00-001423 Department Of Children And Family Services vs. Velina R. Treadwell-Razz | V. R. T. Status: Closed Recommended Order on Monday, October 30, 2000.

Summary: Renewal of license for group house should be denied where evidence shows multiple violations of standards.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 00-1423

)

VELINA R. TREADWELL-RAZZ )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on August 1, 2000, at West Palm Beach, Florida, before Judge

Michael M. Parrish, an Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Rendell Brown, Esquire

Br own & Brumfield

319 Clematis Street, Suite 217

West Palm Beach, Florida 33401

For Respondent: Terry Verduin, Esquire

Department of Children and

Family Services

111 South Sapodilla Avenue, Suite 201

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

The issues in this case concern whether the Respondent is

entitled to renewal of her license to provide residential

services for persons who are developmentally disabled.

PRELIMINARY STATEMENT

Following receipt of notice that the Depart ment intended to

refuse renewal of her license to provide residential services for

persons who are developmentally disabled, the Respondent

(Mrs. V.R.T.) filed a timely request for hearing on the matter.

In due course the matter was referred to the Division of

Administrative Hearings, where it was scheduled for hearing on

August 1, 2000.

At the final hearing on August 1, 2000, the Department

presented the testimony of four witnesses. The Department also

offered 14 exhibits into evidence. Objections to the

Department's Exhibits 9 and 10 were sustained. The other

exhibits offered by the Department were received in evidence.

The Respondent testified on her own behalf, but she did not call

any additional witnesses. The Respondent also offered 7

exhibits, all of which were received in evidence. One Joint

Exhibit 1 was also received in evidence, and official recognition

was taken of several rule and statutory provisions.

Neither party filed a transcript of the final hearing held

on August 1, 2000. Both parties filed proposed recommended

orders containing proposed findings of fact and conclusions of

law. The parties' proposals have been carefully considered

during the preparation of this Recommended Order.

FINDINGS OF FACT

Introductory and background facts

1. At all times material to this proceeding, the Respondent

provided, and was licensed to provide, residential services for

persons who are developmentally disabled. The Respondent

provided these services in a group home where she had from 4 to 6

clients at any one time. From time to time representatives of

the Department would identify deficiencies in the way the

Respondent was providing the residential services. Typically,

the Department would advise the Respondent of specific

deficiencies following a visit to the Respondent's group home.

The Respondent would often take steps to correct the identified

deficiencies, but some deficiencies tended to occur again and

again. The Department attempted to work with the Respondent to

help her remedy deficiencies and to help her prevent future

deficiencies. Eventually, on February 25, 1999, the Department

advised the Respondent by letter that it did not intend to renew

her license to provide residential services for persons who are

developmentally disabled.

2. The Department's letter of February 25, 1999, advised

the Respondent that the "quality of care by your facility does

not meet the minimum licensure standard[s] as specified in

Chapter 10F-6," and went on to list a number of specific concerns

under the major categories of "Administration" and "Health and

Safety." The concerns itemized in the letter were as follows:

Administration

- Records of expenditure from individual

residents' accounts are not maintained.

- Lack of accountability of client's personal

allowances.

- Inappropriate use of client's personal

allowance.

- Inadequate receipts for client's

expenditures.

- Incomplete employee files.

- Employees without personnel files.

Health and Safety

- Clients locked inside the house without

supervision.

- Gate/Entrance chained.

- Lack of evidence of all night supervision.

- Clients left unsupervised during a week-

end.

- Inadequate food supply.

- Clients' lack of access to food.

- Food prepared away from residence.

- Menus not posted.

The letter also advised the Respondent of her right to request an

administrative hearing if she wished to contest the Department's

proposed course of action.

3. After some initial difficulties complying with the

Department's requirements, the Respondent's group home (which had

been moved from its original location without sufficient notice

to the Department) was issued a conditional license on January 1,

1998, followed by a standard license issued on March 1, 1998.

The standard license was valid for one year from the date of

issuance. In March of 1998 when the standard license was issued,

conditions at the Respondent's group home appeared to be

satisfactory.

4. For the first few months following the issuance of the

standard license, the Department did not have any significant

concerns about the manner in which the Respondent's group home

was being operated. The Respondent appeared to be responsive to

suggestions by Department personnel and appeared to be trying to

work with Department personnel to operate her group home in a

proper manner. From March through most of June of 1998, there

were no major problems at the Respondent's group home.

