08-001812 Agency For Persons With Disabilities vs. Amanda And Co., Inc., D/B/A Loving Hearts Group Home Status: Closed Recommended Order on Wednesday, October 29, 2008.

Summary: Petitioner did not show clear and convincing evidence that Respondent failed to protect one of its residents from physical injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH )

DISABILITIES, )

)

Petitioner, )

)

vs. ) Case No. 08-1812

)

AMANDA AND CO., INC., d/b/a LOVING HEARTS GROUP HOME, )

)

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on August 6,

2008, in Lake City, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Julie Waldman, Esquire

Agency for Persons

with Disabilities

1621 Northeast Waldo Road

Gainesville, Florida 32609

For Respondent: Lloyd E. Peterson, Esquire

905 Southwest Baya Drive

Lake City, Florida 32025

STATEMENT OF THE ISSUE

The issue is whether Respondent should be subject to administrative penalties, up to and including revocation of its

group home license, for non-compliance with the residential

facility requirements of Chapter 393, Florida Statutes (2007).

PRELIMINARY STATEMENT

On or about February 13, 2008, Petitioner Agency for

Persons with Disabilities (Petitioner) issued an Administrative

Complaint against Respondent Amanda and Co., Inc. d/b/a Loving

Hearts Group Home (Respondent). The complaint alleged in Count

I that Respondent's employee had violated Section 393.13(3)(g),

Florida Statutes (2007), by physically injuring and/or failing

to protect a client from physical injury. In Count II, the

complaint alleged that Respondent failed to ensure that clients

were protected from physical injury.

On February 15, 2008, Respondent requested an

administrative hearing to contest the allegations in the

complaint. On April 11, 2008, Petitioner referred the hearing

request to the Division of Administrative Hearings.

Administrative Law Judge Lisa S. Nelson issued a Notice of

Hearing dated April 22, 2008. The notice scheduled the hearing

for June 2, 2008.

On May 27, 2008, Respondent filed an unopposed Motion for

Continuance. On May 29, 2008, Judge Nelson granted a

continuance and rescheduled the hearing for July 1, 2008.

On June 4, 2008, Respondent filed an unopposed Motion for

Continuance. On June 9, 2008, Judge Nelson granted a

continuance and rescheduled the hearing for August 6, 2008.

During the hearing, Petitioner presented the testimony of

two witnesses. Petitioner offered Exhibit Nos. A, B, and D

through I that were accepted as evidence. Petitioner's Exhibit

No. C was accepted as evidence to the extent that it does not

constitute inadmissible hearsay.

Respondent presented the testimony of three witnesses.

Respondent offered Exhibit Nos. A, C, and D that were accepted

as evidence to the extent they do not constitute inadmissible

hearsay.

The parties were unable to complete the presentation of all

the evidence on August 6, 2008. Accordingly, the undersigned

issued an Order Re-scheduling Hearing dated August 12, 2008.

The order scheduled the continued hearing for September 22,

2008.

On September 17, 2008, Petitioner filed an unopposed

Request to Cancel Hearing, advising the undersigned that neither

party intended to present further evidence. On September 19,

2008, the undersigned issued an Order Canceling Hearing.

The parties did not file a transcript of the proceeding.

Petitioner filed a Proposed Recommended Order on October 3,

2008. As of the date that this Recommended Order was issued,

Respondent had not filed proposed findings of fact and

conclusions of law.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the licensing and operation of foster care facilities, group

home facilities, and residential habilitation centers.

2. Respondent holds a group home facility license. The

group home is located in Lake City, Florida.

3. Ms. Amanda Houston is the operator of the group home.

Ms. Houston is responsible in that capacity for compliance with

statutes and rules relating to residential facilities.

4. At all times material here, A.D. was a vulnerable

17-year-old female who resided at the group home. A.D. is

mentally retarded and has significant behavior issues.

5. Ms. Nigeria Taiwan Wills was a trusted employee of the

group home for four or five years. On October 8, 2008,

Ms. Wills was responsible for the supervision and care of the

group home's disabled residents.

6. On October 8, 2008, Ms. Wills began her shift at

2:00 p.m. and worked until 8:00 p.m. During at least part of

that time, Ms. Wills was the only staff member present in the

home.

