15-000034 Agency For Persons With Disabilities vs. V-Agape, Llc, D/B/A Tracy Court Group Home Status: Closed Recommended Order on Friday, November 6, 2015.

Summary: The agency proved by clear and convincing evidence that Respondent's multiple violations of the law support a denial of the renewal of its license to operate a group home.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH

DISABILITIES,

Petitioner,

vs. Case No. 15 - 0034FL

V - AGAPE, LLC, d/b/a TRACY COURT

GROUP HOME,

Respondent.

_______________________________/

RECOMMENDED ORD ER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (Division) , on July 23 , 2015, by video

teleconferenc e at sites located in Tampa and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Brian F. McGrail, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

Gerald D. Siebens, Esquire

Agency for Persons with Disabilities

1313 North Tampa Street , Suite 515

Tampa, Florida 33602 - 3328

For Respondent: Lindsey Ann West, Esquire

The Plante Law Group, PLC

806 North Armenia A venue

Tampa, Florida 33609

STATEMENT OF THE ISSUE

Whether the Agency for Persons with Disabilities (APD)

properly denied the application for licensure renewal sought for

the group home facility license held by Tracy Court Group Home,

own ed and operated by V - Agape, LLC.

PRELIMINARY STATEMENT

Petitioner received an application for licensure renewal

from Respondent on June 26, 2014. Petitioner served Respondent

with an Administrative Complaint on December 4, 2014, which

denied RespondentÓs application for licensure renewal.

Respondent timely requested an administrative hearing before the

Division pursuant to section 120.57(1), Florida Statutes (2014) .

Both parties appeared and were represented by counsel at the

video teleconference hearing conducted in Tampa and Tallahassee

on Ju ly 23, 2015.

At the hearing, Petitioner presented the testimony of Karen

Gonzalez, child protective investigator supervisor with the

Hillsborough County SheriffÓs Office (HCSO) ; Jennifer Campbell,

child protective i nvestigator (CPI) with HCSO ; Myra Leitold,

residential program supervisor with APD ; and Mitchell Turner, a

g roup h ome m onitor with APD; and offered 16 exhibits , all of

which were admitted into evidence. Respondent presented the

testimony of its owner and operator, Tonya Nelson; Geraldine

Wil liams , former regional operations manager for the Suncoast

Region; Chiqui t ta Nash, W aiver S upport C oordinator for Rendon

Support Services; and Myra Leitold and Mitchell Turner of APD;

and offered nine exhibits, all of w hich were admitted into

evidence.

Additionally, at RespondentÓs request, official recognition

was taken of section 120.695, Florida Statutes; Florida

Administrative Code Ch apter 65G - 2, as amended July 1, 2014;

r ules 65G - 2.011 and 65G - 2.012, effective Augus t 13, 1978 ; and the

Florida Department of Children and F amilies (DCF) Operating

Procedure No. 175 - 28, Child Maltreatment Index.

A two - volume Transcript of the final hearing was filed on

August 5 , 2015. Petitioner and Respondent filed their proposed

F indin gs of F act and C onclusions of L aw on August 24, 2015 .

References to statutes are to Florida Statutes (2014) ,

unless otherwise noted.

FINDING S OF FACT

1. Petitioner is the state agency charged with regulating

the licensing and operation of foster care facilities, group home

facilities, and residential habitation centers pursuant to

section 20.197 and chapter 393, Florida Statutes.

2. At all times material to this complaint, Respondent held

foster or group home facility licenses issued by APD. The

curr ent group home license issued for V - Agape, LLC, located

at acy Court, Lutz, Florida 33548, is owned by Tonya

Nelson, the sole managing member.

3. Respondent has contracted with APD to provide the

residents with Medicaid waiver developmental disabi lity

residential habitation services.

4. HCSO conducts investigations of reports of abuse,

neglect, abandonment, and threats of harm to children on behalf

of DCF.

5. Investigations of abuse, neglect, abandonment, and

threats of harm are initiated by re ported incidents through the

Florida Abuse Hot l ine. Karen Gonzalez is the s upervisor of the

Specialized Investigating Unit. She supervises the CPI s who

perform the a buse hotline investigations. Ms. Gonzalez

supervised Robert Hoon and Jennifer Campbell, both CPIs.

6. A report was made to the Florida Abuse Hot l ine on

January 24, 2014, that a minor female resident of RespondentÓs

Tracy Court Group Home sustained bruising and a red mark on the

back of her hand from being struck on her hands by Tonya Nelson.