The incident on June 27, 1998 2

5. On June 27, 1998, an incident occurred at the

Respondent's group home that caused the Department a great deal

of concern. On that day, at approximately 4:30 p.m., Mr. L. N.

arrived at the Respondent's group home, in Boynton Beach,

Florida, to visit his son who is mentally retarded. He was

unable to enter because the gate to the fence surrounding the

home was chained and locked. He observed some of the group home

residents in the front yard and others in the house. Still

unable to enter the gate later when he returned, Mr. L. N.

telephoned police. Road Patrol Officer Susan Gitto responded.

6. At approximately 6:45 p.m., Officer Susan Gitto arrived

at the group home and climbed the fence. One of the men at the

group home kept pointing to the house next door, north of the

group home. Officer Gitto found no one on the premises other

than the six mentally handicapped men who were in their pajamas

and inside watching television.

7. Based on information from Mr. L. N., Officer Gitto

telephoned the responsible agency, the Department of Children and

Family Services (DCF). A DCF case worker supervisor,

Anna Glowala, arrived at the group home at approximately

9:00 p.m. She described the residents as nervous. Most of them

were functioning at a level below the ability to respond to

emergencies, that is, unable to telephone 911 or to evacuate in

case of a fire. Ms. Glowala prepared a preliminary report on her

findings at the group home.

8. Sometime after 9:00 p.m., a woman who identified herself

as Elvira Brown arrived with a key to the group home. She

intended to take care of the clients that evening, but was sent

away by Officer Gitto, who also left the home soon after that.

9. At approximately 12:45 a.m., on June 28, 1998,

Ms. Glowala's supervisor, William D. S hea, arrived at the group

home. Mr. Shea relieved Ms. Glowala and stayed with the

residents for the rest of the night. The six adult residents,

according to Mr. Shea, were lower functioning and non-verbal.

10. At 6:15 a.m., a woman who identified herself as

Sharon Butler arrived to cook breakfast and supervise the

residents. She assured Mr. Shea that she was an employee of the

group home and would remain at the group home until the licensed

operator returned from an out-of-town trip. After he left,

Mr. Shea asked Ms. Glowala to continue to monitor the group home

by telephone until the operator returned. Mr. Shea did not check

the woman's identity or determine whether she was, in fact, a

qualified employee, as required by DCF.

11. Mr. Shea testified that a group home operator may leave

properly screened employees to relieve them when they are absent.

The screening includes fingerprinting for police background

checks.

12. DCF witness, Sue Pearlman Eaton, received the report of

the incident on June 30, 1998. On July 1, 1998, she initiated an

investigation by visiting the group home. When she arrived, she

found one resident in the front yard sleeping on a lawn chair,

and others inside watching television. One resident took her to

a room in response to her request for help finding the

owner/operator, but no one was there. She noticed where five of

the six residents of the home were located, and what they were

doing.

13. After approximately twenty minutes to a half hour,

Ms. Pearlman-Eaton observed the operator coming into the house.

She was angry and said she had been in the backyard with the

sixth resident feeding her dogs. She told Ms. Pearlman-Eaton

that she hired Ms. Butler to stay at the group home during her

previous weekend trip to Tampa. The operator reported that she

left at approximately 12 o'clock noon on Saturday, and that

Ms. B utler was present when she left.

14. Ms. Pearlman-Eaton also questioned Ms. Butler, as a

part of her investigation. As she apparently confirmed,

Elvira Brown, Ms. Butler's cousin, was supposed to stay at the

group home from 2:00 p.m. until 10:00 p.m., while Ms. Butler

worked at another job. According to Ms. Pearlman-Eaton's report,

Ms. Brown telephoned Ms. Butler and told her that her work at the

group home was completed between 6:00 p.m. and 7:00 p.m., and

that the residents were in bed.

15. The report indicated that Ms. Brown stated that

Ms. Butler asked her to help by feeding the residents and getting

them ready for bed. Then she was to lock the gate and leave.

16. Based on Ms. Butler's statement to Ms. Pearlman-Eaton

that the group home owner/operator Mrs. V. R. T. approved

Ms. Butler's plan to have Ms. Brown serve as an interim

caretaker, the investigators concluded that both of them were

perpetrators of abuse by neglecting clients who require 24-hour

supervision. DCF failed to present the testimony of either

Ms. Brown or Ms. Butler at the hearing. Therefore, the testimony

of Mrs. V. R. T. and her credibility could not be weighed against

that of any other person with direct knowledge of the incident on

June 27, 1998.

