18-002751FL Agency For Persons With Disabilities vs. Miracles House, Inc., Group Home Owned And Operated By Miracles House, Inc., And Felicia Whipple Status: Closed Recommended Order on Monday, September 17, 2018.

Summary: Respondent's failure to adequately supervise a client and action taken under the Medicaid program warranted suspension of license and fine. Charges of neglect not verified by the Department of Children and Families did not constitute violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH

DISABILITIES ,

Petitioner,

vs. Case No. 1 8 - 2751FL

MIRACLES HOUSE, INC. ; AND

FELICIA WHIPPLE , AS OWNER AND

OPERATOR OF MIRACLES HOUSE,

INC., GROUP HOME,

Respondent s .

_______________________________/

RECOMMENDED ORDER

On July 27 , 201 8 , a final hearing was held by video

teleconference at sites in Miami and Tallahassee , Florida,

before F. Scott Boyd, an Administrative Law Judge assigned by

the Division of Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

For Respondent s : Adres Jackson - Whyte, Esquire

10735 Northwest 7th Avenue

Miami, Florida 33168

STATEMENT OF THE ISSUE S

T he issues to be determined are whether Respondent,

Miracles House, Inc. (Respondent or Miracles) , as licensee of

Miracles House, Inc., a group home facility , violated provisions

of section 393.0673 , Florida Statutes (2017) , and administrative

rules, 1 / as alleged in the Administrative Complaint ; and , if so,

what is the appropriate sanction .

PRELIMINARY STATEMENT

On or about April 1 6 , 201 8 , Petitioner Agency for Persons

with Disabilities (Petitioner or A PD ) filed an Administrative

Complaint against Miracles . Miracles disput ed allegations in

the complaint and request ed a hearing pursuant to section

120.57(1) , Florida Statutes . On May 29, 2018 , the case was

referred to DOAH , where it was scheduled for final hearing by

video teleconference 2 / on J uly 27, 201 8 .

Through a j oint Pre - h earing Stipulation , the parties

stipulated to certain facts, which were accepted and are

inc luded among the findings of fact below. Petitioner offered

the testimony of four witnesses: Ms. Rosa Llaguno, an

operations management consultant for APD ; Mr. Kwame Lumumba , a

contracted waiver support coordinator; Ms. Leonaise Loriston,

a nother support coordinator ; and , on rebuttal, Mr. Tom Rice, a

program a dministrator at APD. A n earlier order of APD

terminating a Medicaid Waiver Services Agreement , Felicia

Whipple, as Owner/Operator of Miracles House, Inc. v. Agency for

Persons with Disabilities , Case No. 17 - 6025FL (Fla. DOAH May 23 ,

20 18 ; Fla. APD J ul y 1 2 , 20 1 8), was officially recognized upon

motion by Petitioner, without objection from Respondent. 3/

Petitioner offered 22 exhibits , P - 1 through P - 22, all of

which were admitted . Petitioner ' s Exhibit P - 22, a memorandum

entitled " Summary of Justification for Dismissal " pertaining to

APD ' s dismissal from employment of Ms. Ruby Joyce Pace, a former

part - time l icensing and m onitoring s pecialist, was late - filed ,

as authorized at the hearing .

Respondent presented the testimony of Ms. Felicia Whipple ,

a member of the b oard of d irectors of Miracles and the on - site

manager of the group home , and over objection, that of

Mr. Lumumba and Ms. Pace . Respondent offered six exhibits, R - 1

through R - 6, all of which were admitted.

The two - volume Transcript of the proceeding was filed with

DOAH on August 15 , 2018 . B oth parties timely submit ted proposed

recommended orders , which were considered .

FINDINGS OF FACT

1. APD is responsible for regulating the licensing and

operation of group home facilities in the state of Florida.

APD ' s clients include vulnerable individuals with developmental

disabilities attributed to autism, cerebral palsy, intellectual

disabilities, Phelan - McDermid syndrome, Prader - Willi syndrome ,

or spina bifida.

2 . APD ' s c lients can choose to live in an instituti onal

setting, group home, or independently . A client is assisted in

this choice by a residential placement coordinator . A group

home is a licensed facility providing a living arrangement

similar to a family setting. It is the provider ' s

responsibility to provide not only room and board but also

safety, transportation, assistance with the activities of daily

living, and to attempt to provide all residential habilitation

services at the level need ed by the client , as established by

the cl ient with a waiver support coordinator.

3 . A waiver support coordinator is an independent

contractor for APD who acts as a case manager and is responsible

for coordinat ing the services provided to a client.

4 . Support plans are prepared and submitted t o APD by a

client ' s waiver support coordinator. A support plan is a

" snapshot " of a client ' s life. It includes a summary of events

and activities that have occurred throughout the year, including

hospitalizations, medications, and the client ' s goals .

5 . T he resources and capabilities available to a client

and his support givers are not always sufficient to meet all of

the client ' s needs . The support plan is implemented to maximize

the attainment of habilitati ve goals. The support plan is

periodically reviewed to assess progress toward habilitative and

medical objectives and revised annually after consultation with

the client.

6 . Each client is assigned a level of care code that

relates to payment made to the group home on the client ' s

behalf. As its name suggests, t here is some correlation between

the level of care code that is assigned and the level of care to

be given by the provider , but because additional services may be

provided by other individuals and resources, the assigned level

of care does not necessarily reflect all needs and services

necessary for , or being provided to , the client.

7 . If a group home believes that it cannot provide the

required residential habilitation services or meet its

responsibilities with respect to a particular c lient, it can

make this known to the waiver support coordinator. Adjustments

are periodically made to the support plan, including the level

of care code. If adjustments sufficient to address the

provider ' s concerns are not made, a group home may request that

a client be placed in another facility.

