16-000386FL Agency For Persons With Disabilities vs. New Life Charities, Incorporated, Owner And Operator, Janae House Group Home Status: Closed Recommended Order on Thursday, July 14, 2016.

Summary: Respondent's group home license should be revoked because of multiple group home license standards violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH

DISABILITIES,

Petitioner,

vs. Case No. 16 - 0386FL

NEW LIFE CHARITIES,

INCORPORATED, OWNER AND

OPERATOR, JANAE HOUSE GROUP

HOME,

Respondent.

_______________________________/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

March 24 , 2016, in Ocala , Flo rida, before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Andrew F. Langenbach, Esquire

Agency for Persons with Disabilities

Suite S430

400 West Robinson Street

Orlando, Florida 32801

For Respondent: No A ppearance

S TATEMENT OF THE ISSUE S

Whether Respondent , New Life Charities, Incorporated , Owner

and Operator, Janae House Group Home ( New Life or Janae House or

Respondent) , violated one or more of the group home licensure

standards as alleged by the Agency for Persons with Disabilities

( APD or Petitioner) in the Administrative Complaint and, if so,

what is the appropriate penalty .

PRELIMINARY STATEMENT

On December 4, 2015, APD served an administrative complaint

(Comp laint) on Respondent. The nine - count Complai nt sought

revocation of Respondent 's group home license for numerous

alleged violations of l icensure standards . Respondent timely

disputed the allegations and APD referred the matter to the

Division of Administrative Hearings ( DOAH) on January 25, 2016.

Th e case was assigned to the undersigned to conduct an

administrative hearing pursuant to chapter 120, Florida

Statutes. 1/

A two - day hearing was scheduled for March 24 and 25, 2016.

On the first day of the hearing, however, no one appeared on

behalf of Re spondent and the final hearing was completed in less

than one day. During the hearing, APD presented the testimony

of six witnesses: Ronald Graham, an adult protection

investigation s upervisor with the Department of Children and

Families ; Charles Bory, a s upervisor with the Agency for Health

Care Administration ; Scott Traynor, a senior b ehavior a nalyst

with APD; Michael McKenna, an APD home i nspector; Joyce Leonard,

an APD l icensing s upervisor ; and Michelle Young , a medical case

m anager with APD. Petiti oner offered 19 exhibits which were

received in evidence as Petitioner's Exhibits P - A through P - S ,

with the caveat that hearsay evidence within the exhibits could

not be relied upon as the sole basis for a finding of fact .

The proceeding was recorded and a transcript was ordered.

Petitioner was given 30 days from the filing of the t ranscript

within which to file it s proposed recommended o rder. The one -

volume Transcript of the proceedings was filed on April 27,

2016, and Petitioner timely filed its P roposed Recommended

Order . Respondent did not file a proposed recommended order.

Petitioner's Proposed Recommended Order was considered in

preparing this Recommended Order.

FINDINGS OF FACT

1. Janae House is a group home owned by New Life located

at 17130 Southwest 41st Court, Ocala, Florida 34473. It is

licensed as a group home by APD.

2. As a group home licensing agency, APD has multiple

employees assigned to monitor group home s and their employees.

3. In monitoring a group home's compliance with applicable

licensing standards, APD also reviews findings of group home

investigations conducted by the Department of Children and

Families (DCF) .

4. The Complaint charges Janae House with two Class I

violations of group home licensing standards from reported

incidents allegedly occurring in 2013 and 2015. The Complaint

further alleges that in 2014, Janae House was responsible for

numerous other violations of group home licensing standards,

including 10 alleged Class II violations and 25 alleged

Class III violations .

CLASS I VIOLATIONS

5. Florida Administrative Code Rule 65G - 2.0041(4)(a)

includ es as C lass I violations "all instances where the

Department of Children and Families has verified that the

licensee is responsible for abuse, neglect, or abandonment of a

child or abuse, neglect or exploitation of a vulnerable adult."

6. The two alleged Class I violations against Respondent

stem from 2014 DCF investigations of alleged incidents occurring

in 2013 and 2014, respectively.