7. On October 8, 2007, while under the supervision of

Ms. Wills, A.D. suffered significant injury to her buttock area.

8. The next morning, Ms. Houston arrived at the group home

around 6:30 a.m. Ms. Houston woke A.D. who dressed herself.

Ms. Houston gave A.D. her medications. Ms. Houston did not

notice any difference in A.D.'s demeanor. A.D. seemed normal in

every way.

9. The group home had four residents. Three of the

clients, including A.D., rode a bus to school. On October 9,

2009, the bus arrived to pick up the clients at 8:10 a.m. It

left the facility at 8:20 a.m. Ms. Houston was not aware of

A.D.'s injury before the bus picked her up.

10. On October 9, 2008, Ms. Wills visited the group home

around 11:00 a.m. to pick up a piece of paper that she had left

there the night before. While at the group home, Ms. Wills

casually mentioned to Ms. Houston that she had an incident with

A.D. the night before, that it was no big deal, and that she

would tell Ms. Houston about it when she returned to work her

shift that evening. Ms. Wills then left the group home.

Ms. Wills did not have a home phone.

11. All supervisory employees of the group home are

trained to keep notes during every shift to record

chronologically all events occurring at the group home. If an

injury of any kind occurs, an employee is supposed to

immediately fill out an incident report and call Ms. Houston.

12. Ms. Houston knew that Ms. Wills had not filled out an

incident report the night before. Ms. Houston read Ms. Wills'

notes from the night before and, finding no reference to an

incident with A.D., mistakenly assumed that whatever had

happened truly was no big deal. This was not an unreasonable

conclusion given Ms. Wills' long-term employment with no

complaints and A.D.'s history of stealing and other behavior

problems.

13. In the mean time, Ms. Lanitra Sapp, a child protective

investigator for the Department of Children and Family Services,

received a call from A.D.'s school. Ms. Sapp subsequently

visited the school, interviewed A.D., and observed bruising to

her buttocks and upper thigh. Ms. Sapp concluded that the

bruising was consistent with physical abuse. Ms. Sapp then took

A.D. to her office.

14. When A.D. did not get off the bus after school,

Ms. Houston called the school, A.D.'s mother, and A.D.'s waiver

support coordinator. Ms. Houston was unable to locate A.D.

until she received a call from Ms. Sapp, asking Ms. Houston to

go to Ms. Sapp's office.

15. At Ms. Sapp's office, Ms. Houston and her husband,

Adam Houston, first learned about A.D.'s injury. Mr. and

Mrs. Houston were shocked at the degree of A.D.'s injury as

reflected in photographs. After a short meeting, A.D.

voluntarily rode with the Houstons to the group home. Ms. Sapp

followed in her car.

16. When the Houstons and Ms. Sapp arrived at the group

home, the police were already there. Ms. Wills was also there.

Ms. Houston left A.D. in the car with Mr. Houston before going

into the group home.

17. Ms. Wills talked to the police and Ms. Sapp in

separate interviews. At some point, Ms. Wills told the police

that she had spoken to Ms. Houston about the incident that

morning. Ms. Houston admitted to the police and Ms. Sapp that

Ms. Wills had made a reference to an incident that morning.

18. Ms. Wills never admitted that she spanked A.D. with a

belt. Ms. Houston placed Ms. Wills on administrative leave just

before the police handcuffed her and took her to jail.

Immediately thereafter, Ms. Houston prepared and sent an

official incident report to Petitioner and A.D.'s waiver support

coordinator.

19. A.D. wanted to remain at the group home. Her mother

and waiver support coordinator agreed. A.D. remained in that

environment until March 2008, when Respondent lost its status as

a Medicaid waiver provider.

20. Ms. Houston never let Ms. Wills return to the group

home. Instead, Ms. Houston paid Ms. Wills for one week of

earned wages and one week of vacation time. This was the final

pay check for Ms. Wills.

21. Within days, Ms. Houston took A.D. to see her

pediatrician for a medical evaluation. A week or so later,

Ms. Sapp took A.D. for an evaluation by the Department of

Children and Family Services child protection team. The

Department of Children and Family Services subsequently issued a

report containing verified findings of failure to protect

against Mr. and Ms. Houston and maltreatment/physical injury

against Ms. Wills.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2008).