8 . APD issued license number 11 - 1088 - GH to Miracles

for the purpose of operating a group home located at

113211 N orthwest 26th Court, Miami, F lorida.

9. Ms. Whipple is a corporate officer of Miracles and the

on - site manager of its group home.

10 . There was no evidence introduced indicating that

Miracles had previously received discipline based upon its group

home license.

C lient R.H.

11 . At all times material to this case, Client R.H. was a

resident of Mir acles ' group home, where he ha s lived for several

years. Client R.H. has an intellectual disability .

12 . Mr. Lumumba was a contracted waiver support

coordinator working with APD. He began work in this capacity in

July of 2016 and was assigned to Client R.H. at that time.

Mr. Lumumba prepared support plans and many incident reports for

Client R.H. after that date. Incident reports prior to

Mr. Lumumba ' s service were also admitted into evidence.

13 . Successive support plans repeat much of the nar rative

from prior plans, and because only selected plans were

introduced into evidence, it is difficult to determine exactly

when many of the additions or entries were made. Client R.H. is

reported as having suicidal thoughts , and it is noted that when

he is under the influence of drugs , he requires support and

direction to be safe. He is described as needing reminders,

instruction, redirection, and support to avoid danger and to

remain healthy and safe. N otations in the support plans and

numerous incident reports d ocument a distinct pattern of

behaviors by Client R.H.

14 . In an incident report dated January 26, 2015, it was

reported that Client R.H. became agitated, left the group home

alone, and walked to the Mental Health Center loc ated at

N orthwest 27 th Avenue and 151st Street. He was later

transported by the Mental H ealth Center staff to Jackson

Memorial Behavioral Health Unit and admitted.

15 . In an incident report dated February 11, 2015, it was

reported that Client R.H. became agitated and left the group

home to go to the store , refusing to be accompanied by staff.

He later presented himself at North Shore Medical Center where

he was admitted to the Crisis Stabilization Unit.

16 . In an incident report dated February 1 7 , 2015, it was

reported that Client R.H. visited h is mother, got into an

argument with her, left her home , and went to Memorial Regional

Hollywood E mergency Room (ER) . He was later discharged in the

care of Miracles ' group home staff.

17 . In an incident report dated March 30, 2015, it was

reported that Client R.H. became a r gumentative and left the

group home unaccompanied under the pretext of going to the

nearby corner store. He traveled to the North Shore Medical

C enter ER and was admitted to the Behavioral He alth Unit. He

was discharged on March 25, 2015 , and returned to Miracles by

hospital staff.

18 . A July 1 9 , 2015, update to the Client R .H. ' s support

plan indicates that C lient R.H. reported that he was not abused

at the Miracles ' group home , and that he fe lt safe and want ed to

stay there.

1 9. In an incident report dated August 14, 2015, it was

reported that Client R.H. left the group home and went to t h e

North Shore Medical Center ER, where he was admitted as a

psychiatric patient. The group home was i nformed he would be

kept for 72 hours and then discharged.

20. In an incident report dated August 18, 2015, it was

reported that Client R.H. " eloped " from the group home. He

later made contact with his mother, began acting in bizarre

ways , and said he ne eded drugs. He ran into the street

shouting, began to undress, and lay down in front of cars. He

was taken to Aventura Hospital and admitted as a psychiatric

patient.

21 . A September 21, 2015, update to the support plan

re flects that C lient R.H. ha d mo ved out of the Miracles group

home to stay with his sister.

22 . In September of 2015, Client R.H. was removed from

Miracles at Dr. Whipple ' s request , made 30 days earlier,

according to Mr. Lumumba .

23 . A December 14, 2015 , entry in the support plan

indicates that C lient R.H. went to jail in October 2015 for

trespassing and petty theft. When he was released on

December 6, 2015, he asked to return to Miracles ' group home.

24 . The support coordinator was unable to place Client

R.H. in another group h ome , and Miracles ' group home was

requested to take him back, which it did.

25 . In an incident report dated February 12 , 201 6 , it was

reported that Client R.H. became agitated, argumentative, and

uncontrollable . He walked to the street, pulled down his p ants,

screamed, and began to roll around in the street. Police were

called , and he was arrested and transported to the North Shore

Medical Center.

26 . In an incident report dated March 9, 2016, it was

reported that Client R.H. was verbally and physically out of

control. He went to the street in front of the house, fell to

the ground, and began rolling around. He could not be

physically restrained or verbally redirected. The police were

called , and he was restrained and taken to North Shore Medical

Center where he was admitted for psychiatric treatment.

27 . In an incident report dated March 17, 2016, it was

reported that police arrived at the facili ty and arrested Client

R.H. for a 2014 charge of stealing church equipment.

28 . During the annual support plan meeting on June 1,

2016, C lient R.H. indicated that he still felt comfortable at

the group home and said that " Ms. Felicia " ( Whipple ) was like a

mother to him. Client R.H. indicated he had been going to

church with her every Sunday since he returned to the group home

in December.

2 9. The July 1, 2016, support plan prepared by Mr. Lumumba

suggested that the rate for client R.H. be changed from minimal

to moderate and stated :

[Client R.H.] requires 24 hours ' supervision

to ensure health and safety as he suffers

from insomnia, seizures, psychosis and mood

disorder, Bipolar, depression, and drug

addictions. The approval of this services

request will ensure that [Client R.H.]

receives the support that he needs to

achieve his goal and maintain a healthy life

style.

30 . The July 1, 2016, support plan also noted :

Consumer has had history of abuse in the

past when he was living with his mother. He

was abused by mother ' s boyfriend. However

since he has been at Mi racle House, there

was an abuse allegation made by [ C lient

R.H . ' s ] mother , however it was investigated

and they have find that the mother was the

one who initiated the allegation . There was

no foundation on those allegations. No

history of abuse or negle ct that has been

documented in his records.

