11-001620 Agency For Persons With Disabilities vs. Help Is On The Way, Inc. Status: Closed Recommended Order on Friday, February 3, 2012.

Summary: APD did not prove grounds to non-renew licenses of two group homes. One charge not proven; proof of other charge was of single oversight by good emloyee, for which licensee took appropriate corrective action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH )

DISABILITIES , )

)

Petitioner , )

)

vs. ) Case No. 11 - 1620

)

HELP IS ON THE WAY, INC. , )

)

Respondent . )

)

AGENCY FOR PERSONS WITH )

DISABILITIES , )

)

Petitioner , )

)

vs. ) Case No. 11 - 2455

)

TIMBERGREEN GROUP HOME, )

HELP IS ON THE WAY, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on October 15, 201 1 , and November 7, 2011, by video

teleconference at sites in Tallahassee and Lakeland , Florida,

before Administrative Law Judge Elizabeth W. McArthur of the

Division of Administrative Hearings.

APPEAR ANCES

For Petitioner: Stacy N. Robinson, Esquire

Department of Children and Families

200 North Kentucky Avenue, Suite 328

Lakeland , Florida 338 01

For Respondent: Charles D. Bavol, Esquire

The Bleakley Bavol Law Firm

1517 0 North Florida Avenue

Tampa, Florida 33613

STATEMENT OF THE ISSUE

Whether Respondent's licenses to operate two group homes

should be renewed, or whether renewal should be denied for the

reasons charged in the a dministrative c omplaints issu ed by

Petitioner.

PRELIMINARY STATEMENT

Respondent, Help is on the Way, Inc. (Respondent or HIOTW) ,

filed with Petitioner, Agency for Persons with Disabilities

(Petitioner or APD), two applications for renewal of licenses to

operate two group homes know n as Lake Miriam Group Home (Lake

Miriam) and Timbergreen Group Home (Timbergreen), in Lakeland,

Florida. On March 25, 2011, Petitioner issued a Notice of

Application Denial with regard to Respondent's application to

renew the Lake Miriam license. On Apr il 29, 2011, Petitioner

issued a Notice of Application Denial with regard to

Respondent's application to renew the Timbergreen license. In

both instances, Petitioner has acknowledged that the renewal

application denials are tantamount to revocations in th at the

renewal denials are predicated on past incidents charged as

violations of group home licensure standards. Therefore, as

Petitioner agreed, the denial notices should be, and are,

considered administrative complaints for purposes of this

proceeding. 1 /

Respondent timely requested administrative hearings to

contest the charges in the administrative complaints. The two

separate cases were forwarded to the Division of Administrative

Hearings for assignment of an Administrative Law Judge and were

subse quently consolidated for hearing. Following several

continuances, the consolidated cases were ultimately scheduled

for final hearing on October 15, 2011, and were transferred to

the undersigned, who conducted the hearing as rescheduled. When

the parties were unable to complete the hearing in the single

day reserved, an additional hearing day was scheduled for

November 7, 2011, and the final hearing was concluded then.

At the final hearing, Petitioner presented the testimony of

James Rheaume, Ronald Thomp son, Melody Taylor, and Heather

Monteath. Petitioner's Exhibits 1 through 10 were admitted in

evidence. Respondent presented the testimony of LaDonna

Bennett, O.J. Bennett, Jeannette Estes, Silas Harris, Aubrey

Bell, Schellie Fanfan - Sissoko, and Samuel C ooper. Respondent's

Exhibits 2, 3, 5 through 9, 12 through 16, 19, 20, 22, 25

through 28, 32, 33, 39, 40, 44, 47, 49, 50, 52 through 56, 58,

59, 61 through 65, 76, and 105 were admitted in evidence. In

addition, Respondent offered the deposition T ranscri pts of

Heather Monteath, Melody Taylor, Jeannette Estes, and Frank

Davis as Respondent's Exhibits 82, 83, 84, and 104,

respectively, in addition to , or in lieu of , live testimony.

The deposition T ranscripts were admitted in evidence subject to

rulings on Petitioner's objections, which were filed as

permitted after the hearing. Rulings on Petitioner's objections

to the deposition testimony are set forth in an A ppendix to this

Recommended Order.

The two - volume Transcript of the October 15, 2011, port ion

of the final hearing was filed on November 4, 2011; an

additional Transcript volume of the November 7, 2011, conclusion

of the final hearing was filed on December 5, 2011. On

December 27, 2011, both parties timely filed Proposed

Recommended Orders, wh ich have been carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. APD is the state agency charged with licensing and

regulating group home facilities. The statewide headquarters,

or "central office," is in Tallahassee. Regional offices carry

out the licensing and regulatory functions within their

designated regions, or "areas," in coordination with the central

office. APD Area 14 covers Polk, Hardee, and Highlands

Counties.

2. Beginning in 2007 and at all times mate rial to this

proceeding, HIOTW has been a provider of various residential and

non - residential services to developmentally disabled persons in

Lakeland, Polk County, Florida, within APD Area 14. In 2007,

HIOTW was licensed by the Agency for Health Care Adm inistration

(AHCA) to provide non - residential homemaker and companion care

services. In November 2008, HIOTW became licensed by the APD

Area 14 office to operate Paces Trail Group Home to provide

residential habilitation services to developmentally disabl ed

adults. Shortly thereafter, HIOTW was licensed by the APD

Area 14 office to operate its second group home, Hampton Group

Home.