7. According to Count I of the Complaint, Janae House's

first alleged Class I violation occurred in 2013 and was

verified in a February 2014 DCF investigative report prepared by

Charles Bory . Mr. Bory conducted the investigation in person

and testified at the final heari ng regarding his investigation.

At the time of the report, Mr. Bory was an adult protective

investigator for the Department of Children and F amilies.

8. Mr. Bory 's investigation concerned an allegation that

a New Life employee caused Janae Hous e resident RB to fall and

injure his shoulder. During the investigation, Mr. Bory spoke

with the owner of New Life, Kevin Rivers, who denied the

allegation, stating that the allegation was "crazy , " that

resident RB had tried to escape, f allen while doing so , and

hurt his shoulder in the fall. Mr. Bory later interviewed the

alleged perpetrator, a former staff member of New Life , who

admitted that he and resident RB fell to the ground while he

was holding resident RB and trying to stop resident RB from

leavin g . Given the staff member's admission, Mr. Bory found

that the allegation was verified. Mr. Bory's testimony and t he

investigative report support the allegation , which is found to

have occurred .

9. The other alleged Class I violation is from a 2014

inci dent alleged in Count III of the Complai nt. As to this

second alleged Class I violation, a lthough APD submitted DCF's

investigative report, the investigator who conducted that

investigation did not testify. Rather, APD called the

investigator's supervisor, who advised that the investigator was

no longer employed by DCF and was unavailable. The

investigator's supervisor further testified that he did not know

if any of the information in the investigative report was true.

U nder the circumstances, it is found that the investigative

report for the 201 4 alleged incident is hearsay and prepared in

anticipation of litigation. Further, t hat 2014 investigative

report is not corroborative of other evidence and the evidence

is otherwise insufficient to find a Class I violation stemming

from the 2014 incident. 2/

CLASS II VIOLATIONS

10. Rule 65G - 2.0041(4)( b) classifies C lass II violations

as violations that "do not pose an immediate threat to the

health, safety or welfare of a resident, but could reasonably be

expected to cause harm if not corrected."

11. In October 2014, APD I nvestigator Michael McKenna

found a broken window a t the Janae House that had been

improperly repaired, with glass still lying in the yard and in

the window frame.

12. Given the fact that the Janae H ouse is a behavior al

home, a broken window with exposed broken glass presents a

direct risk that a resident may hurt themselves or another .

13. Mr. McKenna advised owner Kevin Rivers about the

window and its danger during the October 2014 visit .

14. On a return visit i n November 2014 , Mr. McKenna noted

that the window was broken again, and that , for a second time ,

jagged glass was left in the window .

15. When Mr. McKenna spoke to Mr. Rivers again,

Mr. Rivers' response was that the investigator was intentionally

l ooking for items to note.

16. During her visit to Janae House on August 8, 2014, AP D

licensing s upervisor Joyce Leonard observed that there was no

carbon monoxide detector in the home and that the smoke detector

needed a battery. Ms. Leonard also observed that the pantry

door in the kitchen was broken. Mr. Rivers was advised of these

deficiencies.

17. Two months later, d uring a monitoring visit to Janae

House on October 29 and 30, 2014 , Investigator McKenna observed

that there was still no carbon monoxide detector in the home and

that the smoke detec tor lacked a batter y . During that same

visit, Mr. McKenna also observed broken doors and holes in the

wall .

18. In cases where a behavioral analyst is not available

for residents needing behavioral services, APD regulat ions

require a short one - or two - page sheet of procedures from the

residents' health care provider for group home employees to

follow in case of problematic behaviors. While monitoring Janae

House on February 24, 2014, APD Senior Behavior A nalyst Scott

Traynor noted that , although Janae House resident JR had the

need, no behavior analyst was available for resident JR . T here

was also no behavior procedure sheet specific to resident JR .

CLASS III VIOLATIONS

19. Rule 65G - 2.0041(4)(c) classifies C lass III violations

as "statutory or rule violations related to the operation and

maintenance of the facility or to the personal care of

residents, other than Class I or Class II violations."

20. When Joyce Leonard visit ed Jana e House on August 8,

2014, Ms. Leonard observed that there was garbage strewn

throughout the front yard .