Mr. Lumumba testified that the notations in the support plans

that Client R.H. required 24 - hour supervision were

" recommendations " as opposed to " requirements. "

31 . In an incident report dated July 13, 2016, it was

reported that Client R.H. went to his mother ' s housing complex

unannounced, where security was unable to reach his mother , and

he was denied access. He became agitated, verbally aggressive,

and out of control . The police were called , and he was t aken to

Hialeah Hospital.

32 . In an incident report dated July 23, 2016, it was

reported that Client R.H. left the group home without stating

where he was going . He failed to return to the group home

overnight. His mother called the group home to inform staff

that he had been arrested after police approached him and found

crack cocaine in his possession.

33 . A s upport p lan update dated December 1, 2016,

indicates that Miracles requested a change from " minimal " to

" moderate " behavioral focus to provide a dditional services to

Client R.H.

34 . In an incident report dated December 5, 2016, it was

reported that Client R.H. was verbally abusive, out of control

and agitated, screaming and c u rsing staff , and running in the

street. The report states that p oli ce were called , and he was

transported to North Shore Medical Center 's c risis u nit. He was

discharged from North Shore Medical Center and returned to the

group home on December 7, 2016.

35 . In an incident report dated December 28, 2016 , it was

reported that Client R.H. went to his mother ' s housing complex

unannounced, where security was unable to reach his mother , and

he was denied access. He became agitated, verbally aggressive,

and out of control. The police were called , and he was taken to

Hialeah H ospital.

36 . In an incident report dated February 25, 201 7 , it was

reported that Client R.H. informed staff at about 10:00 p . m .

that he was going to buy cigarettes from the corner store. He

did not return and called the group home from the jail to report

that he had been stopped by police, searched, and arrested for

possession of crack cocaine.

37 . In an incident report dated March 27, 2017, it was

reported that Client R.H. told staff he was going to a store to

buy cigarettes. He did not return and wa s assumed to be at his

mother ' s house. His mother called late in the afternoon to

report that he had gone to the North Shore Medical Center ER and

been admitted to the crisis unit.

38 . Ms. Whipple testified that in March of 2017, C lient

R.H. ' s level of care code was changed to Extensive 1.

3 9. In an incident report dated April 6, 2017, it was

reported that Client R.H. became agitated, combative, and

threatening . Staff was unable to de - escalate his behaviors.

Police were called , and he was taken to North Shore Medical

Center.

40 . In an incident report dated April 17, 2017, it was

reported that Client R.H. went to visit his mother on Easter

morning. His mother called in late afternoon to report that he

had gone to North S hore Medical Center ER and been admitted to

the crisis unit.

41 . In an incident report dated April 26, 2017, it was

reported that Client R.H. left the group home in the afternoon

for cigarettes. He did not return. His mother called at

10:30 p . m . to report that he had called her from Palmetto

General Hospital where the police had taken him.

42 . In an incident report dated May 7, 2017, it was

reported that Client R.H. left the group home for cigarettes but

walked to the J ackson M emorial H ospital m ental health unit

instead, where he was admitted.

43 . In an incident report dated May 17, 2017, it was

reported that Client R.H. left the group home saying he needed

cigarettes from the store. He later called his mother to report

that he had been picked up by the police for burglary.

44 . In an " annual summary " entry in the support plan, it

was noted, in relevant part:

[Client R.H.] has not make much progress

this year. He has been in and out of Crisis

and has been Backer Acted too many times and

at the time that I ' m writing this Support

plan, [Client R.H.] is an crisis since

May 17 - 2017. [Client R.H.] needs another

supportive alte rnative program to

rehabilitate him for his constant going to

crisis. He need to be a program where he

can be monitored and with a restricted rules

and regulation and Medical intervention or

his constant substance issues.

45 . In an incident report date d May 28, 2017, it was

reported that Client R.H. left the group home to go to his

mother ' s home on May 27, 2017, and did not return as expected.

He called the group home on May 28, 2017 , and said he was at

Jackson Memorial Hospital in the crisis unit. He was released

on May 29, 2017.

46 . In an incident report dated June 5, 2017, it was

reported that Client R.H. left the group home to go to the store

the previous day and failed to return. His mother called to

report that he had bee n arrested for brea k ing and entering and

stealing merchandise from someone ' s home.

47 . Following the 2017 support plan meeting, in which the

number of incident reports and alternatives to address Client

R.H. ' s drug issues were discussed, t he July 1, 2017, support

plan stated that " [Client R.H.] has been unpredictable and it

require a lot of man power to really keep [Client R.H.] living

at Miracles House, the group home is asking the Behavior analyst

to have [Client R.H.] level of care has been approved to change

from M oderate to Extensive Behavior focus [] 1. " Mr. Lumumba

noted that no abuse or neglect had been reported since he began

working with Client R.H. in 2015.

48 . In an incident report dated August 5, 2017, it was

reported that Client R.H. became verbally agit ated and

physically aggressive with medical staff while at an appointment

at a mental health provider. The report states that police were

called , and Client R . H. was " taken under Baker Act. "

4 9. In an incident report dated August 14, 2017, it was

reporte d that Client R.H. left the group home for cigarettes.

He called later to say that he had checked himself in at Jackson

Memorial Hospital ER.

50 . In an incident report dated November 29, 2017 , it was

reported that Client R.H. left the group home to purc hase

cigarettes a nd did not return. His mother called to report that

he had been arrested for property theft.

51 . In an incident report dated January 27, 201 8 , it was

reported that Client R.H. became agitated and said he wanted to

go to the crisis unit. He called the police , and when they

arrived , he was outside running up and down in front of the home

and saying he wanted to go to the hospital . He was taken to

North Shore Medical Center Crisis Unit.