3. HIOTW was licensed by the APD Area 14 office to operate

Timbergreen in May 2009. In February 2010, the APD Area 14

offi ce issued a license to HIOTW to operate its fourth group

home in Lakeland -- Lake Miriam. The group home license renewal

of these two group homes, each with a capacity to serve six

adult male residents with developmental disabilities, is at

issue in this pr oceeding.

4. After initial licensure of a group home, the license

must be renewed annually. All of HIOTW's group homes

successfully have gone through the license renewal process one

or more times, except for Lake Miriam, which is seeking its

first lice nse renewal.

5. On November 12, 2010, HIOTW submitted an application to

the APD A rea 14 office to renew its license to operate Lake

Miriam. On March 3, 2011, HIOTW submitted an application to

renew its license to operate Timbergreen.

6. By letter date d March 25, 2011, Petitioner denied the

Lake Miriam license renewal application (March 25 Denial

Letter). Petitioner relies on the following charges alleged in

the March 25 Denial Letter as the basis for Petitioner's

decision:

On or about April 14, 2010, an employee of

the applicant left two vulnerable adult

group home residents alone in a car for at

least ten minutes while that employee

conducted business inside a bank. One of

the adult residents who was left

unsupervised in the car had a history of

sexu ally molesting children and other

vulnerable adults. The other resident who

was left unsupervised in the car was

non - verbal. This instance threatened the

health, safety, and well being of the

applicant's residents in violation of page

A - 8 of the Developm ental Disabilities Waiver

Services Coverage and Limitations Handbook

and Rule 65G - 2.012(15)(b), F.A.C.

On or about September 29, 2010, an employee

of the applicant was transporting group home

residents when one of the residents left the

vehicle without th e driver's knowledge. The

vulnerable adult resident was later located

at a neighborhood store. This instance

threatened the health, safety, and well

being of the applicant's residents in

violation of page A - 8 of the Developmental

Disabilities Waiver Serv ices Coverage and

Limitations Handbook and Rule 65G -

2.012(15)(b), F.A.C.

7. The March 25 Denial Letter also alleged that HIOTW

failed to submit a current approved emergency management plan as

a third reason to deny the license renewal application.

Howev er, Petitioner abandoned the third charge at the outset of

the final hearing. Petitioner sought to support its proposed

denial of the Lake Miriam license renewal application solely as

a penal measure based on the two alleged incidents quoted above.

As su ch, but for these two alleged incidents, Petitioner

acknowledges that Lake Miriam's license renewal application is

otherwise entitled to approval.

8. By letter dated April 29, 2011, Petitioner denied the

Timbergreen license renewal application (April 29 Denial

Letter). The April 29 Denial Letter set forth the same two

charges that were alleged in the March 25 Denial Letter as the

basis for Petitioner's decision. In other words, the same two

incidents were asserted as grounds for denying both the Lake

Mi riam license renewal application and the Timbergreen license

renewal application. But for these two incidents, Timbergreen's

license renewal application, like Lake Miriam's application, is

otherwise entitled to approval.

First A lleged Incident (on or abou t April 14, 2010 )

9. The credible evidence established the following facts

relevant to the first charged incident. In early April 2010, an

employee of HIOTW's licensed companion care service, Frank

Davis, was providing companion care to R.O., a developme ntally

disabled adult. R.O. was not a resident of any HIOTW group

home. Instead, R.O. received only non - residential companion

services through HIOTW from its employee Frank Davis. As

previously noted, companion care services are licensed and

regulated b y a different agency, AHCA.

10. R.O. was classified as developmentally disabled due to

mild mental retardation and behavioral problems. R.O. had a

history of sexually abusing children and vulnerable adults.

R.O. also had a known tendency of "telling big whoppers," i.e.,

he was known to be a habitual liar.

11. R.O. apparently told someone two stories of alleged

incidents involving his companion, HIOTW employee Frank Davis.

On April 14, 2010, the person to whom R.O. told the stories

reported the two allege d incidents to the hotline operated by

the Department of Children and Families (DCF), which fields

reports of possible abuse or neglect. 2/ One story told by R.O.,

as reported to DCF, was that Mr. Davis had left R.O. alone with

Mr. Davis's three - year - old d aughter. The other story told by

R.O., as reported to DCF, was that Mr. Davis had left R.O. alone

in a car with a non - verbal vulnerable adult for a period of time

while Mr. Davis went into a bank to conduct some business. If

true, these allegations of R. O. allegedly being left alone with

a child in one instance and with a non - verbal vulnerable adult

in the other instance would be of great concern. Both the child

and the non - verbal vulnerable adult with whom R.O. was allegedly

left alone would have to be considered at great risk of abuse by

R.O., given R.O.'s known history of sexually abusing both

children and vulnerable adults.

12. With regard to R.O.'s first story, involving

Mr. Davis's three - year - old daughter, a DCF adult protective

investigator (API) w as able to quickly determine that the

allegation was completely baseless. In screening this

allegation to determine if a formal investigation was warranted,

the API spoke with R.O. and then with Samuel Cooper, one of the

owners of HIOTW, on April 15, 2010 , the day after the hotline

call. Mr. Cooper provided a detailed description of the

physical appearance of Frank Davis's daughter. When

Mr. Cooper's description of Mr. Davis's daughter was compared to

R.O.'s description of the girl with whom he was suppo sedly left

alone, the two descriptions were so vastly different that the

API was able to, and did, immediately determine that R.O. had

fabricated the story, and the matter was closed without a formal

investigation.

13. The same API conducted an investigati on of R.O.'s

second story that he was left in Mr. Davis's car with a

non - verbal vulnerable adult while Mr. Davis went into a bank.