21. On his October 29 and 30, 2014, visit, Michael McKenna

discovered that t here was no physical exam on file for resident

JR , t here were no f inancial r eco rds of residentsÓ personal funds

available for review, a Janae House staff member was

administering medication to residents even though there were no

current medication administration training credentials on file ,

and there was n o communication log for Janae House staff .

22. During that same visit, Mr. McKenna observed e xposed

light bulbs in the ir fixtures, filthy rugs throughout the home,

a dryer was full of lint, n umerous wasps nests on the outside of

the building, and va rious debris l ittered throughout the

grounds.

23. New Life owner , Mr. Rivers , was made aware of these

deficiencies at the time and advised that he would correct them.

Corrections, however, were not made.

24. Upon Mr. McKennaÓs return to Janae House on

November 20, 2014 , there were no financial records available for

review for resident KJ Ós personal funds , n o documentation of an

annual dental visit for resident KJ, n o weekly schedule for

staff, and light bulbs were still exposed.

25. During Scott Traynor Ós visit to Janae House on

February 24, 2014 , h e found that a board - certified behavior

analyst was not monitoring at least 50 percent of Janae House

staff each month as required, and that Janae House did not have

site - specific reactive strategy procedures fo r staff to

implement , if needed. He also discovered that, despite ADPÓs

request, the behavior analyst for Janae House resident DJ did

not pre sent resident DJ's behavior plan to the local review

c ommittee for review, and that Janae House staff was not

conduct ing quarterly or semi - annual quality a ssurance meetings

to review reactive strategies and develop strategies for

behavioral incident reduction .

26. APD also alleged that , during her review and

investigation, former APD Medical Case M anager Victoria McKenna

discovered that Janae House had viol ated a number of medical

regulation s . Ms. McKenna , however, did not testify . Rather,

APD attempted to prove the alleged medical violations by

submitting reports and notices of violations allegedly observed

by Ms. McKenna and by offering the testimony of Michelle Young,

a current APD medical case manager , who testified that notices

of noncompliance are the same reg ardless of who does them.

However, as in the alleged Class I violation that was only

supported by an investigative report, it is found that the

notices of violation s prepared by Ms. McKenna, without more, are

hearsay, prepared in anticipation of litigation, and

insufficient to prove the alleged medical violations.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

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

28. The Department, as the party asserting the affirmative

in this proceeding, has the burde n of proof. See , e.g. , Balino

v. DepÓt of Health & Rehab. Servs . , 348 So. 2d 349 (Fla. 1st DCA

1977). Because the Department is seeking to prove violations of

a statute or rule and impose administrative fines or other

penalties, it has the burden to prove the allegations in the

complaint by clear and convincing eviden ce. DepÓt of Banking &

Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co. , 670 So.

2d 932 (Fla. 1996); Ferri s v. Turlington , 510 So. 2d 292 (Fla.

1987).

29. As the licensing authority , APD is charged with

regulating the licensing and operation of foster care

facilities, group home facilities, residential habilitation

centers, and comprehensive transitional education programs

pursuant to section 20.197 and c hapter 393, Florida Statutes.

3 0. APD is authorized to revoke a license, or impose an

administrative fine if the licensee has failed to comply with

the applicable requirements of c hapter 393 or applicable rules .

31. Rule 65G - 2.0041(4)(a)1. provides that Class I

violations may be penal ize d by revocation of the license. APD

proved by clear and convincing evidence that Janae House had one

Class I violation arising from the abuse and injury of a

resident in 2013.

32. With regard to Class II violations, r ule 65G -

2.0041(4)(b) 1 . states : "If four or more Class II violations

occur within a one year time period, the Agency may seek the

suspension or revocation of the facility's license, nonrenewal

of licensure, or a moratorium on admissions to the facility."