52 . In an incident report dated February 12, 2018, it was

reported that Client R.H. began screaming uncontrollably. He

became verbally aggressive, ran outside the facility, said he

wanted to kill him s elf , and asked for the police to be called.

After unsuccessful attempts to de - escalate the situation, pol ice

were called , and he was taken to North Shore Medical Center ' s

c risis u nit.

53 . In an incident report dated March 26, 2018, it was

reported that Client R.H. left to get items from the corner

store and did not return. North Shore Medical Center called to

say he had arrived there. He was admitted.

54 . In an incident report dated May 30, 2018, it was

reported that Client R.H. left the group home to get items from

the store. He called in the afternoon saying he had gone to

J ackson M emorial H ospital E R a nd been admitted into the c risis

u nit.

55 . In an incident report dated June 2, 2018, it was

reported that Client R.H. went to his mother ' s home for a visit,

where he initiated an altercation with his mother. He was taken

to the North Shore Medical Center Crisis Unit.

56 . In an incident report dated June 12, 2018, it was

reported that Client R.H. left the group home . His mother later

advised that he had walked to Jackson North and checked himself

into the Crisis Unit.

57 . In an incident report dated J une 26, 2018, it was

reported that Client R.H. left the group home to go to the

store. He wandered in to North S hore Medical Center and stated

he was n o t feeling well . He was admitted as a medical patient.

58 . Ms. Whipple testified that Client R.H. was a competent

adult and that she was legally unable to restrain him. S he

testified that he always asked for permission to leave . But

when they told him he could not go , she testified, he would get

mad and storm out the door anyway.

5 9. Ms. Whipple recog nized that Client R.H. required a

great deal of supervision , and she requested that his level of

care code be increased, so that she would be compensated in part

for her increased responsibilities, but she testified that she

was never focused that much on the amount of money she was

receiving .

60 . Ms. Whipple testified that she trained her staff to

redirect Client R.H. ' s behaviors to ensure that he would not run

off. She stated that an E xtensive 1 level meant that he should

be closely watched , and that is what the staff at Miracles '

group home was trained to do.

61 . Mr. Lumumba testified that he had tried to place

Client R.H. in other group homes, but that Miracles ' group home

was the only place that he knew C lient R.H. would survive.

62 . Th e notations in these incident report s and support

plan s strongly support Mr. Lumumba ' s sentiment that Client R.H.

" needs another supportive alternative program to rehabilitate

him for his constant going to crisis . "

63 . APD did not clearly show that the sup port plan ' s

statement that Client R.H. " requires 24 hours ' supervision "

created a legal obligation for Miracles to literally provide

constant supervision.

64 . APD did clearly and convincingly show that Miracles

failed to facilitate the implementation of Client R.H. ' s support

plan, because, taken as a whole , it obviously required a very

high level of supervision that Miracles could not, or did not ,

provide.

65 . APD does not argue, and there was no evidence to show,

that Client R.H . ' s dignity was infringed, that his right to

privacy was violated, or that he was subjected to inhumane care,

harm, unnecessary physical, chemical or mechanical restraint,

isolation, or excessive medication.

66 . There was no evidence that the Department o f Children

and Families ( DCF ) verified that Miracles was responsible for

any abuse, neglect, or exploitation of Client R.H. The record

contains evidence o f a single DCF investigation into allegations

of maltreatment and inadequate supervision, opened on

N ovember 30, 2017, and closed on January 22, 2018. That

investigation concluded that the allegations were not

substantiated, that no intervention services or placement

outside the home was needed, and that Client R.H. ' s needs were

being met.

67 . There was no compelling evidence to show that Client

R.H. was subjected to abuse or exploitation by Miracles while at

the group home.

Client J.B.

68 . Client J.B. has an intellectual disability and lived

at Miracle s ' group home from May until December of 2017.

6 9. In an incident report filed by Ms. Loriston dated

December 14, 2017, it was reported , in relevant part , that :

On 12/14/17 at 6:15 pm wsc received a phone

call from Ms. Felicia Whipple s tating that

she threw the consumer ' s belonging in the

front yard as she is no longer welcome to

her group home. Ms. Whipple also stated

that [Client J.B.] is on the way home from

her part - time job , she contacted [Client

J.B.] to let her know of her belongings be in

in the front yard. [Client J.B.] contacted

law enforce ment because she feared for her

safety, WSC immediately was able to find an

emergency accommodation at Paradise Gaine

Group Home.

70 . While she testified that her report was accurate,

Ms. Loriston descr ibed the events a bit differently at hearing .

She testified that Ms. Whipple called her to say that Client

J.B. could no longer come back to the group home and that her

belongings would be waiting for her i n front of the door . She

specifically testified that Ms. Whipple did not tell her that

she threw Client J.B . ' s belongings in the front yard , but rather

told her that they were at the front door. Ms. Loriston

testified that when she arrived at Miracles ' group home , she did

not see the belongings, that the incident was over, and the

police were gone.

71 . In an incident report filed by Ms. Whipple , dated

December 16, 2017, it was reported that :

Consumer receives her Social Security

Disability Check and she is currently

employed at M ACY ' s. From these funds she

refused to pay R oom and B oard and r efused to

move from the facility. Following a

confrontation requesting payment, she left

the facility and returned later with 2 cars

loaded with family and associates to the

facility to threaten the owner and the

facility. Police were called and APD,

R es idential Services Coordinator, Carey

Dashif. He along with the WSC coordinated

the transition of consumer to a nother group

home in the interest of safety for Miracles

House residents and staff.