However, the API did not mention this story when he spoke with

Mr. Cooper, nor did the API inform anyone from HIOTW that he was

conducting a formal investigation. In conducting his

investigation, the API spoke with R.O., twice with Mr. Davis,

and with O.J. Bennett, another owner of HIOTW.

14. HIOTW initially learned of R.O.'s story about the bank

trip by a phone call from R.O .'s waiver support coordinator.

Mr. Bennett immediately investigated the matter, speaking with

Mr. Davis and also with the bank manager who was present and had

personally observed the events that day. Mr. Bennett's report

from his investigation was that when Mr. Davis drove up to the

bank with R.O., he left R.O. in the car only to walk about nine

feet from the car to the bank's glass entrance area. Mr. Davis

signaled to a bank employee who came to the door. Mr. Davis

told the employee he wanted to set u p an account to make direct

deposits of his paycheck. When Mr. Davis was told he would have

to come into the bank and it would take a few minutes, Mr. Davis

went back to the car for R.O. and brought him into the bank to

wait while Mr. Davis set up the acc ount. R.O. remained in

Mr. Davis's sight at all times.

15. Based on Mr. Bennett's report, which he reviewed with

Mr. Cooper, HIOTW determined an unusual incident report (UIR)

was not required, because there was no reason to suspect neglect

of R.O. Severa l weeks later, when HIOTW learned from an APD

employee that DCF was conducting a formal investigation, HIOTW

submitted a UIR that set forth the details of Mr. Bennett's

investigation and concluded that R.O. had been in Mr. Davis's

sight and adequately supe rvised at all times. The APD Area 14

administrator confirmed in her testimony that if the facts were

as Mr. Bennett found them to be in his investigation, there

would not have been inadequate supervision , and there would have

been no reason to submit a UI R.

16. Of greatest significance with regard to R.O.'s story

about the bank incident, the API determined that R.O. had lied

about being left with a non - verbal vulnerable adult. Instead,

the API found that Mr. Davis drove to a bank with R.O., and no

one els e, in the car.

17. The DCF investigator's report summarized the differing

versions of events told to him by R.O. and by Mr. Davis. R.O.'s

version was that Mr. Davis left him in the car for the whole

time that he went into the bank. Of course, R.O. also s aid that

he was left with another adult, and that was not true.

Therefore, R.O.'s statement to the DCF investigator could not be

considered credible or reliable.

18. According to the DCF investigator, Mr. Davis told him

that he left R.O. alone in the car to go into the bank, but came

back out of the bank to get R.O., who he then brought into the

bank to wait while he conducted his business. However,

Mr. Davis testified that he only told the DCF investigator that

he walked up to the bank while R.O. was in the car.

19. Mr. Davis's version of what happened and what he told

the DCF investigator is more credible than the DCF

investigator's report of what Mr. Davis told him. Mr. Davis's

version was corroborated by the hearsay account of the bank

manager, who told Mr. Bennett that Mr. Davis brought R.O. in the

bank with him, only having left R.O. alone to walk up to the

bank entrance. The bank manager confirmed Mr. Davis's testimony

that R.O. was in Mr. Davis's sight at all times.

20. In crediting Mr. Davis's version of events,

corroborated by the bank manager, the undersigned finds it

significant that Mr. Bennett told the DCF investigator about the

bank manager eyewitness, and Mr. Bennett was under the

impression that the DCF investigator would follow up by c alling

the bank manager. But the DCF investigator did not attempt to

interview anyone at the bank, despite the fact that persons at

the bank would have been the only other eyewitnesses besides

Mr. Davis, who had a self - interest in the incident, and R.O.,

the habitual liar whose other story about Mr. Davis had been

proven false.

21. Petitioner did not undertake its own investigation of

the facts, either at the time of the incident or at the time it

was considering whether to rely on the incident as grounds to,

in effect, revoke two of HIOTW's group home licenses. Instead,

according to the area administrator for APD Area 14, Petitioner

simply relied on the DCF investigation report. Indeed, the area

administrator did not even seem to understand the DCF repo rt,

because at the hearing, she was adamant in her belief that DCF

confirmed the allegation that Mr. Davis left R.O. in a car with

a vulnerable non - verbal adult group home resident. The area

administrator conveyed her misimpression to the central office

i n discussions to consider whether to non - renew two HIOTW group

home licenses based on this incident. Ultimately at hearing,

the area administrator conceded that she was improperly

interpreting the DCF report, thinking that the allegation

portion of the re port contained the actual DCF findings. Even

so, she steadfastly (and erroneously) asserted that she did not

give any false information to the central office regarding

HIOTW. 3/

22. In addition to the misimpression conveyed about the

R.O. incident, the ar ea administrator testified that she had an

employee convey numerous reports of allegations or suspicions of

HIOTW improprieties to the central office in a single packet for

the purpose of a decision on whether to renew the two HIOTW

group home licenses. T he area administrator explained other

information about allegations and suspicions were sent in the

same package so that the central office could also consider

whether to terminate HIOTW's Medicaid waiver provider agreement

at the same time. However, she admitted that the whole packet

of material was sent for the purpose of review and a decision on

whether to non - renew HIOTW's two group home licenses. As such,

it would be difficult to ignore the extraneous allegations when

making decisions regarding the l icense renewal applications ,

" [o] f course, you have all of that in your mind[.]" The actual

transmittal package to the central office was not produced,

apparently because it was sent by electronic mail , and there

were some APD email system problems that g ot in the way of

producing the email transmittal package. Nonetheless, the area

administrator's description of what she believes was sent in a

single package to the central office was sufficient to paint the

picture of a litany of negative missives regard ing HIOTW,

intended , in part , to support the area administrator's

recommendation to deny license renewal. 4/

23. Petitioner did not allege in the administrative

complaints and did not prove at the hearing that HIOTW itself

was blameworthy for the R.O. i ncident.