The resident is non - verbal and intellectually disabled.

7. The subsequent investigation by CPI Hoon , on behalf of

DCF , was ultimately closed with verified indicators for physical

injury upon the minor resident living in the Tracy Court G roup

H ome, but d id not identify the caregiver responsible.

8. CPI Hoon reviewed and discussed the investigation with

Supervisor Gonzalez before he prepared the Investigative Summary

(IS) . When conducting investigations, the CPI reviews the prior

history of incidents r eported on a group home and its

owner/operator.

9. I n subs ection ÐD . Prior Reports and Service Records

Implications for Child S afety , Ñ CPI Hoon reported that:

There are prior reports on the facility that

include concerns for physical discipline in

the fo ster home and to her o[w]n children.

There is a verified report in 2012 for

physical injury and the aps [ adult

perpetrators ] w h ere [sic] Tonya Nelson and

the aunt as it is unknown who caused the

injuries.

10. Ms. Gonzalez testified that prior reports ar e reviewed

in conducting their investigations to determine whether a pattern

of concern for the health and safety of the children placed in

that home and for the caretakers caring for the children in the

home exists .

11. The CPIs utilize DCF Operating Pr ocedure (CFOP) 175 - 28 ,

Child Maltreatment Index , as a guideline i n conducting their

investigations. A Ðverified findingÑ is made when a

preponderance of the credible evidence results in a determination

that the specific harm or threat of harm was the resu lt of abuse,

abandonment, or neglect.

12. CPI Campbell explained the application of CFOP during

an investigation:

[I]t . . . breaks down the different

maltreatments that are investigated under the

umbrella of abuse, neglect, and abandonment,

and it provid es a guideline for the

definitions of what the different

maltreatments are, and the different types of

supporting evidence and documents that may be

needed when supporting a maltreatment when

the investigator comes up with the findings.

ItÓs basically a g uideline for

investigations, because when a report comes

in it may not be just one maltreatment, there

may be a number of different maltreatments;

or an investigator may identify a

maltreatment during the course of an

investigation, and so this provides a

guideline for the investigator.

13. On May 20, 2014, a report was made to the Florida Abuse

Hot l ine about a minor resident of RespondentÓs Tracy Court Group

Home. An investigation was commenced concerning unexplained

bruises observed on the resident, a vulnerable minor.

14. CPI Campbell completed the investigation and prepared

the IS. She discussed the verified findings with Supervisor

Gonzalez. CPI Campbell is an experienced investigator , having

had 11 years of service with HCSO following five yearsÓ

experience as a CPI in Michigan.

15. The report of May 20, 2014 , was a ÐSupplementalÑ report

since, according to Supervisor Gonzalez, it came in right after

the initial risk sequence. Rather than creating an entire new

report, this one became supplement al to the prior one.

16. The IS stated that the resident had a large bruise on

her left thigh and bruises on her left arm and the back of her

leg. Ms. Nelson was not able to explain how the minor resident

sustained the bruises on her leg and arm.

17. CP I Campbell became involved with Ms. Nelson and the

investigation of the group home when Supervisor Gonzalez gave her

the task of completing the investigation initiated by CPI Krisita

Edwards. At the time CPI Campbell took over the investigation,

CPI Edwar ds had been assigned to other duties.

18. CPI Campbell explained that it was not unusual for a

second investigator to complete work begun by another since all

their notes are kept on a central database known as the Florida

Safe Families Network (FSFN), wh ere all contacts are noted, as

well as the investigative summary.

19. CPIs Edwards and Campbell collaborated on the

investigation in this case. CPI Edwards entered her initial

findings in the FSFN, which was picked up and continued by CPI

Campbell when she took over the case. The two CPIs have

collaborated on other cases in a similar fashion.

20. The initial documentation by CPI Edwards was performed

within 48 hours of the call coming into the abuse hotline as

required. CPI CampbellÓs completion of t he report and

investigation occurred after she had spoken with CPI Edwards and

discussed the matter with Supervisor Gonzalez.

21. The result of the investigation concerning the bruises

on the minor resident w as that the bruises were Ðindeterminate

for phy sical abuseÑ and Ðindeterminate for supervisory neglectÑ

due to the fact that a specific cause of the injuries could not

be determined. Further, since the minor resident had been

removed to another group home, the report concluded that there

existed no co ntinuing threat to the residentÓs well - being.