72 . Ms. Loriston ' s account of events was less than clear

and convincing due to the discrepancies between her statement in

the incident report and her testimony at hearing. She did not

actually see any of the events of that evening and did not

remember distinctly the exact admissions of Ms. Whipple , the

critical competent evidence in the case . She was consistent in

her testimony that Ms. Whipple admitted she had moved C lient

J.B. ' s belongings . Her remaining testimony was largely hearsay.

73 . While Ms. Whipple ' s account of events was less than

credible, it was not her burden to prove what happened.

74 . Ms. Llaguno testified that the proper procedure to

terminate services to Client J.B. would have been for Miracles

to send a 30 - day notice terminating the placement. Ms. Loriston

similarly testified that this was also her understanding.

Remarkably, n o APD rule establishing this policy was recognized

or identified at hearing, however. Neither w ere Miracles '

written criteria or procedures for termination of residenti al

services introduced . Though Ms. Loriston ' s testimony that she

had to immediately find other housing for Client J.B. is

credited, violation of APD rules was not clearly shown.

75 . APD did not show that Miracles failed to have written

criteria and proce dures for termination in place or that they

were not consistent with Florida Administrative Code

Chapter 65G - 3.

Medicaid Action

76 . As stipulated by the parties, in July of 2017, the

Agency for Health Care Administration took action against

Miracles by terminating its Medicaid provider number.

77 . A s stipulated by the parties, Miracles lost its

Medicaid provider authorization, and has lost the right to

furnish Medicaid services and receive payment from M edicaid in

Florida.

78 . No evidence as to the ba s is for, or purposes of, the

Medicaid termination was introduced.

7 9. There was no evidence that M iracles previously had its

license to operate a residential facility revoked by APD, DCF,

or the Agency for Health Care Administration.

C ONCLUSIONS OF LAW

80 . DOAH has jurisdiction over the parties and subject

matter of this case pursuant to sections 120.569 and 120.57(1) ,

Florida Statutes (201 8 ) .

81 . Petitioner is responsible for regulating the licensing

and operation of group home facilities pursuant to section

20.1 9 7 and chapter 393, Florida Statutes.

82 . P etitioner seeks to take action against Respondent ' s

group home license pursuant to section 393.0673 . In a

proceeding to impose discipline against a license , P etitioner

bears the burden to prove the allegations in the Administr a tive

Complaint by clear and convincing evidence. § 120.57(1)(k),

Fla. Stat.; Dep ' t of Banking & Fin. v. Osborne Stern & Co . , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

83 . The c lear and convincing standard require s that :

[T] he evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

establis hed.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

84 . The Administrative Complaint cites section 393.0673,

whi c h a t the time of the alleged offenses, p rovided , in relevant

part:

(1) The agency may revoke or suspend a

license or impose an administrative fine,

not to exceed $1,000 per violation per day,

if:

(a) The licensee has:

* * *

2. Had prior action taken against it under

the Medicaid or Medicare program; or

3. Failed to comply with the applicable

requirements of this chapter or rules

applicable to the licensee;

While the Administrative Complaint also alleged a violation of

s ection 393.0673( 2)(a)4 . ( relating to prior revocation of a

residential facility license by the agency, DCF , or the Agency

for Health Care Administration ) , it is clear from the statutory

language that this provision is not applicable to an

Administrative Complaint, but only to denial of applications for

licensure . 4 /

Count I

85 . In C ount I, Petitioner asserts that Client R . H . ' s

Support Plan stated that he " requires 24 - hour supervision " that

was not provided by Respondent. Petitioner asserts that Client

R . H . should never have been allowed to leave the group home

without someone superv ising, but that Respondent allowed him to

freely leave the group home. Petitioner asserts that Respondent

did not take responsibility to ensure Client R . H . ' s health,

safety , and welfare.

86 . Petitioner alleges that these act ions violat ed

portions of Florida Administrative Code Rule 65G - 2.009(1) :

(1) MINIMUM STANDARDS. Residential

facility services shall ensure the health

and safety of the residents and shall also

address the provision of appropriate

physical care and supervision.

(a) Each facility shall:

1. Facilitate the implementation of client

support plans, behavior plans, and any other

directions from medical or health care

professionals as applicable .

* * *

(d) The facility shall adhere to and

protect resident rights and freedoms in

accordance with the Bill of Rights of

Persons with Developmental Disabilities, as

provided in Section 393.13, F.S., Violations

of Section 393.13(3)(a), F.S., relating to

humane care, abuse, sexual abuse, neglect,

or exploitation and all violations of

Section 393.13(3)(g), F.S., shall constitute

a Class I violation.

87 . T he int r oductory language in subsection (1) of the

rule is best interpreted in conjunction with the more detailed

provisions in the paragraphs which follow. Subparagraph (a)1.

o f the rule does not require a group home to " implement " client

support plans , but instead requires it to " facilitate the

implementation " of such plans . This " softer " language i s

interpreted to require active good faith efforts and substantial

compliance with the plans, but not to impose strict

responsibility for every implement ation failure .

88 . The waiver support coordinator, Mr. Lumumba, who

drafted the support plans for Client R.H., testified that the

notations on 24 - hour supervision were " recommendations " of the

support plan as opposed to " requirements " of the support plan.

But Count I was not pr edicated on such a narrow ground, for the

broader services and goals established for Client R.H. by the

plans clearly indicated, when taken as a whole, that Client R.H.

was schizoaffective , chronically depressed , and often under the

influence of drugs . Hi s pattern of running away from the group

home and becoming involved with police or being admitted to

medical facilities was undeniable . The sheer volume of

incidents involving Client R.H. amply demonstrate s that the

supervision he was given was inadequate, and for enough of

these, the responsib le party was Respondent .

8 9. Regardless of whether Respondent was required to

literally provide 24 - hour supervision of Client R.H., it clearly

was required to facilitate the implementation of the support

plan, which amply documented and required a high level of

supervision to ensure Client R.H. ' s health and safety . This

Miracles failed to do.