24. The APD Area 14 administrator testified that in

recommending non - renewal of the two HIOTW group home licenses, a

significant factor that she took into account was that HIOTW

failed to promptly submit a UIR to report the R.O. incident.

The fa cts found with respect to the R.O. incident do not

demonstrate that a UIR was required. Moreover, HIOTW was not

charged, in either administrative complaint, with a violation of

its UIR reporting obligations.

25. The DCF incident report concluded with a v erified

finding of inadequate supervision. The DCF investigator

testified that it was his finding that "[p]rimarily, Mr. Davis

was responsible for the inadequate supervision" of R.O. When

asked whether HIOTW was also responsible as Mr. Davis's

employer, the investigator said, "being his employer, and

trainer, yes." However, neither the DCF investigator , nor

Petitioner , presented any evidence to suggest that HIOTW was

negligent in its hiring, training, or supervision of its

companion care employees , gener ally , or Mr. Davis , in

particular. Nor was there any evidence that HIOTW failed to

appropriately respond to the R.O. incident once it was made

aware of the incident.

26. The DCF incident report found that Mr. Davis was an

appropriately screened employe e with no adverse history.

Petitioner presented no evidence to the contrary.

27. Both the DCF investigator and the area administrator

for APD Area 14 concluded that HIOTW took appropriate action

regarding the R.O. incident, by removing Mr. Davis from s erving

as R.O.'s companion and by putting Mr. Davis through additional

"zero - tolerance" training. Mr. Davis's employment was

terminated shortly thereafter for reasons unrelated to the R.O.

incident.

28. Although the DCF incident report verified a finding of

inadequate supervision, the report concluded that the overall

risk associated with the finding was low because of appropriate

corrective action taken by HIOTW. 5/ The area administrator for

APD Area 14 candidly admitted at the final hearing that HIOTW

h andled the R.O. incident appropriately and took corrective

action that was deemed sufficient by APD and alleviated any

health and safety concerns. Inexplicably, she continued to

support the charges in the two denial letters, which alleged

that the R.O. in cident "threatened the health, safety, and well

being of the applicant's residents," because R.O., with his

history of being sexually abusive, had allegedly been left alone

with a vulnerable, non - verbal adult group home resident.

29. Since the R.O. incide nt did not involve any HIOTW

group home residents, but rather, involved non - residential

services provided under HIOTW's companion care license, one

would expect that if licensure disciplinary action was warranted

against HIOTW at all for this incident, it would have been

initiated by AHCA as the licensing agency for companion care

services. No evidence was presented that AHCA took any

disciplinary action against HIOTW's companion care license.

Instead, the evidence established that HIOTW's companion care

license remained in good standing as of the final hearing, more

than one and one - half years after the R.O. incident.

30. Notwithstanding APD's knowledge in June 2010 of the

DCF report and findings regarding the R.O. incident, APD

proceeded to renew annual licenses for the period of October 1,

2010, through September 30, 2011, for two other HIOTW group

homes -- Pace's Trail Group Home and Hampton Group Home. The

license certificates state that the facilities comply with the

licensure rules of APD. No evidenc e was presented that APD

issued administrative complaints seeking to revoke these group

homes' licenses; however, the area administrator made clear that

she did not intend to renew any licenses for any HIOTW group

homes in the future.

Second Alleged Incide nt (on or about September 29, 2010)

31. The facts regarding the second alleged incident

involving HIOTW employee Donyell Goodman, were not disputed. At

the time of the incident, Ms. Goodman had been employed by HIOTW

for three years, with a very good, un blemished employee record.

On the day in question, she was serving as a van driver to

transport several HIOTW companion care clients to various sites

within the local community. E.K. was one of those clients

receiving companion care services that day; E. K. also was a

resident of HIOTW's Lake Miriam Group Home. E.K. is

developmentally disabled due to his diagnosis of mental

retardation.

32. Ms. Goodman stopped to let off one client, and she

watched the client walk to the appropriate destination and go

inside. She then resumed driving. When she had driven for

about five minutes, she glanced in her rear view mirror and

realized that E.K. was not there. Ms. Goodman immediately

called LaDonna Bennett, the third owner of HIOTW, to report that

E.K. must ha ve snuck out of the van at her last stop, and she

was going back to find him. Ms. Bennett also headed over to

where Ms. Goodman said she had stopped, to assist.

33. When Ms. Goodman returned to the site of her last

stop, she found E.K. there, inside the corner store. E.K. was

fine and returned to the van without incident. E.K. apparently

admitted to sneaking out of the van, saying he just wanted some

fresh air. The entire incident spanned about ten minutes.

34. Ms. Bennett and Ms. Goodman both immedia tely prepared

and submitted UIRs to report the incident. Ms. Goodman received

a written reprimand in her HIOTW personnel file and was

suspended for several days. When she resumed work, she

underwent additional training, was removed from the van driver

po sition , and reassigned to the "third shift" with no direct

interaction with residents.

35. The UIR reports triggered a DCF investigation. The

AIP who conducted the investigation confirmed the facts that

were set forth in the two UIRs. The AIP's investi gation

included an assessment of E.K. at the Lake Miriam Group Home

where E.K. was a resident. The DCF incident report concluded as

follows:

Victim Safety Factors Implications: No

implications for the [victim's] safety.

