02-000085 Sunrise Opportunities, Inc.; Sunrise Communities, Inc.; And The Haven Center, Inc. vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, June 3, 2002.

Summary: Agency failed to establish legal authority for moratorium of placements at center with individually licensed group homes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNRISE OPPORTUNITIES, INC., )

SUNRISE COMMUNITIES, INC., AND )

THE HAVEN CENTER, INC., )

)

Petitioners, )

)

vs. ) Case No. 02 - 0085

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on March 18 - 19, 2002, in Miami, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Adm inistrative Hearings.

APPEARANCES

For Petitioner: Steven M. Weinger, Esquire

Helena Tetzeli, Esquire

Kurzban, Kurzban, Weinger

and Tetzeli, P.A.

2650 Southwest 27th Avenue

Second Floor

Miami, Florida 33133

For Respondent: Veronica E. Donnelly, Esquire

Stephanie A. Daniel, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether the Respondent, Department of Children and Families

(DCF), may impose a moratorium for new residents at The Haven

Center, Inc., for those wh o are enrolled in the Developmental

Services Home and Community - Based Services Waiver Program (DS

Waiver).

PRELIMINARY STATEMENT

On November 7, 2001, DCF issued a letter that declared a

temporary moratorium on placements at Sunrise at The Haven

Center. Th e basis for the moratorium was stated to be a

Settlement Agreement entered in Prado - Steiman v. Bush , Case

Number 98 - 6496 - CIV - Ferguson. More specifically, the Respondent

determined that the:

effect of the Court approval was to enjoin

the Department (and t he Agency for Health

Care Administration) from filling any

vacancies at places like the Haven Center

with individuals who receive funding for

services through the Developmental Services

Home and Community - Based Services Waiver (DS

Waiver).

The term length for the moratorium was indefinite. Notice

of the moratorium was provided to Pat Wear, who was described as

the Deputy Director for the Advocacy Center for Persons with

Disabilities, Inc. (Advocacy). The notice further identified

Advocacy as the Prado - St eiman class counsel.

Upon receipt of the notice, the Petitioners, Sunrise

Opportunities, Inc., Sunrise Communities, Inc., and The Haven

Center, Inc., timely filed a Petition challenging the

moratorium. The Petitioners dispute the Respondent's authority

t o impose a moratorium and to enforce its interpretation of the

Prado - Steiman settlement against The Haven Center. The Petition

was forwarded to the Division of Administrative Hearings for

formal proceedings on January 9, 2002.

At the hearing, the Petition ers presented testimony from

Sarah H. Blum, Carmen Gomez, Leslie W. Leech, David Raymond, and

Charles Auslander. The Petitioners' Exhibits 1 - 7 were received

in evidence.

The Respondent presented testimony from Danel Cebent. The

Respondent's Exhibits 2 - 22 were admitted into evidence.

By stipulation the parties agreed that, had Susan Dickerson

been called to testify in the cause, she would have stated that

at the time Prado - Steiman settlement was executed the Petitioner

was on a list of residential habili tation centers to be governed

by the agreement. Further, Ms. Dickerson would have testified

that she is unaware of any requirement for residential

habilitation centers to be separately licensed. Additionally,

the parties agreed that the Petitioners opera te at Naranja five

licensed group homes with a capacity of up to six individuals

each, together with a single building which is licensed as a

residential habilitation center, and that such was true both

before and after the Prado - Steiman case was filed and settled.

Further, that the Naranja group homes continue to receive

placements of residents under the DS Waiver program and have not

been affected by the moratorium imposed against The Haven

Center.

The transcript of these proceedings was filed on April 1 1,

2002. Thereafter the Petitioners requested and were granted an

extension of time within which to file a proposed recommended

order. Based upon the extension, the parties timely filed

proposed orders on May 1, 2002. The proposed orders have been

fully considered in the preparation of this order.

FINDINGS OF FACT

1. The Respondent is the state agency charged with the

responsibility of regulating residential facilities that provide

DS waiver services.

2. Sunrise Opportunities, Inc., Sunrise Communiti es, Inc.,

and The Haven Center, Inc., are members of the Sunrise group of

providers that serve individuals with developmental

disabilities.

3. Sunrise Opportunities, Inc., is a charitable,

tax - exempt entity that provides residential and day treatment

s ervices to individuals under the DS Waiver program.

4. The Haven Center, Inc., owns seven homes located on

23 - acres in Miami - Dade County, Florida. The homes located at

The Haven Center, Inc., are operated by Sunrise Opportunities,

Inc. Such homes ha ve been monitored and reviewed by the DCF on

numerous occasions. The reviews or inspections have never

revealed a significant deficiency. Moreover, historically the

DCF has determined that residents at The Haven Center, Inc.,

have received a high quality of care.

5. For some unknown time the parties were aware of a need

to move individuals residing at The Haven Center into community

homes in the greater South Miami - Dade County area.

