01-002462 Threasa L. Garrett vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, October 30, 2001.

Summary: Agency justified in denying Petitioner`s request for funding under the Choice and Control Pilot Project.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THREASA L. GARRETT, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2462

)

DEPARTMENT OF CHILDR EN )

AND FAMILY SERVICES, )

)

Respondent. )

___________________________ _____)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on August 23,

2001, and September 26, 2001, by Barbara J. Staros, assigned

Administrative Law Judge of the Division of Admin istrative

Hearings, in Panama City, Florida.

APPEARANCES

For Petitioner: Sharon Earl George

518 Everitt Avenue, Lot 25

Panama City, Florida 32401

For Respondent: John R . Perry, Esquire

Department of Children

and Family Services

2639 North Monroe Street

Suite 252A

Tallahassee, Florida 32399 - 2949

STATEMENT OF THE ISSUE

Whether the Department of Children and Family Services

should approve a plan submitted by Sharon George, the mother,

primary caregiver, and representative of Petitioner, under the

Choice and Control Pilot Project.

PRELI MINARY STATEMENT

Mrs. Sharon George, mother and representative of

Petitioner, submitted a plan to the Department of Children and

Family Services (DCFS) under the Choice and Control Pilot

Project (Pilot Project) whereby Mrs. George would be paid by

the Stat e of Florida to provide caregiver services to

Petitioner.

On May 2, 2001, DCFS notified Mrs. George that her

request to receive services through the Pilot Project was

being denied as her request did not meet certain purchasing

guidelines.

Mrs. George reque sted an administrative hearing and the

case was forwarded to the Division of Administrative Hearings

on or about June 22, 2001. A formal hearing was scheduled for

August 23, 2001. The case required more than one day and a

continuation of the hearing was scheduled for September 26,

2001.

At hearing, Petitioner presented the testimony of Eddie

Sims, Robert J. Earl, Celeste Earl, Dawn E. Phillips, and

Donna Garrett, and offered Exhibits 1 - 12, which were admitted

into evidence with the exception of Exhibit 6. Mrs. George

left the hearing room prior to the conclusion of the hearing

on September 26, 2001. Respondent presented the testimony of

Warren Oliver, Mary Helen Barnes, Shayne Betts, and Hilary

Brazzell, and offered Exhibits 1 through 5, which were

adm itted into evidence.

The hearing was not transcribed. Respondent timely filed

a Proposed Recommended Order which has been considered in the

preparation of this Recommended Order. Petitioner did not

file a post - hearing submission. 1

FINDINGS OF FACT

1. Threasa Garrett is a 29 year - old woman with brain

damage and severe mental retardation. She is petite and

appears to be much younger than her actual age.

2. Ms. Garrett cannot articulate her needs and cannot

perform most of the activities of daily livin g such as

feeding, bathing and other hygiene, and dressing. She must be

closely supervised at all times, as she is unable to recognize

danger. She attempts to eat nonfood items if not prevented

from so doing. She has the propensity to wander about.

3. Ms. Garrett has been severely retarded most of her

life. Her mother, Mrs. George, has been her primary

caregiver. The caregiving for Ms. Garrett has been long term

and extremely demanding.

4. One of the means employed by Mrs. George to deal with

Ms. G arrett's propensity to wander is by using a harness and

tether. The harness fits around Ms. Garrett's upper torso and

is attached to a tether in the back.

5. Ms. Garrett is a client of the Developmental

Disabilities Program of DCFS. The Developmental Disabilities

Program provides and coordinates the provision of goods and

services to developmentally disabled clients such as

Petitioner.

6. The Choice and Control Pilot Project is an

experimental program operated by the Developmental

Disabilities Program . The purpose of the Pilot Project is

to allow families of developmentally disabled clients greater

flexibility and a greater role in procuring and providing

services for their developmentally disabled family members.

7. A feature of the Pilot Program which is material to

this case is that, with the approval of DCFS, the family

members of the DCFS client can provide services to the client,

and be paid to do so with state moneys.

8. In order to participate in the Pilot Project, the

family member must si gn and agree to abide by the terms of the

Pilot Project Agreement. This agreement requires that the

participant must comply with project guidelines including

purchasing guidelines. Two purchasing guidelines which are

material to this case are guideline n umber four, "[the]

provider must be capable and qualified" and guideline number

5, "[h]ealth and safety needs must be met." DCFS based its

denial letter on its determination that Petitioner's request

does not meet these two purchasing guidelines.