[Perpetrator] Factors Implicati ons: Based

on the informaiton [sic] rec'd, API has

determined the [adult perpetrator] to pose

no threat to the [victim]. No implication

[sic] for the [victim's] safety.

Facility Factors Implications: Based on the

[victim] to the grouphome [sic], API ha s

determined the [victim] to not be at any

risk.

The API found that the overall safety assessment was low;

however, based on the UIRs and interviews with Ms. Goodman and

Ms. Bennett, the incident report concluded with a verified

finding of inadequate supe rvision.

36. The API who conducted the investigation testified at

hearing and confirmed that the inadequate supervision finding

was directed to Ms. Goodman. When asked if HIOTW was also

responsible because it was Ms. Goodman's employer, the API said

he d id not know and could not answer that question.

37. Petitioner did not allege in the administrative

complaints, and did not prove at the hearing, that HIOTW itself

was blameworthy for the E.K. incident.

38. Neither the DCF investigator , nor Petitioner , o ffered

any evidence that HIOTW had negligently hired, trained, or

supervised its employees, including Ms. Goodman in particular.

39. Both the DCF investigator and the APD Area 14 area

administrator agreed that HIOTW acted appropriately in response

to th e E.K. incident to alleviate any concerns about health and

safety, by imposing appropriate discipline against Ms. Goodman

for her lapse that caused the incident , and by taking steps to

ensure no reoccurrence of the incident.

40. In 2011, well after APD h ad knowledge of the DCF

reports and findings on both the R.O. and E.K. incidents, APD

issued a series of temporary or conditional licenses to both

Lake Miriam and Timbergreen during the license renewal process

to give HIOTW time to respond to certain ident ified omissions in

the renewal applications, such as dental records, fire

inspection reports, and the like. The temporary and conditional

license certificates issued in February and March 2011 state on

their face that the facilities comply with the licens ure rules

of APD.

41. According to the APD Area 14 administrator, each of

the DCF reports on the R.O. and E.K. incidents resulted in "a

verified abuse finding." The area administrator testified that

any DCF report resulting in a verified abuse finding is

classified as a Class I offense, which is the most serious class

of offenses and is sufficient, without more, to give APD legal

authority to deny licensure or renewal of a license to a

licensed applicant named in the report.

42. Yet, despite the verified finding regarding the R.O.

incident, Petitioner did not deny license renewal applications

for other HIOTW group homes. Despite the verified findings in

both the R.O. and E.K. incidents, Petitioner issued temporary

and conditional licenses to Timbergreen and Lake Miriam during

the license renewal process. Thus, Petitioner has not exercised

its discretion consistently in dealing with HIOTW.

43. Petitioner has not exercised its discretion

consistently in contexts far more egregious than the two

incidents ch arged here. For example, Petitioner acknowledged

that a recent incident of abuse and neglect, resulting in the

death of a group home resident, did not trigger action by

Petitioner to take away all of the group home licenses held by

the licensee. Instead, Petitioner only acted to suspend the

license of the specific group home where the deceased resident

had resided. Petitioner did not attribute this very serious

incident to all facilities licensed by the same entity.

44. It would be unreasonable for APD to automatically,

without discretion, equate all verified findings -- whether of

abuse or neglect, whether deemed low risk or high risk, whether

risk of death or imminent bodily injury was found or not found.

A protracted period of abuse or neglect that act ually causes

death of a group home resident is on a different plane, in terms

of seriousness, from a brief employee lapse in which an

individual is not caught when he sneaks away, but is recovered

without harm or incident ten minutes later. No explanation was

offered by Petitioner as to why, in the more serious situation

where a verified incident resulted in death, action was not

taken to revoke all group home licenses held by the licensee,

whereas here, two incidents verified as low risk situations by

DCF (one of which was not proven at the hearing), would cause

Petitioner to act more harshly.

CONCLUSIONS OF LAW

45 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57( 1), Fla. Stat. (2011).

46 . As Petitioner acknowledges, this is a penal action in

which Petitioner bears the burden of pleading and proving the

alleged violations by clear and convincing evidence. Dep't of

Banking & Fin . v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla.

1996) .

47. As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the 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 established.

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

v. Walker , 492 So. 2d 797, 800 (Fla. 4th DCA 1983) ; a ccord

Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc. , 590

So. 2d 986, 988 (Fla. 1st DCA 1991) ) ("Alth ough this standard of

proof may be met where the evidence is in conflict, . . . it

seems to preclude evidence that is ambiguous").

48. It is incumbent on Petitioner to plead the facts and

law relied on to charge Respondent in this penal proceeding;

Petiti oner cannot impose discipline for violations not charged

in the administrative complaints. United Wisconsin Life Ins .

Co. v. Office of Ins . Reg . , 849 So. 2d 417, 422 (Fla. 1st DCA

2003); Cottrill v. Dep 't of Ins . , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996) ; Willner v. Dep't of Prof. Reg., Bd. of Med . , 563

So. 2d 805, 806 (Fla. 1st DCA 1990).

49. The administrative complaints charge Respondent with

violating group home licensure requirements set forth in section

393.13(3)(g), Florida Statutes (2009) 6/ and p age A - 8 of the

Florida Medicaid Developmental Disabilities Waiver Services

Coverage and Limitations Handbook (Handbook), incorporated by

reference in Florida Administrative Code Rules 59G - 13.083(2) and

65G - 2.012(15)(b) . Petitioner relies on the provision in section

393.0673(2) that authorizes Petitioner to deny applications for

license renewal based on the applicant's failure to comply with

applicable requirements in the group home licensure statute and

rules.