17. Ms. Pearlman-Eaton's report noted that the group home

clients and facility were neat and clean, with no clients "acting

out" or appearing to be in distress. Prior to the time that the

group home owner/operator came in from the backyard on July 1,

1998, Ms. Pearlman-Eaton did not look in the backyard or hear a

car arrive. She also did not determine whether or not there were

dogs in the yard.

18. During Ms. Pearlman-Eaton's questioning of Ms. Butler,

Ms. Butler told her that she also worked at the Flamingo

Clusters, another facility licensed by the State to provide

developmental services. Clients of Flamingo Clusters are more

severely handicapped than those at the V. R. T. group home.

Ms. Pearlman-Eaton was initially investigating Ms. Butler and

Ms. Brown. She added the group home operator to the neglect

report, after she waited for her for up to a half an hour after

arriving, on July 1, 1998, to conduct her investigation. While

she was waiting to find Mrs. V. R. T., her report indicates that

Mrs. Pearlman-Eaton telephoned Anna Glowala, the case work

supervisor. She was advised by Ms. Glowala that ". . . it was

not necessary for residents to be in eye range of the supervisor

continually and its [sic] okay for them to be left alone for no

more than 1/4 hr."

19. Anna Glowala also noted the condition of the group home

when she stayed with the clients. She remembered there were two

large dogs, one a R ottweiler, in the backyard. She also saw a

pathway between the two adjacent houses, the group home and the

house next door, which is owned by the owner/operator's husband.

Ms. Glowala also saw laundry and other items on a sofa in the

garage where the owner/operator claims that she sleeps. The

garage area also included a refrigerator, washer and dryer.

20. Kay Oglesby, a DCF senior case manager, testified that

she had previously warned the owner/operator that the gate to the

fence should not be locked and that the residents needed constant

supervision. She believed that during her first year supervising

the facility, the owner/operator and her husband occupied a

master bedroom in the group home. After DCF requested that they

take in two additional clients, in May 1998, the owner/operator

said she moved to the garage.

21. Ava Kowalczyk, a DCF H uman S ervices P rogram S pecialist,

confirmed that only screened and approved employees may work in a

group home. The owner/operator has the responsibility for

assuring that group home employees are qualified. She expressed

concern that the owner/operator may have left the residents with

her husband before he was properly trained.

22. Ms. Kowalczyk described the cluttered condition of the

sofa in the garage as inconsistent with Mrs. V. R. T.'s

assertions that she sleeps in the garage.

23. Finally, DCF employee Martin J. Fortgang confirmed the

need for adequate supervision and the DCF's determination that

inadequate supervision constitutes neglect.

24. The group home owner/operator, the Respondent,

Mrs. V. R. T., testified that two years ago she married her

husband, who had lived next door for 18 years. While he lived

with her in the group home, her husband's house next door was

leased. She knew she was required to live on the premises and

testified that she has done so, initially in the master bedroom.

After accepting two more clients, on an emergency basis after

another group home closed, she moved to the garage. Her husband

has apparently moved back to his home next door.

25. In March 1998, Mrs. V. R. T. submitted to DCF, as

confirmed by Ava Kowalczyk, the names of her husband,

Sharon Bu tler, and another employee for screening and approval.

The document included fingerprints and a police report, which

showed that Ms. Butler had a prior arrest for armed burglary.

26. Mrs. V. R. T. denied ever giving permission for

Elvira Brown to substit ute for Sharon Butler. Although

Sharon Butler had numbers to reach Mrs. V. R. T. by pager and

cellular phone, and at her hotel in Tampa, Mrs. V. R. T. denied

that Ms. Butler ever telephoned her for approval to leave

Ms. Brown at the group home.

27. Despite her arrest record, the documents which

Mrs. V. R. T. submitted and received from DCF appear to confirm

that Ms. Butler was an acceptable employee. One memorandum

labeled a "Routing and Transmittal Slip" dated 3/31/98 states:

Per your request, I have processed the

Transfer of Request Form for Sharon Butler.

Please see enclosed printout and Transfer

form. Please maintain the [sic] these in

your personnel files.

28. The record indicates that Mrs. V. R. T. received

written notice that Sharon Butler was not an approved caretaker

on July 16, 1998. In contrast to the apparent approval form of

March 31, 1998, the notice on July 16, 1998, from Ava Kowalczyk

asserted that:

This is to document my visits to your house

on June 30, 1998 and July 2, 1998. At that

time you informed us that for a year you have

had an employee S haron Butler, who acts as

caretaker in your absence. This employee did

not meet basic standards of licensing

requirements. Ms. Butler's file consisted of

her fingerprint card and local law

enforcement checks completed on her on or

about March 31, 1998. This was the first

time you brought to our attention that you

employed someone other than yourself and your

husband.