23. The Administrative Complaint, as amended at the

hearing, charges Respondent with the failing to ensure that A.D.

was protected from harm. The complaint does not charge

Respondent with failing to report the incident of abuse as

required by Sections 39.201 and 415.1034, Florida Statutes

(2007). Accordingly, violations of Sections 39.201 and

415.1034, Florida Statutes (2007), relating to mandatory reports

of abuse, have not been considered here. See Trevisani v.

Department of Health , 908 So. 2d 1108 (1st DCA 2005)(punitive

action may be based only upon those offenses specifically

alleged in the administrative complaint).

24. Petitioner has the burden of proving by clear and

convincing evidence that Respondent's group home license should

be disciplined based on Respondent's failure to protect A.D.

from harm. See § 120.57(1)(j), Fla. Stat. (2007); Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern Company , 670 So. 2d 932 (Fla. 1996).

25. Section 393.067(13) states as follows in pertinent

part:

eatment of persons with

developmental disabilities.--

(1) SHORT TITLE.--This section shall

be known of the "The Bill of Rights of

Persons with Developmental Disabilities."

* * *

(3) RIGHTS OF ALL PERSONS WITH

DEVELOPMENTAL DISABILITIES.--The rights

described in this subsection shall apply to

all persons with developmental disabilities

whether or not such persons are clients of

the agency.

* * *

(g) Person with developmental

disabilities shall have a right to be free

from harm, including unnecessary physical,

chemical, or mechanical restraint,

isolation, excessive medication, abuse, or

neglect.

* * *

(4) CLIENTS RIGHTS.--For purposes of

this subsection, the term "client," as

defined in s. 393.063, shall also include

any person served in a facility licensed

under s. 393.067.

26. Florida Administrative Code Rule 65G-2.012 states as

follows in relevant part:

65G-2.012 Group Home Facility

Standards.

* * *

(5) Personnel Qualifications,

Requirements and Responsibilities.

* * *

(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.

* * *

(15) Discipline and Abuse. Each

client shall receive humane discipline.

* * *

(b) The facility shall take all

reasonable precautions to assure that no

client is exposed to, or instigates, such

behavior as might be physically or

emotionally injurious to him/herself or to

another person.

* * *

(d) Facility staff shall be

knowledgeable of provision of provisions of

the Bill of Rights of Persons with

Developmental Disabilities, Section 393.13,

F.S.

27. Section 393.0673, Florida Statutes (2007), states as

follows in pertinent 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:

* * *

3. Failed to comply with the

applicable requirements of this chapter or

rules applicable to the licensee; or

(b) The Department of Children and

Family Services has verified that the

licensee is responsible for the abuse,

neglect, or abandonment of a child or the

abuse, neglect, or exploitation of a

vulnerable adult.

28. In this case, Ms. Houston initially did not have a

reason to suspect that Ms. Wills had physically abused A.D.

Instead, Ms. Houston had every reason to believe that the

"incident with A.D." was not serious enough to be an event

requiring a mandatory report to the abuse hotline or even

included in Ms. Wills' notes from the prior evening.

29. Once Ms. Houston became aware of the abuse, she took

every precaution she could to cooperate with the authorities and

to protect A.D. This included placing Ms. Wills on

administrative leave and never letting her return to the group

home.

30. A.D. was not in any danger of further abuse after

Ms. Wills left the facility on the evening of October 8, 2008.

The evidence is not clear and convincing that Respondent’s group

home license should be disciplined.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order finding that

Respondent's license is not subject to discipline for failure to

protect.

DONE AND ENTERED this 29th day of October, 2008, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of October, 2008.

COPIES FURNISHED :

Julie Waldman, Esquire

Agency for Persons with Disabilities

1621 Northeast Waldo Road

Gainesville, Florida 32609

Lloyd E. Peterson, Jr., Esquire

905 Southwest Baya Drive

Lake City, Florida 32025

John Newton, General Counsel

Agency for Persons

with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

James DeBeaugrine, Executive Director

Agency for Persons

with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

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.