50 . Section 393.13(3)(g) provides that "[p] ersons with

disabilities shall have a right to be free from harm, including

unnecessary physical, chemical, or mechanical restraint,

isolation, excessive medication, abuse, or neglect."

51. Rule 59G - 13.083(2) incorporates by reference the May

2010 version of the Handbook. Petitioner did not offer into

evidence the excerpt from either the May 2010 version of the

Handbook or the prior version of the Handbook that was in effect

when the first charged incident occurred. According to the

administrative compla ints, the Handbook provision , relied on

from page A - 8 of an unidentified version of the Handbook,

requires that each provider of waiver services must agree "to

safeguard the health, safety, and well being of all recipients

receiving services from the provi der."

52. Rule 65G - 2.012 sets forth the licensure standards for

group home facilities. Paragraph (15)(b) provides as follows:

The facility shall take all reasonable

precautions to assure that no client is

exposed to, or instigates, such behavior as

mig ht be physically or emotionally injurious

to him/herself or to another person.

53. Section 393.0673(2)(a)3. authorizes Petitioner to deny

an application for group home license renewal if the applicant

has "[f]ailed to comply with the applicable requireme nts of this

chapter or rules applicable to the applicant."

54. With regard to the first alleged incident involving

R.O., Petitioner failed to prove the charges in the

administrative complaints. The allegation that there were two

vulnerable adult group ho me residents left alone in a car was

proven to be false. There were not two vulnerable adults, nor

were there any group home residents involved in this incident.

While the evidence showed that one adult with a history of

sexually molesting children and o ther vulnerable adults was left

briefly in a car, the critical allegation that that individual

(who was not a n HIOTW group home resident) was left with a

non - verbal, vulnerable adult resident of an HIOTW group home was

not proven. There was no such other individual and that would

have been clear to Petitioner had any fair investigation of the

charges been made before they were lodged against Respondent.

Finally, and most significantly, Petitioner presented no

evidence to support the charge that the R.O. i ncident in any way

threatened the health, safety, or well - being of a single

resident of HIOTW.

55. Petitioner did not prove, by clear and convincing

evidence or even by a preponderance of the evidence, that R.O.

was left alone in a car while a n HIOTW em ployee went into the

bank. Although the evidence was in dispute, the evidence

established that R.O. was left in the car only while Mr. Davis

walked nine feet away from the car to the bank entrance; that

when Mr. Davis went into the bank, he took R.O. with him; and

that at all times, R.O. was within Mr. Davis's sight. As the

APD area administrator conceded, these circumstances do not

constitute neglect or failure to supervise by Mr. Davis.

56. Had the first incident been proven to occur the way

the DCF in vestigator reported , that R.O. was left by himself in

the car, not with a non - verbal vulnerable adult, for up to ten

minutes while Mr. Davis went into the bank, the incident would

still not give rise to disciplinary action against two of four

HIOTW group h ome licenses. Instead, such proof would have only

established inappropriate conduct by Mr. Davis. APD conceded

that HIOTW acted appropriately to address the incident, by

requiring that Mr. Davis undergo "zero tolerance" training and

by removing Mr. Davis as R.O.'s designated companion.

57. In the language of Petitioner's own rule under which

Respondent was charged for the R.O. incident, Petitioner failed

to prove that Respondent did not "take all reasonable

precautions to assure that" no client was harm ed or caused harm.

Instead, the evidence established that Respondent took all

reasonable precautions.

58. Petitioner did not prove the Handbook/rule language it

claimed was in effect so as to establish the record basis for

the charged violation of a Hand book provision. However,

assuming the applicable Handbook provision was as quoted in the

administrative complaints, Petitioner failed to prove that

Respondent violated a requirement to safeguard the health,

safety, and well - being of recipients of services .

59. The second incident can only be described as an

obvious and admitted single negligent lapse by an otherwise good

employee with an unblemished record. APD acknowledged that

HIOTW acted swiftly and appropriately to report the incident and

to complete ly alleviate any health or safety concerns. The

employee received a reprimand, suspension, and training and was

reassigned to ensure no possible reoccurrence. As such,

Petitioner failed to prove that Respondent did not take "all

reasonable precautions , " as required by the rule allegedly

violated. Nor did Petitioner prove that Respondent failed to

"safeguard the health safety, and well being" of service

recipients, which Petitioner contends, but did not establish, is

a requirement of the Handbook.

60. AP D suggested that while neither incident alone might

have sufficed to discipline HIOTW, the concern was with the

"pattern" of multiple incidents. No such "pattern" was proven.

Instead, the two incidents were separate, involving two

different employees, co mpletely different circumstances,

different clients, different concerns and separated by five

months. The two different incidents did not involve the same

licensed facility; indeed, neither incident occurred at either

group home whose licenses are in jeop ardy. No evidence was

presented to link these two incidents, such as that the two

employees were inadequately trained at the same time or that

both employees were trained using the same inadequate training

protocol. Indeed, the first so - called incident c annot fairly be

characterized as an incident as charged by Petitioner.

61. In penal proceedings to sanction a licensee,

particularly by seeking to, in effect, revoke licenses, the

licensing body cannot rely solely on wrongdoing or negligence

committed b y an employee of the licensee; instead, the licensing

body must prove that the licensee was at fault somehow for the

employee's conduct, due to the licensee's own negligence,

intentional wrongdoing, or lack of due diligence. The First

District Court of Ap peal discussed the development of the rule

in a line of cases and articulated the rule as follows in Pic N'

Save Central Florida, Inc. v. Dep artment of Bus iness Reg ulation ,

Div ision of Alcoholic Beverages and Tobacco , 601 So. 2d 245, 251

(Fla. 1st DCA 1992 ):

[B]efore [a licensee's] license can be

suspended or revoked for a violation of law

[committed by his employees] on his

premises, the licensee should be found to

have been culpably responsible for such

violation through or as a result of his own

negligen ce, intentional wrongdoing, or lack

of diligence.