22. Even though the resident had been removed from the

Tracy Court G roup H ome and , therefore, was not in any danger of

being further harmed, CPI Campbell continued to have s e rious

concerns about the care of re sidents in the group home. She

believed that several allegations of the same type of harm were

being made in the group home and that they could not ask the

resident how she received her injuries since she was non - verbal.

23. Myra Leitold, an APD resident ial licensing supervisor,

had monitored the Tracy Court G roup H ome for the previous nine

and one - half years. On December 28, 2012, she observed that a

door lock to the office and bedroom was keyed so that it could be

readily opened from the inside which, she believed, created a

safety hazard.

24. Between December 2012 and August 2014, the group home

was cited for ten violations of Medication Administration

Procedures. On one of her visits, in December 2012, Ms. Leitold

noted that no current prescription was present for one of the

residents, and that the label on the prescription bottle did not

match the prescription drugs inside the bottle. Additionally,

she found that the accounting for one of the residentÓs finances

was not current and that the tempera ture inside the group home

was a chilly 65 degrees Fahrenheit.

25. Mitchell Turner, human services program specialist for

APD , recorded numerous medication administration violations at

the group home. He noted on May 30, 2013, that the medication

prescr iptions and instructions for the Medical Administration

Record (MAR) did not match. On June 18, 2013, he discovered that

the wrong dosage of prescription was being given to a resident,

and Ms. Nelson admitted this mistake.

26. Mr. Turner grew so concerne d about the prescription

irregularities that he requested Pamela Lassiter, a medical case

management registered nurse , to review the group home. Nurse

Lassiter was sent to the home where she discovered and cited the

home for three additional prescription violations.

27. Even following Nurse LassiterÓs visit, on another trip

to the group home on April 9, 2014, Mr. Turner cited an

additional MAR violation. He believed these violations posed a

health and safety risk to the residents affected and exhibited a

pattern of neglect by Respondent to the health and safety of

vulnerable children.

2 8 . During the period when prescription and other

violations were noted, o n January 11, 2013, Ms. Nelson exceeded

the maximum licensed capacity of three in the group home w hen she

accepted a fourth resident. She did not have prior written

approval from APD to exceed her licensed capacity of residents.

29 . On September 25, 2013, Mr. Turner issued a Notice of

Non - Compliance (NNC) because Ms. Nelson again exceeded the

license d capacity for the number of residents in the group home

without prior written approval from APD. Mr. Turner expressed

his concerns over the repeated violations by Respondent.

3 0 . Ms. Nelson testified that she had received verbal

approval for the placeme nts in excess of the homeÓs licensed

capacity from Me i sha Stewart, residential placement coordinator

for APD , and that on a prior occasion in 2012, she had accepted a

resident after receiving verbal approval. This testimony was

rebutted by both Geraldine Williams, the former regional

operations manager for APDÓs Suncoast Region, and Ms. Leitold ,

who testified she had never known APD to give verbal approval for

a placement of a resident in a group home. With the high volume

of referrals APD makes to group homes, they cannot operate in a

system where verbal placements occur. All placements must be

made in writing.

3 1 . When a provider receives a NNC, the provider is

required to submit and successfully complete a Corrective Action

Plan (CAP). Mr. Turner tes tified that Ms. Nelson did not submit

or successfully complete a CAP for the MAR violations.

3 2 . On January 17, 2013, Ms. Leitold visited the group home

and observed the following violations: volatile materials were

not stored in approved metal container s and three prescriptions

for a residentÓs medications were not present. The gasoline,

charcoal, and lighter fluid found by Ms. Leitold were required to

be stored in approved metal containers . Keeping these materials

in the open posed a safety hazard for the minor residents by

giving them access to volatile materials.

3 3 . On November 4, 2014, Ms. Nelson sent an email to Meisha

Stewart advising her she intended to accept a non - APD client for

placement in the Tracy Court Group Home without APDÓs prior

ap proval. Ms. Nelson testified that since that same resident had

been placed in the Tracy Court Group Home for a six - month period

in 2013, she believed she did not need a new approval in 2014.

CONCLUSIONS OF LAW

3 4 . The Division of Administration Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2015).

3 5 . Petitioner, as the party asserting the affirmative of

the issue in this proceeding, has the burden of proof. Balino v.

DepÓt of Health & Rehab ilitative Servs. , 348 So. 2d 349 (Fla. 5 th

DCA 1977); DepÓt of Agric . & Cons umer Servs. v. Strickland , 262

So. 2d 893 (Fla. 1st DCA 1972). The level of proof is generally

a preponderance of the evidence. DepÓt of Banking & Fin. v.