9 0 . Miracles admits, to a point, that it was unable to

provide the support C lient R.H. required, noting in defen se that

it had requested a higher level of care code to obtain more

resources and that it could not legally restrain Client R.H.,

who was a competent adult . However true, Miracles ' con tinuing

inability to meet Client R.H. ' s considerable needs as outlined

in the support agreement obligated it to terminate services to

him, as it had done once before in 2015 , when it realized it

could not meet his needs . Miracles ' implicit ( and reasonably

convin cing ) further argument that Client R.H. was in fact better

off at Miracles than in the care of any other group home -- while

possibly a persuasive indictment of the overall system of group

home care for the developmentally disabled -- is similarly

unavailing as a defense against the charged violation of rule

65G - 2.009(1) (a)1.

9 1 . As for rule 65G - 2.009(1)(d), the Administrative

C omplaint was not clear as to which of Client R . H . ' s resident

right s or freedoms were alleged ly violated. There was no

compelling evidence or argument that Client R . H . ' s dignity was

infringed , that his right to privacy was violated , or that he

was subjected to unnecessary physical, chemical, or mechanical

restraint, isolation, or excessive medication.

9 2 . Section 393.0673 (1)(b) provide s that Petitioner may

take disciplinary action against a licensee if the DCF has

verified that the licensee is responsible for the abuse,

neglect, or exploitation of a vulnerable adult. 5 / This

legislative interjection of DCF action as a necessary pre dicate

to such discipline is duplicated in those provisions applicable

to initial licensure , perhaps as a " check " or " balance " of APD ' s

administrative power in order to deter the type of selective

prosecution asserted, but never shown, by Respondent. But

w hatever its purpose, it cannot be ignored.

9 3 . While APD rules regarding discipline sometimes do

(e.g. , rule 65G - 2.0041) and sometimes do not (e. g . , rule 65G -

2.009) acknowledge this statutor ily assigned role for DCF , it is

clear that to the extent a rule purport s to impose discipline

for such violation s , it must give way to the clear requirements

of the statute . § 120.57(1)(e)1., Fla. Stat. Therefore,

although the Administrative Complaint cites rule 65 G - 2.009(1)(d)

in alleging abuse, sexual abuse, neglect, and exploitation in

violation of section 393.13 (3) (part of the Bill of Rights of

Persons with D evelopmental Disabilities), APD cannot thereby

simply bypass and neut ralize section 393.0673 (1)(b) , which

specifically requires verified findings by DCF a s a prerequisite

to such disciplinary action . The more specific procedural

requirements of section 393.0673(1)(b) cannot be avoided by

simply charging the same conduct covered by that paragraph more

generally as a violation of statutory provisions or rules under

section 393.0673(1)(a)3 . Bloch Bros. Corp. v. D ep ' t of Bus.

Reg. , 321 So. 2d 447, 448 (Fla. 2d DCA 1975) (when Legislature

provides that an administrative power shall be exercised in a

ce rtain way , it cannot be done another way) ; State v. McTigue ,

387 So. 2d 454, 456 (Fla. 1st DCA 1980) (if a statute has both a

specific provision, and also a general one that in its most

comprehensive sense would include the matters embraced in the

former, t he particular provision prevail s , and the general

provision is interpreted to affect only such cases as are not

within the terms of the particular provision) .

9 4 . While the evidence was clear that Client R.H. was a

vulnerable adult, there was no evidence that the Department of

Children and Families ever made a verified finding of abuse,

neglect, or exploitation of him by Respondent. APD is without

authority to disc ipline such conduct without prior action by

DCF, and th e allegation that Respondent violated rule 65G -

2.009(1)(d) must be rejected.

9 5 . Petitioner proved by clear and convincing evidence

that Respondent failed to facilitate the implementation of

C lient R.H. ' s support plans , in violation of rule 65G -

2.009(1)(a)1.

Count II

9 6 . Count II alleges violation of rule 65G - 2.009 (3) (a) ,

entitled " T ransfer and Placement of Clients , " which at the time

of the alleged offen s e provide d :

The licensee shall have written criteria and

procedures in place for the admission or

termination of residential services for

clients; termination procedures must be

consistent with Chapter 65G - 3, F.A.C.

9 7 . The Administrative Complaint then goes on to identif y

the provisions o f rule chapter 65G - 3 with which Respondent ' s

termination procedures are alleged ly inconsistent. The only

operative language of rule chapter 65G - 3 that is set forth 6 / in

the complaint reads as follows:

If the client is found not to meet the

service provider ' s written criteria for

admissions and services, the area office is

responsible for removing the client within a

maximum of 25 calendar days of receipt of

certified notice to the Agency, and

providing alternative service arrangements

necessary to e nsure client safety and

prevent regression, unless the service

provider agrees to extend the probationary

period.

9 8 . In addition to this provision, t he Administrative

Complaint cites po r tions of rule 65G - 3.001 , which do not,

standing alone, have any operative effect , but which instead

define terms found elsewhere in the rule chapter :

(1) " Adequate Notice " means a written

notice informing the provider, client and

the client ' s authorized representative of at

least the following:

(a) The action the Agency and/or service

provider proposes to take.

(b) The reason for the action.

(c) The effective date of the action.

(d) The specific law, regulation and policy

supporting the action.

(e) The responsible state agency, including

the name and address of a specific person,

with whom a state appeal may be filed.

(f) The appeal procedures including

deadlines for filing appeals.

* * *

(h) For clients and authorized

representatives, an explanation of how the

service provider plans to co ntinue services

to clients during the period when the

proposed action of the service provider is

under appeal, including a statement that

services shall not be terminated during the

appeal.

* * *

(13) " Residential Program " means a facility

licen sed under Section 393.067, F.S.,

providing room and board and personal care

for persons with developmental disabilities.