62. In Pic N' Save , the court applied this rule to reverse

the revocation of a store's liquor license, which had been

predicated on three illegal sales by three different cashiers

who failed to require id entification to verify the age of the

purchasers. The violations were on three different days in a

five - month period. After each incident, the store management

conducted training sessions. Although the Department

characterized the training sessions as " relatively limited

efforts to [ educat e] its employees so as to prevent th o se

violations ," I d. at 249, the court held as follows:

Because the three illegal sales relied on by

the Division are so widely separated in time

and involve only single incidents by each

participant, we hold that these incidents

cannot legally provide a basis for the

inference of negligence and lack of due

diligence necessary to support the

Division's imposition of discipline.

Id. at 250. The facts of this case are even less support ive of

discipline against the licensee for two unrelated incidents (one

of which was not proven to rise to the "incident" level),

involving two different employees, not on the same premises, and

separated by an equally wide time span.

63. APD agency prece dent has recognized and applied the

foregoing principles from Pic N' Save in the precise regulatory

context at issue here, group home licensure. In Ag ency for

Pers ons with Disab ilities v. Amanda and C o ., Inc., d/b/a Loving

Hearts Group Home , Case No. 08 - 1 812 (Fla. DOAH Oct. 29, 2008;

Fla. APD Feb. 3, 2009), APD adopted the Administrative Law

Judge's recommendation to dismiss an administrative complaint

seeking to discipline a group home's license. The complaint

charged the group home with failing to ensur e that a vulnerable

17 - year old female resident was not abused. 7/ The facts proven

at the administrative hearing were that an employee of the group

home physically abused the vulnerable young resident. DCF

conducted an investigation and issued a report c ontaining

verified findings that the group home licensee failed to protect

the resident from harm and that the employee was responsible for

maltreatment and physical injury inflicted on the resident. The

group home terminated the employee. Based on these facts, the

Administrative Law Judge concluded that the abused resident was

not in any danger of further abuse after the employee had left

the facility and that the evidence was not clear and convincing

that the licensee's group home license should be disc iplined.

APD adopted the recommended findings and conclusions and entered

its Final Order determining that "Respondents' license is not

subject to discipline for failure to protect [the vulnerable

resident.]" APD Final Order at p. 2, Rend ition No. APD 09 - 1895 -

FO.

64. The clear and convincing evidence fails to establish

that Respondent's license should be disciplined for the two

charged incidents in the administrative complaints.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a final order be entered by Petitioner ,

Agency for Persons with Disabilities, approving Respondent's

applications to renew its annual licenses to operate Lake Miriam

Group Home and Timbergreen Group Home and issuing standard

licenses for one - year terms to those facilities.

DONE AND ENT ERED this 3rd day of February , 2012 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearing s

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 3rd day of February , 2012 .

ENDNOTE S

1/ Bec ause the APD Notices of Application Denial are properly

considered administrative complaints, the parties agreed at the

outset of the final hearing that APD should be deemed the

Petitioner, with the burden of going forward and the burden of

proving the cha rges in the administrative complaints as grounds

to take penal action against HIOTW. Therefore, the style of

these consolidated cases was amended to reflect the proper

alignment of the parties. Previously, the pleadings were not

consistent. Case No. 11 - 1620 was transmitted to the Division of

Administrative Hearings by APD with a case style reflecting APD

as Petitioner and HIOTW as Respondent, whereas the order was

reversed in Case No. 11 - 2455. At some point, the cases were

consolidated and the case styl es showed APD as Respondent in

both cases. Therefore, caution should be used in reviewing

record references to "Petitioner" and "Respondent" because of

the confusion and changes in usage of those references before

the final hearing.

2/ DCF operates the hotline pursuant to chapter 39 , Florida

Statutes (child protective services) , and chapter 415 , Florida

Statutes (adult protective services). These same chapters

impose obligations on providers and their employees who serve

children and vulnerable adults to submit incident reports when

they have reason to believe that abuse or neglect of a child or

vulnerable adult may have occurred. The hotline calls and

incident reports are screened by DCF to determine if a formal

investigation is warranted. If a forma l investigation is

warranted, then DCF will open a case and conclude the case by

issuing a report that either verifies findings of abuse or

neglect, or finds no substantiation of abuse or neglect. See ,

e.g. , §§ 415.103, 415.1034, and 415.104, addressing h otline

reports, incident reporting requirements, and investigations

regarding possible abuse or neglect of vulnerable adults.

3/ The area administrator testified that the two denial letters

were prepared by the central office, but that she reviewed them

for accuracy before they were sent out to HIOTW. The two denial

letters allege that the R.O. incident involved "two vulnerable

adult group home residents [left] alone in a car[,]" one of whom

had a history of sexually abusing children and vulnerable

adult s, and the "other resident who was left unsupervised in the

car was non - verbal." These allegations were proven to be false

and the information for the allegations came from the APD Area

14 office.