Osbor ne Stern & Co. , 670 So. 2d 932 (Fla. 1996). See also ,

Davis v. DepÓt of Child. & Fam. Servs . , 160 So. 3d 854, 857 (Fla.

2015). However, case law exists that indicates the standard may

be clear and convincing when the denial of the renewal is based

upon v iolations of the law and rules concerning licensure.

3 6 . This case is a license renewal case, not an initial

licensure case as in Davis . It involves allegations of

wrongdoing by the licensed group home and termination of

RespondentÓs ability to operate a group home. Although the

context is license renewal, the action is to impose a penalty for

violation of the law. Consequently, the proper burden of proof

is clear and convincing evidence. Coke v. Dep Ó t of Child . & Fam .

Servs. , 704 So. 2d 726 (Fla. 5 t h D CA 1998) . Applying the

standard for initial licensure when an agency denies r enewal

because of alleged wrong doing would allow an agency to manipulate

the system to avoid the clear and convincing standard by denying

renewal , rather than instituting a di sciplinary action. See

Posey v. Fla. Game & Fresh Water Fish Comm Ón , Case No. 89 - 4700

( Fla. DOAH Jan . 3, 1990 , p . 12 ) (ÐOnce a determination is made by

the Department that Petitioner's licenses can be revoked based

upon the trial court's disposition of th e misdemeanor, the

Department must treat its decision not to renew the licenses as a

revocation proceeding.Ñ) .

3 7 . The burden of proof for group home licensure is not

established by statute or an issue committed to the a gency by the

Legislature. It is a procedural matter governed by case law, not

one over which the Legislature has given the a gency substantive

jurisdiction. G.E.L. Corp. v. Dep't of Envtl. Prot. , 875 So. 2d

1257 (Fla. 5 th DCA 2004). In this case, since the a gency proved

its allegations b y clear and convincing evidence, the result is

the same regardless of which standard of proof is applied.

3 8 . APD is charged with regulating the licensing and

operation of foster care facilities, group home facilities,

residential habitation centers, and comprehensive transitional

education programs pursuant to section 20.197 and chapter 393.

39 . Section 393.067 sets forth the a gencyÓs

responsibilities concerning application procedures and provider

qualifications. Section 393.0673 sets forth further

con siderations pertaining to licensure. Section 393.0673(2)

provides as follows:

The agency may deny an application for

licensure submitted under s. 393.067 if:

(a) The applicant has:

1. Falsely represented or omitted a material

fact in its license applica tion submitted

under s. 393.067;

2. Had prior action taken against it under

the Medicaid or Medicare program;

3. Failed to comply with the applicable

requirements of this chapter or rules

applicable to the applicant; or

4. Previously had a license to o perate a

residential facility revoked by the agency,

the Department of Children and Family

Services, or the Agency for Health Care

Administration; or

(b) The Department of Children and Family

Services has verified that the applicant is

responsible for the abuse, neglect, or

abandonment of a child or the abuse, neglect,

or exploitation of a vulnerable adult.

4 0 . DCF made two verified findings regarding Respondent,

one against Tracy Court Group Home and one against Ms. Nelson ,

personally , as the caregiver responsible for her residents.

Ms. Nelson did not credibly refute the verified findings against

her.

4 1 . RespondentÓs failure to provide appropriate

supervision ; safeguard the health, safety, and well - being of the

residents ; and to provide an environment free from abuse and

neglect constitutes a violation of section 393.13(3)(a) and (g)

and r ule 65G - 2.012(4) and (5)(c).

4 2 . The issue of whether the verified finding against

Respondent , based upon an investigation started by CPI Edwards

and completed by CP I Campbell under the direction of Supervisor

Gonzalez , is resolved in favor of Petitioner. The greater weight

of evidence supports the conclusion that investigators routinely

work in teams or a successor investigator often takes over for

one who initiated the investigation due to scheduling and

reassignment. Accordingly, RespondentÓs argument that the

findings of the investigation are invalid because multiple

investigators were involved , rather than the initial investigator

handling the case to its comple tion , fails , and the results of

the investigation shall form a basis for the decision in this

case.