33. APD proved by clear and con vincing evidence at least

seven Class II violations by Janae House , including two

incidents of exposed broken glass and improper window repair, 3/

two incidents of failing to have carbon monoxide detectors , 4 / two

incid ents of failing to have working batteries in a smoke

detector, 5 / and one failure to have a written behavioral pr otocol

for a resident who needed behavioral services. 6 /

34. Regarding Class III violation, r ule 65G - 2.0041(4)(c)3.

state s : "If twenty or more Class III violations occur within a

one year time period, the Agency may seek the suspension or

revocation of the facility's license, nonrenewal of licensure,

or moratorium on admissions to the facility. Ñ

35. APD proved , by clear and convincing evidence, 1 8 of

the Class III viola tion allegations against Janae House ,

including two incidents of strewn garbage , 7 / one failure to have

a residentÓs medical exam records on file, 8 / two failures to have

residentsÓ personal financial records available, 9 / an incident of

a staff member administering medica tion without documented

training , 10 / the lack of a staff communications log, 11 / two

incidents of exposed light bulbs , 12 / an incident of having filthy

rugs, 13 / maintaining a fire hazard by failing to clean lint from

a dryer, 1 4 / having numerous wasp nests, 15 / failure to maintain

dental records on a resident, 16 / failure to maintain a weekly

staff schedule, 17 / failure to have at least 50 percent of staff

monitored by a board - certified behavior analyst , 18 / failure to

have site - specific behavioral reactive procedures , 19 / failure to

submit a residentÓs behavioral plan for local committee

review, 20 / and failure to conduct quarterly or semi - annual

quality assurance meetings. 2 1 /

36. While APD did not prove 20 Class III violations, the

numerous Class III violations that it did prove are not

insignificant. Further, the Class I violation and the seven

Class II violations that were proved against Respondent are more

than adequate to support revocation of RespondentÓs license.

RECOMMENDATION

Based up on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Agency for Persons with Disabilities

enter a final o rder finding that Respondent violated the group

home licensing standards as concluded above and revoking

RespondentÓs group home license .

DONE AND ENT ERED this 14th day of Ju ly , 201 6 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of July, 2016 .

ENDNOTES

1/ A ll citations to the Florida Statutes or the Florida

Administrative Code are to current versions which have not

substantively changed since the date of the alleged violations .

2/ Ð Ò Hearsay Ó is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted. Ñ

§ 90.801(1)(c), Fla. Stat. Under the Administrative Procedure

Act, Ð[h] earsay evidence may be used for the purpose of

supplementing or explaining other evidence, but it shall not be

sufficient in itself to support a finding unless it would be

admissible over objection in civil actions. Ñ § 120.57(1)(c) ,

Fla. Stat. Moreover , if "a record is made for the purpose of

preparing for litigation, its trustworthiness is suspect and

should be closely scrutinized." King v. Auto Supply of Jupiter,

Inc. , 917 So. 2d 1015, 1019 (Fla. 1st DCA 2005) (quoting

Professor Ehrhardt comments, Florida Evidence , § 803.6 at

786 (2004)).

3 / Rule 65G - 2.007(2)(e) states : "The facility shall provide

safe and sanitary housing. Floors, walls, ceilings, windows,

doors, and all parts of the structures shall be of sound

construction, properly maintained or in working order, and kept

clean as necessary to ensure the health and safety of the

facility's residents." Rule 65G - 2.007(2)( h) then states : "A

violation of this subsection shall constitute a Class II

violation."

4 / Rule 65G - 2.007(16) states: "Facilities shall be equipped

with smoke and carbon monoxide detectors in good working

condition. A violation of this subsection shall constitute a

Class II violation."

5 / Id.

6 / Rule 65G - 2.009(8)(a) provides:

BEHAVIORAL INTERVENTIONS AND RESPONSES TO

BEHAVIORAL ISSUES INVOLVING RESIDENTS.

(a) The facility shall have a written

statement of policies and procedures governing

actions that may be taken by direct service

providers to help prevent or respond to

problematic behaviors exhibited by residents.

Such policies and procedures, as well as an y

actions taken by direct service providers

involving residents of the facility, shall

include emergency procedures, reporting

requirements, and be consistent with the

provisions of Section 393.13, F.S., as well as

Chapters 65G - 4 and 65G - 8, F.A.C. A viol ation

of this paragraph shall constitute a Class II

violation.