9. P etitioner will be able to continue to be a client of

and to receive services from the Developmental Disabilities

Program despite DCFS' denial of Mrs. George's request to

receive funding from the Pilot Project.

10. On July 14, 2000, Mrs. George decided to go to

northern Alabama. The reason for her trip is not clear in the

record. The weather was hot and Mrs. George feared that

Threasa would not do well in the heat of her vehicle. She

based this fear on past experiences in which Threasa

experienced health problems when overheated. Mrs. George left

Threasa at the home of Donna Garrett, Threasa's sister.

11. Mrs. George was aware that her daughter, Donna, had

a job which would require her to leave the home at 6:30 a.m.

the morning of July 14, 2000, and was not expected to return

until approximately 1:00 p.m. that day. Mrs. George planned

to be gone on her trip the whole day.

12. Around noon, law enforcement personnel were summoned

to Donna Garrett's home by someone who came to the home to

perform pest c ontrol there. The officer gained entry to the

home and saw Threasa alone wearing the harness and tethered to

a couch. Petitioner was soaked with urine. DCFS sent a child

protective investigator to the scene because the officer

thought she was a child. When Threasa's actual age was

established, an adult protective investigator was summoned.

13. The adult protective investigator was concerned

about the harness and tether, and that Threasa had been left

alone in the home. Additionally, he was concerned t hat she

had no food or water, and no access to a telephone to call for

help. He arranged to send Threasa to a location where she

would be supervised. After discussing this with family

members who did not want her sent to an institutional setting,

Ms. Gar rett was sent to her grandfather's house with a family

member.

14. The Department's decision to deny Mrs. George's

application was based primarily on the incident of July 14,

2000. That is, that Threasa had been left alone unsupervised

for a number of ho urs with no means of escape in the event of

an emergency. Additionally, as Mrs. George had indicated to

DCFS that she would make the same choice again, DCFS was

concerned that such an incident would happen again.

15. Mrs. George's explanation for her actions were that

Threasa had been tethered for her safety (so she would not

roam and hurt herself), that food had not been left for her as

she is unable to feed herself safely, that no telephone was

needed because Threasa cannot communicate meaningfully, is

unable to use a telephone, and a telephone wire could endanger

Threasa. Mrs. George was confident that Threasa would be safe

if left alone for a number of hours under these conditions and

based this confidence on her years of caring for Threasa and

on Mrs. George's religious beliefs.

CONCLUSIONS OF LAW

16 The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case,

Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

17. The burden of proof is on the party asserting the

affirmative of an issue. Antel v. Department of Professional

Regulation , 522 So. 2d 1056 (Fla. 5th DCA 1988) The standard

of proof is a preponderance of the evidence. Section

120.57(1)(j), Florida Statutes. In this case, Petiti oner has

the burden of proof. Petitioner has not met this burden.

18. The Department's decision was based primarily on its

concern over the July 14, 2000, incident during which Threasa

Garrett was left unattended by Mrs. George for a number of

hours. Wh ile Mrs. George is entitled to her religious beliefs

regarding her daughter's safety, the Department of Children

and Family Services cannot be expected to ignore the fact that

Threasa Garrett was placed in danger on July 14, 2000, by

being left unattended for a number of hours with no means of

escape in the event of an emergency. Thus, DCFS'

determination to deny the request for Pilot Project funding

was justified.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Respondent enter a final order rejecting

Petitioner's request to be paid for services under the Pilot

Project.

DONE AND ENTERED this 30th day of October, 2001, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of October, 2001.

ENDNOTE

1/ Prior to Mrs. George's abrupt departure from the hearing,

she left documents enti tled, "Motion for the Expunction of

FAHIS Report Number 2000 - 110385 and Order for Children and

Family Services to pay Sharon Earl George a Fair and Decent

Wage for the 24/7 She Does Indeed Earn!" and "Reason for Motion

to Find in Favor of Petitioner." The Expunction of FAHIS

Report 2000 - 110385 is outside the scope of this proceeding. As

to Petitioner's Motion to Find in Favor of Petitioner, it

restated assertions made by Mrs. George at the hearing and was

reviewed in the preparation of the Recommended Ord er.

COPIES FURNISHED:

Sharon Earl George

518 Everitt Avenue, Lot 25

Panama City, Florida 32401

John R. Perry, Esquire

Department of Children

and Family Services

2639 North Monroe Street

Suite 252A

Tallahassee, Florida 32399 - 2949

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the dat e 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.