4 3 . The verified findings by the HCSO in the child

protective investigations against Tonya N elson and Tracy Court

Group Home are sufficient grounds, in and of themselves, under

the above - cited statutes and rules to deny renewal of the group

home license. Respondent did not provide sufficient evidence to

overcome the proof offered by Petitioner regarding the verified

findings by the DCF investigators.

4 4 . R egarding the medication issues raised by Petitioner,

r ule 65G - 7.002(3) and (5) provides as follows:

(3) The medication assistance provider must

maintain a current Authorization form,

reviewed by the clientÓs physician, physician

assistant, or ARNP at leas t annually and upon

any change to the clientÓs medical condition

or self - sufficiency which would affect the

clientÓs ability to self - administer

medication or to tolerate particular

administration routes.

* * *

(5) In addition to an executed Authoriz ation

for Medication Administration and before

providing a client with medication

assistance, a provider must also obtain from

the client or the clientÓs authorized

representative an ÐInformed Consent for

Medication AdministrationÑ APD Form 65G7 - 02

( 3/30/0 8 ) incorporated herein by reference.

4 5 . Mr. Turner found repeated violations of the MAR at the

group home. The repeated violations and the failure to submit

and successfully complete the CAPs for the cited violations

clearly demonstrates a pattern of prescription drug mismanagement

by the group home and a dereliction of responsibility towards the

residents of the group home by Ms. Nelson.

4 6 . The violations noted by Ms. Leitold on her January 17,

2013, inspection regarding the failure to adequately an d

appropriately store volatile materials created an imminent threat

of harm to minor residents. The garage was not locked , and

residents had access to the garage area where the volatile

materials such as gasoline, charcoal, and lighter fluid were left

out in the open , rather than stored in appropriate containers.

This constitutes violations of r ules 65G - 2.011(8) and

65G - 7.005(2).

4 7 . Three incidents involving Ms. NelsonÓs violation of the

admissions procedure were raised in this proceeding. Ms. Nelson

admitted to Mr. Turner that, on two occasions, she violated the

requirement to obtain prior approval from the agency before

admitting new clients to the Tracy Court Group Home. As to the

third instance of admitting a client without prior approval,

Ms. Nel son testified that she had prior verbal approval of the

a gency to place the client, but did not have written approval.

The a gencyÓs witnesses testified that they always give written

approval and that they would never expect a provider to rely upon

verbal approval with the high volume of placements the a gency has

to make on a regular basis. Ms. NelsonÓs testimony regarding the

verbal approval was rebutted by both Ms es . Leitold and Williams ,

whose testimony and description of a gency practice for approval

is more credible than Ms. NelsonÓs version.

4 8 . Respondent argues that the violations set forth in the

Administrative Complaint giving rise to the denial of its

application for renewal constitute only minor offenses that c an

be corrected without penalty. F urther, Respondent argues in its

C onclusions of L aw that since Petitioner failed to allege what

class each of the alleged violations falls within, adverse

findings cannot be made against Respondent. Further, argues

Respondent, Petitioner failed to allege or prove that any

allegations in the Administrative Complaint constituted repeat or

continued violations.

49 . RespondentÓs argument that it was not properly placed

on notice of the statutory and rule violations is ingenuous, at

best. While it is true tha t the violations set forth in the

12 counts of the Administrative Complaint were not assigned a

class for the nature of the violation, the charging document

clearly set forth the charges aga i n s t the group home and ,

together with the extensive testimony at hearing, provided clear

and convincing evidence supporting the violations. Further, the

evidence and testimony at hearing made clear the continuing and

repeated nature of the violations, especially those dealing with

mishandling of the residentsÓ prescrip tions and the repeated

attempts to add residents in excess of the number of approved

residents for the group home.

5 0 . Petitioner has met its burden of proving, by clear and

convincing evidence, that RespondentÓs application for renewal of

its group home license should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities enter a f inal o rder denying V - Agape, LLC, d/b/a

Tracy Court Group HomeÓs application fo r license renewal .

DONE AND ENTERED this 6 th day of November , 2015 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee P arkway

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 6 th day of November , 2015 .

COPIES FURNISHED:

Brian F. McGrail, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Lindsey Ann West, Esquire

The Plante Law Group, PLC

806 North Armenia Avenue

Tampa, Florida 33609

(eServed)

Gerald D. Siebens, Esquire

Agency for Persons with Disabilities

1313 North Tampa Street , Suite 515

Tampa, Florida 33602 - 3328

(eServed)

Barbara Palmer, Executive Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditsch ler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

David De La Paz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

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 is sue the Final Order in this case.