7 / Rule 65G - 2.007(10)(d) states : "All outdoor garbage and other

waste materials shall be kept in covered containers until

removed. Containers shall be emptied as often as necessary to

preve nt public nuisance and health hazards in accordance with

municipal and county requirements of the jurisdiction within

which the facility is located."

8 / R ule 65G - 2.009(5)(b)5. provides that the licensee shall

maintain on the premises residentsÓ : "Medical and dental

reports, including any examination results and laboratory

findings, if received by the facility, and the client's

medication history and any special instructions for carrying,

lifting, positioning, bathing, assisting with meals or other

aspects of personal care."

9 / Rule 65G - 2.009(4)(b ) provides: "A record of income and

expenditures from each client's personal funds shall be

maintained in accordance with generally accepted accounting

principles."

10 / S ection 393.506(2), Florida Statutes , states :

In order to supervise the self - administration

of medication or to administer medications as

provided in subsection (1), a direct service

provider must satisfactorily complete a

training course of not less than 4 hours in

medication administration and be fo und

competent to supervise the self - administration

of medication by a client or to administer

medication to a client in a safe and sanitary

manner. Competency must be assessed and

validated at least annually in an onsite

setting and must include personall y observing

the direct service provider satisfactorily:

(a) Supervising the self - administration of

medication by a client; and

(b) Administering medication to a client.

Further, r ule 65G - 7.004(1) provides:

An unlicensed provider applying for validation

as a medication assistance provider must be

assessed and validated at least annually,

through demonstration, as competent to

administer medication or to supervise the

self - administration of medication. Succes sful

completion of an Agency - approved medication

administration course is a prerequisite to an

assessment of competency validation.

11 / Rule 65G - 2.009(15) requires : "A facility shall have a

system in place to communicate recent incidents and client

inf ormation to staff worki ng on subsequent shifts."

12 / R ule 65G - 2.007(2)(e) states : "The facility shall provide

safe and sanitary housing. Floors, walls, ceilings, windows,

doors, and all parts of the structures shall be of sound

construction, properly maintained or in working order, and kept

clean as necessary to ensure the health and safety of the

facility's residents."

13 / I d.

14 / I d.

15 / I d.

16 / See Fla. Admin. Code R. 65G - 2.009(5)(b)5. , supra , n. 7.

17 / Rule 65G - 2.008(6)(d) requires licensed facilities to

maintain " [a] weekly written schedule indicating staff coverage

for at least one week in advance. Weekly schedules of actual

staff coverage shall be maintained for a six - month period and

provided to the Regional Office upo n request."

18 / The Developmental Disabilities Individual Budgeting Waiver

Services Coverage and Limitations Handbook, 2 - 50, applicable to

Respondent, states : "Monitoring for competence must occur at

least once per month for 50% of direct service staff that have

completed the training described above. Ñ

19 / Rule 65G - 8.003(1) provides:

All facilities or providers subject to this

rule shall develop and implemen t policies and

procedures consistent with the provisions of

this rule chapter, including adoption of an

approved emergency procedure curriculum,

appropriate staff training, record

maintenance, reporting and recording the use

of any reactive strategy, train ing in the

provisions of this rule chapter, data

collection, and maintenance of reactive

strategy consent information in client

records, and any other requirements

established in this rule chapter.

20 / Rule 65G - 2.009(1)(a)1. - 3., provides:

(1) MINIMUM STANDARDS. Residential

facility services shall ensure the health

and safety of the residents and shall also

address the provision of appropriate

physical care and supervision.

(a) Each facility shall:

1. Facilitate the implementation of clien t

support plans, behavior plans, and any other

directions from medical or health care

professionals as applicable;

2. Contact the clientÓs support

coordinator, as necessary, to ensure the

timely provision of needed medical and

dental care; and

3. Partic ipate in staff training and

meetings as required by the Agency.

21 / I d .

COPIES FURNISHED :

Kevin Rivers

New Life Charities, Inc.

17130 Southwest 41st Court

Ocala, Florida 34473

Andrew F. Langenbach, Esquire

Agency for Persons with Disabilities

Suite S430

400 West Robinson Street

Orlando, Florida 32801

(eServed)

Brian F. McGrail, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

David De Lapaz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Dir ector

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 issue the Final Order in this case.