This does not include providers covered

under the provisions of Part VIII of Chapter

400, F.S.

* * *

(17) " Termination " means the involuntary,

permanent discharge or discontinuation of

services in a residential or non - residential

program by the provider when such action is

not included in the habilitation plan.

Termination does not mean a discontinuation

of services to a c lient by a service

provider due to the unavailability of funds

to the provider by the Agency.

9 9 . The cited definitions of two of th e se three terms,

" adequate notice " and " residential program , " are irrelevant here

because they do not appear anywhere in t he substantive

provisions that the Administrative Complaint alleges were

violated by Respondent . While the definition of the third term,

" termination , " seems relevant, and Respondent ' s method of

termination of Client J.B. may seem inappropriate, Petitioner

did not show that the provisions of rule 65G - 2.009 and rule

chapter 65G - 3 7 / that were alleged to have been violated apply to

the facts of th is case .

100 . F irst, rule 65G - 2.009 (3)(a) requires a licensee to

have certain written criteria and procedures in place relating

to termination and requires them to be consistent with rule

c hapter 65G - 3. There was no evidence at hearing as to what

written criteria and procedures , if any, Respondent had in

place, and certainly nothin g about whether the y were or were not

consistent with rule chapter 65G - 3. In another type of case , i t

might p ossibly be argued that the concluding phrase " termination

procedures must be consistent with Chapter 65G - 3, F.A.C . " could

somehow be interpreted as a reference to procedures actually

followed in a given case, as opposed to a reference to the

written criteria and procedures just referenced in the first

part of the rule ( though such an interpretation completely

ignores the context ) . But here, in a d isciplinary case, any

such ambiguity would have to be resolved in favor of Respondent.

Beckett v. Dep ' t of Fin. Servs. , 982 So. 2d 94, 100 (Fla. 1st

DCA 2008 ) (where statutory language implicates sanctions or

penalties, ambiguity is to be interpreted in favor of the

licensee ).

101 . Second, even if rule 65G - 2.009 could be interpreted

as directly governing a licensee ' s conduct, as opposed to its

policies, rule 65G - 3 .002(4), claimed to be inconsistent with

Respondent ' s actions , is itself inapplicable here . Rule 65 G -

3.002 (4) by its terms directs the " area office , " not the service

provider, to take certain act ions in response to a certified

notice provided to APD . Respondent cannot be found in violation

of a rule that imposes no responsibilities upon it.

1 02 . Finally, e ven if a r espondent could be charged in

such a backdoor manner with violating the precedent requirement

(found in a different rule) for a provider to notify Petitioner

in writing by certified mail , rule 65G - 3.002 seems only

applicable to an initial 90 - day " probationary " period for

clients (though the rule is far from clear, again interpretation

favorable to the licensee must prevail) . Rule 65 G - 3.002(4)

expressly states that Petitioner will provide the alternative

service arrangements " unless the service provider agrees to

extend the probationary period. "

103 . The unrefuted testimony was that Client J.B. had been

at Respondent's group home since May of 2017, about seven months

before the incident charged, well beyond any 90 - day probationary

period. In short, r ule 65 G - 3.002(4) pres cr ibes duties on the

" area office, " not a provider , and furthermore applies only

during a probationary period.

104 . It was not shown that Respondent failed to have

written criteria and procedures f or termination in place or that

th ey w ere not consistent with the requirement that the " area

office " promptly remove a client and provide alternative

services within the probationary period.

105 . Ms. Llaguno testified that the appropriate procedure

to terminate services to Client J.B. would have been for

Respondent to send a 30 - day notice terminating her placement ,

but th at rule , if it exists, was not cited, 8 / and Respondent was

not charged with its violat ion.

106 . Petitioner failed to prove by clear and convincing

evidence that Respondent violated rule 6 5G - 2.009 (3)(a) or

rule 65G - 3.002 (4) .

Count III

107 . Count III alleges violation of section

393.0673 (1)(a)2. , which provides that the a gency m ay revoke or

suspend a lic e nse or impose f ines if the licensee had prior

action taken against it under the Medicaid program .

108 . Petitioner showed that the Agency for Health C are

Administration took action against Respondent by terminating its

Medicaid provider number by letter dated August 3, 2017 .

Respondent lost its Medicaid provider authorization and has lost

the right to furnish Medicaid services and receive payment from

Medicaid in Florida.

10 9 . Petitioner prove d by clear and convincing evidence

that Respondent violated section 393.0673 (1)(a)2.

Penalty

110 . Section 393.0673(1) provides that APD may revoke or

suspend a license or impose an administrative fine, not to

exceed $1,000 per violation per day, on a licensee which has had

prior action taken against it under the Medicaid or Medic are

program or f ailed to comply with the applicable requirements of

chapter 393 or applicable rules .

111 . Section 393.0673(7) directed APD to establish by rule

criteria for evaluating the severity of violations and for

determining the amount of fines imposed. APD has adopted

r ule 65G - 2.009, entitled Resident Care and Supervision

Standards , and rule 65G - 2.0041, entitled License Violations Ï

Disciplinary A ct ions .

112 . Rule 65G - 2.009 ( 1 )( g ) provides that a violation of

rule 65G - 2.009 (1)(a)1., as alleged and proven in Count I,

constitutes a Class III violation. 9/ Rule 65G - 2.0041(4) (c)1.

p rovides that Class III violations may be penalized by a fine of

up to $100 per day for each violation.

113 . Section 393.0673(1) provides that a violation of

section 393.0673(1)(a)2. , as alleged and proven in Count III,

may be penalized by revo cation or suspen sion of a license or

impos ition of an administrative fine, not to exceed $1,000 per

violation per day . However, the parties did not cite , and the

undersigned could not identify , a rule establishing the criteria

for evaluati ng the severity and for determining the amount of

fine to be imposed when a licensee has had prior action taken

against it under the Medicaid program , notwithstanding section

393.0673(7) .