29. Considering the contents of the Routing and Transmittal

Slip attached to the documents dated March 31, 1998, it was

reasonable for Mrs. V. R. T. to believe that Sharon Butler was an

approved employee. One section on the Request for Transfer of

Records indicates that Ms. Butler was approved for dual

employment at the group home and another facility, having had her

screening originally completed on October 3, 1994.

30. DCF has failed to demonstrate, by a preponderance of

the evidence, that Mrs. V. R. T. knew that Sharon Butler was not

properly screened and approved on June 27, 1998, when she left

her in charge of the group home. DCF has also failed to

demonstrate that Mrs. V. R. T. knew or approved of plans for

Sharon Butler to leave the group home clients in the care of

Elvira Brown while she was out-of-town.

Other problems at the Respondent's group home

31. On some occasions the Respondent would lock the doors

of the group home while the clients were inside. When she did

so, she would leave the door keys on top of the television set

inside the group home. 3

32. On some occasions the Respondent would lock the gate in

the fence around the group home property while clients were on

the property.

33. The Department usually made monthly review visits to

the Respondent's group home. Some of the problems noted during

these monthly reviews are described in the paragraphs which

follow.

34. During the review visit on June 30, 1998, some of the

food for the clients was stored away from the group home

premises, and was not readily available to the clients.

Specifically, no drinks or snacks were readily available for the

clients that day. The required 5-day supply of food was not

present on the premises, and the food that was present did not

correspond to the menu.

35. During the review visit on August 26, 1998, there were

errors in the personal allowance logs of the clients. Also, on

this date once again the food supplies did not correspond to the

menu.

36. During the review visit on September 22, 1998, the

personal allowance logs of the clients were not up to date.

Specifically, there were no receipts, there was no documentation

of the personal allowance received by any of the clients, and

there was no documentation of the SSI/SSA benefits received by

any of the clients. Once again, the food supplies did not

correspond to the menu, and there were inadequate food supplies

for a hurricane emergency.

37. During the review visit on October 28, 1998, the

personal allowance logs for the clients were again incomplete.

Receipts for client expenses were missing, and there was

inadequate documented information about the expenses. There were

no menus posted on this day. Also, the gate to the fence around

the Respondent's group home was chained shut when the Department

personnel arrived. This condition was of particular concern to

the Department personnel, because the chained gate was an

obstruction to any emergency evacuation of the group home.

38. During the review visit on November 20, 1998, the

personal allowance logs for the clients were again incomplete and

inadequate. Again, receipts were missing. Again, the food

present at the group home was insufficient to constitute the

required 5-day supply of food. Again, no menus were posted.

Also, on this occasion the meals for the clients were being

prepared next door, rather than in the group home, as required.

39. All of the clients at the Respondent's group home were

developmentally disabled adult males. All of the clients

functioned at a very low developmental level. Some were just

barely verbal. Clients at this level of disability need constant

supervision while they are in the group home. They cannot be

left unsupervised without exposing them to serious risk of harm

to their well-being. Even at night when such clients are

sleeping, a responsible, appropriately trained, adult must be

present in the group home to provide supervision and assistance

if one of the clients wakes up in the night and needs direction

or assistance.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57, Florida Statutes.

41. In a case of this nature, the Department bears the

burden of proving a basis for its proposed denial of the

Respondent's license renewal. See The Angelus, Inc. v.

Department of Health and Rehabilitative Services , DOAH Case

No. 91-6193 (Recommended Order issued May 19, 1992); Edward and

Nancy Bristol v. Department of Health and Rehabilitative

Services , DOAH Case No. 88-5183 (Recommended Order issued May 9,

1989); and cases cited therein.

42. Section 393.0673(1), Florida Statutes, authorizes the

Department to deny, revoke, or suspend a license for a violation

of any provision of Sections 393.0655 or 393.067, Florida

Statutes, or for violation of any rules adopted pursuant to the

cited statutory provisions. Consistent with the foregoing,

Rule 65B-6.003(5), Florida Administrative Code, provides: "A

license shall be revoked at any time, pursuant to Chapter 28-6,

F.A.C., if the applicant fails to maintain applicable standards

or to observe any limitations specified in the license."

