proved capable, in fact, of accomplishing the task when the circumstances required that he accommodate an APD investigator who had appeared unannounced at the doorstep of the Home. On February 18, 2015, an investigator from the Attorney General's office, Paul Valerio, paid an unannounced visit to the Home in connection with a matter unrelated to V.H.-D.'s death. Neither Mr. nor Mrs. Madistin was on-site at the time, so Mr. Valerio called Mr. Madistin to let him know that an official investigation was under way. The two men agreed that Mr. Valerio would meet with Mrs. Madistin at the Home the next day, and that meeting took place as planned. Mrs. Madistin fully cooperated with Mr. Valerio, who completed his investigation without difficulty. The evidence does not establish that Mr. or Mrs. Madistin was unavailable or uncooperative, as APD charged. Ultimate Factual Determinations Neither Ms. Murat nor Ms. Cadet abused, neglected, exploited, or harmed V.H.-D., who received prompt and appropriate medical treatment on the day he died. Moreover, Ms. Murat and Ms. Cadet were mentally competent to perform their duties as direct service providers. The evidence, therefore, does not establish the violations of sections 393.13(3)(a), 393.13(3)(g), and 393.13(4)(c), Florida Statutes; and Florida Administrative Code Rules 65G-2.008(1)(h) and 65G-2.009(1)(d) set forth in Count I of the Administrative Complaint. The evidence failed to establish that Ms. Murat and Ms. Cadet, or either of them, were (i) incapable of demonstrating effective communication or (ii) not mentally competent to perform their jobs as direct service providers. Thus, the violations of rules 65G-2.008(1)(g) and 65G- 2.008(1)(h) alleged in Count II were not proved. The charges brought in Count III of the Administrative Complaint are duplicative of the charges set forth in Count I and fail for the same reasons of fact. The charges in Count IV are based on allegations that DM1 failed to maintain adequate personnel records for Ms. Murat, in violation of outdated provisions Florida Administrative Code Rule 65G-2.012(5)(1978), which expired on July 1, 2014, when a new version of the rule took effect. The evidence failed to show that DM1 violated the former rule at any time during its existence. The charges brought in Count V of the Administrative Complaint are duplicative of the charges set forth in Count II and fail for the same reasons of fact. The allegations of Count VI largely overlap those of Counts I and III, with the additional allegation that DM1 failed to fire Ms. Murat or suspend her employment. While it is true that Ms. Murat was not punished as a result of V.H.-D.'s death, DM1's decision not to take such action does not constitute a disciplinable offense, and the remaining allegations of Count VI fail for the same reasons of fact that doom the charges set forth in Count I. The charges in Count VII are based on allegations that Sinclair Concin (i) was unable to communicate effectively with Sabah Bissainthe and (ii) refused to allow Ms. Bissainthe to enter the Home to conduct an investigation, thereby putting DM1 in violation of rules 65G-2.008(1)(g), 65G-2.008(1)(h), and 65G- 2.0032(3). The evidence showed, however, that Mr. Concin did communicate effectively with Ms. Bissainthe, and that he let her into the Home. Therefore, the charges were not proved. In Count VIII, APD charged DM1 with failure to have a facility operator (manager) on-site or on call at all times, in violation of rule 65G-2.012(1)(a). This charge was based on the allegation that when investigator Paul Valerio arrived at the Home for an unscheduled visit, neither Mr. Madistin nor his wife was in the residence. Mr. Valerio was able immediately to reach Mr. Madistin by phone, however, and make plans to meet with Mrs. Madistin the following day. Thus, the charge set forth in Count VIII was not proved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order finding that Daniel Madistin LLC #1 is not guilty of the offenses charged in the Amended Administrative Complaint. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2015.
Findings Of Fact Respondent Pat McComb is the operator of a group home in Broward County, Florida. The home operated under a license issued to Happy People, Inc. Through some unspecified channel, a report of possible abuse was received and Gloria Taylor, a Human Services Counselor II with DHRS, investigated on May 18, 1984. The investigation consisted of interviews with both former and current clients of the group home. A summary of these interviews is found in Petitioner's Exhibits 2, 3, 5, 8 and 9. The former clients and clients are all mentally retarded with secondary disabilities. The interviews were conducted in a group setting with Taylor addressing leading type questions to the group and the group responding in the negative or affirmative. Two clients were interviewed separately, with one being interviewed away from the group home. At least two of the clients changed their statements regarding whether any abuse had ever occurred. No client stated when or where or how often or how severe the alleged abuse was. Taylor saw no bruises or other physical signs of abuse at the time she interviewed the clients. There had never been any other reports or any medical treatment required for these clients. Taylor's testimony was based solely on what she was told by the clients and former clients. Based upon the written reports prepared by Taylor, Rhonda Miklic prepared and signed a letter revoking the licenses of Pat McComb and Happy People, Inc. The clients were moved from the home. The acts of Miklic in revoking the license are not discretionary. Instead, Miklic is required to revoke the license if a finding of abuse is made by the investigator. Pat McComb denied any knowledge that any client was ever hit with a belt at the facility. Instead, discipline consisted of such things as loss of privileges or having a client stand in the corner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges against Respondent be DISMISSED and that the license of Respondent be reinstated. DONE and ENTERED this 11th day of January, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of January, 1985. COPIES FURNISHED: Harold Braynon, Attorney 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 Mark Perlman, Attorney 1820 E. Hallandale Beach Boulevard Hallandale, Florida 33009 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