114 . Rule 65G - 2.0041(2) lists the following factors to be

considered when determining sanctions to be imposed for a

violation:

(a) The gravity of the violation, including

whether the incident involved the abuse,

neglect, exploitation, abandonment, death,

or serious physical or mental injury of a

resident, whether death or serious physical

or mental injury could have resulted from

the violation, and whether the vio lation has

resulted in permanent or irrevocable

injuries, damage to property, or loss of

property or client funds;

(b) The actions already taken or being

taken by the licensee to correct the

violations, or the lack of remedial action;

(c) The types, da tes, and frequency of

previous violations and whether the

violation is a repeat violation;

(d) The number of residents served by the

facility and the number of residents

affected or put at risk by the violation;

(e) Whether the licensee willfully

commi tted the violation, was aware of the

violation, was willfully ignorant of the

violation, or attempted to conceal the

violation;

(f) The licensee ' s cooperation with

investigating authorities, including the

Agency, the Department of Children and

Families, or law enforcement;

(g) The length of time the violation has

existed within the home without being

addressed; and

(h) The extent to which the licensee was

aware of the violation.

115 . Respondent ' s failure to adequately supervise might

have resulted in serious physical or mental injury , but there is

no indication that the violation was wil l ful . While

R espondent ' s inadequate supervision of Client R.H. extended for

a period of time, this was after Petitioner requested that

Respondent resume care for hi m . Respondent repeatedly s ought to

have a higher level of care code assigned to increase

supervision of Client R . H. and believed it was unable to legally

restrain Client R.H. A lthough this does not constitut e a

d efense, it is a mitigating factor . Respondent has lost the

right to furnish Medicaid services and receive payment from

Medicaid , but Petitioner ' s failure to establish criteria for

evaluating the severity of the violation and for determining the

amount of fine , coupled with the absence of record evidence as

to the reason for the Medicaid action, precludes revocation.

Suspension of Respondent' s license until the right to provide

Medicaid services has been restored should provide a penalty

inherently commensurate with the Medicaid action .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Agency for Persons with Disabilities

enter a final order finding Miracles House, Inc., as licensee of

Miracles House, Inc. , Group Home, i n violation of Florida

Administrative Code Rule 65G - 2.009(1)(a)1. and section

393.0673(1)(a)2. , Florida Statutes ; suspending its license to

operate a group home until its right to furnish Medicaid

services and receive payment from Medicaid in Florida is

restored ; and imposing a fine in the amount of $100.

DONE AND ENTERED this 17th day of September , 2018 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 17th day of September , 2 018 .

ENDNOTES

1 / All references to Florida Statutes or administrative rules

are to the versions in effect on the date s of the alleged

violations , except as otherwise indicated.

2/ It is determined that a hearing by video tele conference with

one site in Miami , as requested by the parties , meets the

requirement in section 393.0673 that hearings be held within the

county i n which the licensee operates.

3 / It appears the style of the waiver case may not have been

technically correct, referencing as it d oes Ms. Whipple as an

" operator " of the corporation holding the waiver agreement , but

the agency action letter and action taken appear properly

directed toward the corporation. Th e style of the instant case

has si m ilarly been adjusted to reflect the proper Respondent

licensee , c onsistent with the stipulations of the parties .

4 / While evidence at hearing indicates that Miracles ' license

was to expire on July 31, 2018, th is case was brought by APD as

disciplinary action through Administrative Compl aint rather than

by Miracles as an application to contest denial of a renewal

application. The record does not indicate if Miracles ' license

has subsequently had monthly extensions.

5/ Reporting of suspected abuse, neglect, or exploitation of a

vulnerable adult to DCF is mandatory under chapter 415, Florida

Statutes.

6 / While the complaint also referred to subsection (5) of the

rule , the recitation of only the language of rule 65G - 3.002 (4)

in the complaint raises a question about whether Respon dent was

given sufficient notice of this other subsection to consider it

as a n additional basis for the complaint. It provided:

The provider shall continue to provide

services in the facility until the client is

removed by the Agency. The removal shall be

completed within a maximum of 25 calendar

days from the date of receipt of certified

notice to the department unless otherwise

agreed upon by the Agency and the provider.

As suming adequate notice in the Administrative Complaint,

reli ance upon rule 65G - 3.002 (5) fails for the same reasons

discussed above in connection with subsection (4) . While

subsection (5) states that the provider shall continue to

provide services, it similarly pertains to th e period of time in

the probationary period after a certified notice has been

provided. Rules must be read in context.

7 / Rule chapter 65G - 3 was last amended some 25 years ago , in

1993 , and its logic, structure , and terminology are in need of

updat ing .

8 / Rule 65G - 3.005, entitled " Rules for Termination of Services

by the Provider, " states in subsection (1) that written notice

of intent to terminate services shall be received by certified

mail within 15 business days prior to the proposed effective

date, but this rule was not cited i n the Administrative

Complaint.

9/ The " catch all " provision of paragraph (g) applies because

there was no proof of violation of Client R.H. ' s right to

dignity, privacy, or humane care, or his right to be free from

abuse, including sexual abuse, exploitation, harm, including

unnecessary physical, chemical, or mechanical restraint,

isolation, or excessive medication. Additionally, as discussed

above, licensee discipline for abuse, neglect, or exploitation

of a vulnerable adult requires a verified finding from DCF.

COPIES FURNISHED:

Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Adres Jackson - Whyte, Esquire

10735 Northwest 7th Avenue

Miami, Florida 33168

(eS erved)

Gypsy Bailey, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 335E

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.