43. Rule 65B-6.010, Florida Administrative Code, contains

the standards applicable to group home facilities. Section

(3)(a)7 of that rule requires that the facility establish and

maintain on the premises an individual record for each client,

which shall include, among other things, "an accounting of the

client's funds received and/or distributed by the vendor." The

facts in this case demonstrate that the Respondent was frequently

in violation of this rule provision, because on numerous

occasions the Respondent's client accounting records were

incomplete and/or incorrect.

44. Section (5) of Rule 65B-6.010, Florida Administrative

Code, addresses the qualifications of the staff hired to work at

group home facilities. The requirements of Section (5) include

the following:

(a) Sufficient staff shall be provided to

ensure that facility operation is not

dependent upon the use of clients or

volunteers. . . .

(b) . . . Written evidence of the

qualifications of the direct care staff shall

be maintained. Minimum criteria shall be

demonstrated ability to meet the written

established job description, appropriate life

experience, and eighth grade education.

(c) Staff shall be of suitable physical

and mental ability to care for the clients

they propose to serve; have knowledge of the

needs of the clients; be capable of handling

an emergency situation promptly and

intelligently; and be willing to cooperate

with the supervisory staff.

45. The findings of fact demonstrate that the Respondent

violated the rule provisions quoted immediately above in more

than one way. The most serious violation occurred on June 27,

1998, when the staff left in charge of the Respondent's clients

abandoned the clients and left them totally unsupervised for

several hours. If nothing else, such conduct shows that the

staff had no knowledge of the needs of the clients. Such conduct

also constitutes neglect of the clients within the meaning of

Chapter 415, Florida Statutes. The Respondent also violated the

rule provisions quoted immediately above by failing to maintain

written evidence of the qualifications of the direct care staff.

46. Section (7)(b)10 of Rule 65B-6.010, Florida

Administrative Code, provides that at group homes, "all doors

with locks must be readily opened from the inside." Section

(7)(b)12 of the same rule provides that at group homes "no exit,

stairway, corridor, ramp, fire escape, or other means of exit

shall . . . be obstructed from use in case of emergency." The

findings of fact demonstrate that the Respondent violated both of

these rule provisions by leaving clients inside the locked group

home, and by locking the gate to the fence around the property.

47. Section (9)(c) of Rule 65B-6.010, Florida

Administrative Code, includes the following provisions regarding

food service at group homes:

2. Menus shall be planned and written at

least two days in advance and dated. Menus,

as served, shall be kept on file for a

minimum of one month.

3. Fresh food supplies sufficient for two

days and staple food supplies sufficient for

at least five days shall be available at the

facility at all times.

48. The findings of fact demonstrate that the Respondent

violated the rule provisions quoted immediately above on numerous

occasions by not having menus available and by not having

available the minimum amounts of food required by the rule.

49. In view of the numerous rule violations described

above, renewal of the Respondent's license should be denied

pursuant to Section 393.0673(1), Florida Statutes. This is

especially the case because of the occasions on which the

Respondent's clients have been exposed to risk of serious harm by

being left unsupervised, by being left locked in the house, and

by having the gate locked.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that

the Department of Children and Family Services District issue a

Final Order in this case denying the renewal of the Respondent's

group home license.

DONE AND ENTERED this 30th day of October, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of October, 2000

ENDNOTES

1/ The joint exhibit consists of the Final order and the

Recommended Order in Department of Children and Family Services

v. V. R. T. , DOAH Case No. 99-1174C (Recommended Order issued

October 21, 1999). In Case No. 99-1174C, these same parties

litigated many of the facts that are relevant to the disposition

of this case. During the course of the evidentiary hearing in

this case, the parties stipulated that the facts found in Case

No. 99-1174C should be taken as established facts in this case.

Accordingly, the facts found in the Recommended Order in Case No.

99-1174C have been incorporated in the Findings of Fact in this

Recommended Order.

2/ Consistent with the stipulation of the parties, all of the

findings of fact in paragraphs 5 through 30 are taken verbatim

from the Findings of Fact in the Recommended Order in DOAH Case

No. 99-1174C.

3/ The Respondent testified that all of the clients were capable

of using the keys to unlock the door if they needed to get out.

The Respondent's testimony in this regard is not credited. Other

testimony about the low level at which the Respondent's clients

functioned makes it most unlikely that in an emergency such

clients could find a key and then effectively use the key to

unlock a door and escape.

COPIES FURNISHED:

Rendell Brown, Esquire

Brown & Brumfield

319 Clematis Street, Suite 217

West Palm Beach, Florida 33401

Terry Verduin, Esquire

Department of Children and

Family Services

111 South Sapodilla Avenue

Suite 201

West Palm Beach, Florida 33401

Virginia A. Daire, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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.