4/ HIOTW attempted to, but was not permitted to, fully e xplore

the merits of the litany of negative allegations regarding HIOTW

which were included in the packet of material transmitted to the

central office for the purpose of making decisions regarding

HIOTW's pending license renewal applications and regarding

possible termination of HIOTW's Medicaid waiver provider

contract. The other negative allegations were not charged as

grounds to deny renewal of Lake Miriam's license or

Timbergreen's license, and , therefore, these peripheral matters

cannot be considered as grounds to act on the license renewal

applications. However, HIOTW was permitted to go into such

peripheral matters to a limited extent for the purpose of

establishing the rather poisoned atmosphere and relationship

between HIOTW and APD Area 14 offic e personnel, up through the

area administrator. A severe communication chasm developed,

seemingly borne of the belief held by some area office personnel

in the unfounded suspicions about HIOTW. This apparent bias was

established and bears on the credibil ity of Petitioner's

witnesses in continuing to support the grounds charged in the

March 25 Denial Letter and the April 29 Denial Letter.

5/ The DCF report included a section called "Facility Factors

Implications." In this section, the DCF investigator n oted that

AHCA's web site showed no recent deficiencies for HIOTW.

However, an update to this finding was as follows: "APD stated

there have been some questions concerning the characture [sic]

of the owners of [HIOTW] recently, the risk is increased."

N otwithstanding the apparent risk due to concerns expressed by

APD about the character of HIOTW's owners, the overall safety

assessment in the DCF incident report was that the overall risk

was low due to HIOTW's corrective actions. Presumably, the

"questio ns" alluded to by APD about the character of HIOTW

owners had to do with the negative suspicions and allegations

that APD was collecting and ultimately transmitted to the

central office in early 2011. It is not clear whether or to

what extent the DCF inci dent report may have been influenced by

APD's raising "questions" about the character of HIOTW owners.

As discussed in endnote 4, these negative aspersions about HIOTW

by the APD Area 14 office, never charged or substantiated, do

little to instill confide nce that HIOTW was been treated fairly

and without bias.

6/ The administrative complaints do not refer to which particular

year of statute or rule or which edition of the H andbook

provision Petitioner intended to charge. Because this is a

penal proceed ing, unless otherwise indicated, all references to

the Florida Statutes or Florida Administrative Code rules are to

the 2009 version, which was the law in effect at the time of the

first alleged incident cited as grounds to not renew

Respondent's group hom e licenses. Changes to the law in 2010,

in effect at the time of the second alleged incident, are

immaterial to the charges.

7/ As in this case, APD also sought to prove and argue in the

Loving Hearts Group Home case that the licensee did not

immedi ately submit a UIR after the employee "casually mentioned"

that she had an incident with the resident the night before, but

that it was no big deal. As in this case with the R.O.

incident, the evidence tended to confirm the licensee's good

faith belief th at there was no reportable incident at that time.

Also as in this case, the resolution of this issue in the

recommended and final orders was that the matter would not be

considered because the administrative complaint failed to charge

a violation of the r eporting requirements for incidents of abuse

or neglect as required by sections 39.201 and 415.1034.

COPIES FURNISHED :

Mike Hansen, Executive Director

Agency for Persons With Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

Percy W. Mallison, Jr., Agency Clerk

Agency for Persons With Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

Michael Palecki, General Counsel

Agency for Persons With Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Flori da 32399 - 0950

Stacy N. Robinson, Esquire

Department of Children and Families

200 North Kentucky Avenue , Suite 328

Lakeland, Florida 33801

Charles D. Bavol, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

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 c ase.

APPENDIX TO RECOMMENDED ORDER

DOAH CASES 11 - 1620 and 11 - 2455

The undersigned has considered Petitioner's Objections to

Depositions, filed on November 14, 2011, and Respondent's

response to Petitioner's objections, filed on December 8, 2011.

P etitioner's filing asserted a single blanket relevancy

objection, without elaboration, but with separate line items for

designated lines and pages to which the blanket objection

applied. In many instances, Petitioner designated many - page

chunks of deposit ion testimony, sometimes covering 20 - or 30 - page

blocks of questioning and answering, some of which may have been

irrelevant, but some of which was at least of marginal relevance.

Petitioner's blanket objection to a single large designated

chunk of depos ition testimony has not been sustained where the

designated chunk included some relevant testimony. It was up to

Petitioner to lodge specific objections to irrelevant deposition

testimony, and Petitioner cannot by its blanket objection, shift

the burden t o Respondent or to the undersigned to sort through

the relevant and irrelevant portions within large chunks of

testimony when Petitioner failed to identify just those

irrelevant passages. However, where such deposition testimony

was not relevant to the is sues to be determined here, or was not

relevant to such permissible matters as credibility/impeachment

of the deponents, then such testimony was not used as the basis

for any findings of fact.

Accordingly, the following specific rulings are made on

Petit ioner's designated relevancy objections:

Respondent's Exhibit 82

Copy of Deposition Transcript

Heather Monteath, October 5, 2011

Petitioner's relevancy objections to testimony portions cited in

line items a. through c. and e. through j. are overruled.

Petitioner's relevancy objection d. (page 77, line 6 through page

78, line 16) is sustained.

Respondent's Exhibit 83

Copy of Deposition Transcript

Melody Taylor, October 7, 2011

Petitioner's relevancy objections a. through h. are overruled.

Petition er's relevancy objection i. (page 175, line 4 through

page 175, line 24) is sustained.

Respondent's Exhibit 84

Copy of Deposition Transcript

Jeannette Estes, October 6, 2011

Petitioner's relevancy objections a. through e., g. through i.,

and k. through l. are overruled.

Petitioner's relevancy objection f. (page 142, line 24 through

page 143, line 20) is sustained.

Petitioner's relevancy objection j. (page 200, line 12 through

page 202, line 19) is sustained.