Concurrently, it was planned that individuals in substandard

housing wo uld then be moved into The Haven Center. This

"transition plan" as it is called in the record would be

accomplished as improvements were completed to the Sunrise

properties. That the parties anticipated the transition plan

would be implemented as stated is undisputed.

6. Because it believed the transition plan had been agreed

upon and would be followed, Sunrise Opportunities, Inc.,

incurred a considerable debt and expended significant expenses

to purchase and improve homes in the South Miami - Dade County

area.

7. Additionally, DS Waiver participants were moved from

The Haven Center to the six - person homes in South Miami - Dade

County. In fact, over fifty percent of The Haven Center

residents have made the move. In contrast with the transition

plan, only 1 2 individuals were allowed to move into The Haven

Center.

8. Instead, DCF notified the Petitioners of a moratorium

prohibiting the placement of DS Waiver residents into The Haven

Center. This moratorium, represented to be "temporary," is

on - going and wa s unabated through the time of hearing. The

moratorium prompted the instant administrative action. Upon

notice of DCF's intention to impose a moratorium on The Haven

Center, the Petitioners timely challenged such agency action.

9. DCF based the moratori um upon an Order Approving

Settlement Agreement entered in the case of Prado - Steiman v.

Bush , Case No. 98 - 6496 - CIV - FERGUSON, by United States District

Judge Wilkie D. Ferguson, Jr. on August 8, 2001.

10. The Petitioners had objected to the approval of th e

Settlement Agreement in Prado - Steiman but the court overruled

the objectors finding they, as providers of services to the DS

Waiver residents, did not have standing in the litigation.

11. The Prado - Steiman case was initiated by a group of

disabled indiv iduals on behalf of the class of similarly

situated persons who claimed the State of Florida had failed to

meet its responsibility to such individuals under Federal law.

Without detailing the case in its totality, it is sufficient for

purposes of this cas e to find that the Prado - Steiman Settlement

Agreement imposed specific criteria on the State of Florida

which were to be met according to the prospective plan approved

and adopted by the court.

11. At the time the Prado - Steiman case was filed, The

Haven Center was licensed as a residential habilitation center.

After the Settlement Agreement was executed by the parties in

Prado - Steiman , but before the court entered its Order Approving

Settlement Agreement, the licensure status of The Haven Center

changed . Effective June 1, 2001, The Haven Center became

licensed as seven group homes together with a habilitation

center.

12. Pertinent to this case are specific provisions of the

Prado - Steiman Settlement Agreement (Agreement). These

provisions are set for th below. First, regarding group home

placements, the Agreement provides that:

The parties agree that they prefer that

individuals who are enrolled in the Waiver

[DS Waiver] live and receive services in

smaller facilities. Consistent with this

preference , the parties agree to the

following:

1. The Department [DCF] will target choice

counseling to those individuals, [sic]

enrolled on the Waiver who presently reside

in residential habilitation centers (where

more than 15 persons reside and receive

service s). The focus of this choice

counseling will be to provide information

about alternative residential placement

options. The Department will begin this

targeted choice counseling by December 1,

2000, and will substantially complete the

choice counseling b y December 1, 2001.

* * *

4. The Department and the Agency [Agency

for Health Care Administration] agree that,

in the residential habilitation centers, if

a vacancy occurs on or after the date this

agreement is approved by the Court, the

Depa rtment will not fill that vacancy with

an individual enrolled on the Waiver .

(Emphasis added)

13. None of the individually licensed group homes at The

Haven Center is authorized to house more than 15 persons. All

of the group home licenses at The Haven Center were approved

before the Prado - Steiman Court approved the Agreement.

14. The Agreement also provides that the parties:

. . . have agreed that the Court may retain

jurisdiction of this litigation until

December 31, 2001, at which time this case

w ill be dismissed with prejudice. The

Plaintiffs may seek to continue the

jurisdiction of the Court and to pursue any

of the relief requested in this lawsuit only

if they can show material breach as

evidenced by systemic deficiencies in the

Defendants' imp lementation of the Plan of

Compliance. In any motion to continue the

jurisdiction of the Court, Plaintiffs must

demonstrate that alleged breaches and any

proposed cure were fully disclosed to the

state defendants consistent with the "Notice

and Cure" prov isions set forth below in

paragraphs 7 - 10 below, that the action

requested by the plaintiffs is required by

existing law, and the State Defendants have

refused to take action required by law.

Such relief may not be sought after the

scheduled dismissal of the litigation.

Absent the allegation of material breach in

a pending motion, the Court will dismiss

this lawsuit with prejudice on December 31,

2001. (Emphasis added)

15. Also pertinent to this case, the Agreement provides:

19. The parties' breach, or alleged breach,

of this Agreement (or of the terms contained

herein) will not be used by any party as a

basis for any further litigation.

16. "Systemic problems or deficiencies" is defined by the

Agreement to mean:

problems or deficiencies which are com mon in

the administration of the Waiver,

inconsistent with the terms of this

Stipulated Agreement, and in violation of

federal law. Isolated instances of

deficiencies or violations of federal law,

without evidence of more pervasive conduct,

are not "syste mic" in nature.

State otherwise, a problem or

deficiency is systemic if it requires

restructuring of the Florida Developmental

Services Home and Community - Based Services

Waiver program itself in order to comply

with the provisions of federal law regarding

the Waiver; but that it is not "systemic" if

it only involves a substantive claim having

to do with limited components of the

program, and if the administrative process

is capable of correcting the problem.

17. After the Agreement was adopted the Respond ent advised

Petitioners to continue with the transition plan. On or about

September 1, 2001, the Petitioners and the Respondent entered

into contracts for the group homes operated at The Haven Center.

Each home is properly licensed, has honored its contr acts to

provide services to disabled individuals, and has complied with

state licensure laws.

18. A licensed Residential Habilitation Center may not

have a licensed capacity of less than nine.

19. Advocacy issued a letter dated March 8, 2002, that

allege d systemic problems constituting material breaches of the

Agreement. Among the cited alleged deficiencies is the failure

of the state to ensure

. . . that locally - licensed providers

receiving waiver funds for providing group -

home services in fact are pro viding services

in that setting rather than in institutional

settings. Examples include:

a) A former residential habilitation

center known as Haven is now licensed as a

group home in District 11 (Miami/Dade) and

receives HCBS waiver funds.

20. There is no evidence that The Haven Center is

providing services in any setting other than as licensed by the

Respondent. That is, there is no evidence it is not operating

as individually licensed group homes.

21. Further, Advocacy had actual knowledge of the in stant

administrative action. In short, it did not attempt to

participate in the Petitioners' challenge to the moratorium.

22. DCF has imposed a moratorium on no other licensed

group home in the State of Florida. The group homes at The

Haven Center are the sole targets for this administrative

decision.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Section 120.57, Florida Statutes.

24. As the proponent of the affirmative of the issue, the

Respondent bears the burden of proof in this cause to establish

the legal basis for the moratorium it has imposed on the

Petitioners. See Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla . 1st DCA 1977);

Florida Department of Transportation v. J.W.C. Co. , 396 So.2d

778, 788 (Fla. 1st DCA 1981); McDonald v. Department of

Professional Regulation, Board of Pilot Commissioners , 582 So.

2d 660,670 (Fla. 1st DCA 1991). It maintains it has met t hat

burden by establishing the terms of the Agreement adopted by the

Prado - Steiman Court. As is explained below, it has not.

25. First, the sole authority cited by Respondent for the

moratorium is the federal case settlement. The Respondent does

not arg ue that provisions of Florida law governing group homes

would authorize the moratorium. Secondly, no rule or policy

adopted by the Respondent in furtherance of Florida law

authorizes the moratorium.

26. The implementation of the moratorium is DCF's

inte rpretation of the Prado - Steiman Settlement Agreement. On

its face, such interpretation is inconsistent with the terms of

the Agreement. Once The Haven Center was licensed as individual

group homes, the Agreement did not apply to them. If the

Petitioners ' lacked standing to challenge the proposed agreement

(as suggested by the Order of the Prado - Steiman court), clearly

as group homes they would not be able to challenge the

enforcement of the Agreement as group homes are not within the

context of the Agree ment.

27. The Agreement contemplated that where administrative

remedies were available, there would be no systemic deficiency.

Further, the Agreement did not provide a remedy for further

court intervention absent a material breach establishing

systemic deficiencies. The Respondent does not allege facts to

support such conclusion.

28. Finally, the Plaintiffs in the Prado - Steiman

proceeding sought to promote small residential placements for DS

Waiver participants. The concept of warehousing large group s in

an institutional setting was opposed. Thus, larger residential

habilitation centers were opposed. In this case, the

Petitioners have established that The Haven Center is operating

as individual group homes. As such there is no evidence to

support a conclusion that the type of facility opposed by the

Prado - Steiman Plaintiffs is operating at the Petitioners' site.

Accordingly, as a matter of law, having no basis to support the

action taken, the moratorium on placements at The Haven Center

should be lifted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Respondent, Department of

Children and Family Services, enter a Final Order lifting the

moratorium on placements of DS Waiver participants at The Haven

Center's group homes.

DONE AND ENTERED this 3rd day of June, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apal achee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of June, 2002.

COPIES FURNISHED:

Paul Flounlack er, 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 Sevices

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

Veronica E. Donnelly, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Steven M. Weinger, Esquire

Kurzban, Kurzban, Weinger & Tetzeli, P.A.

2650 Southwest 27th Avenue, Second Floor

Miami, Florida 33133

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 ag ency that

will issue the Final Order in this case.