17-005506 Mid Florida Community Services, Inc. vs. Department Of Children And Families Status: Closed Recommended Order on Monday, June 4, 2018.

Summary: Petitioner proved it is entitled to exemption from licensure as a childcare facility.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MID FLORIDA COMMUNITY SERVICES,

INC.,

Petitioner,

vs. Case No. 17 - 5506

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursu ant to notice, on March 2, 2018, Administrative Law

Judge Yolonda Y. Green, of the Division of Administrative

Hearings (ÐDivisionÑ), conducted a final hearing by video

teleconference in Daytona Beach and Tallahassee, Florida,

pursuant to section 120.57(1), Florida Statutes (2017) .

APPEARANCES

For Petitioner: Jennifer C. Rey, Es quire

The Hogan Law Firm

20 South Broad Street

Brooksville, Florida 34605

For Respondent: Jane Almy - Loewinger, Esquire

Department of Children and Families

210 North Palmetto Avenue , Suite 447

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

Whether PetitionerÓs five Head Start / pre - K Exceptional

Student Education (ÐESEÑ) blended c lassrooms involving the

Volusia County School DistrictÓs Joint Educational Program are

entitled to an exemption from childcare licen sure.

PRELIMINARY STATEMENT

By letter dated August 22, 2017, the Department of Children

and Families ( ÐDepartmen t,Ñ Ð DCF, Ñ or ÐRespondentÑ) notified

Petitioner, Mid Florida Community Services, Inc. (ÐMid FloridaÑ

or ÐPetitionerÑ), that its request for an exemption from

licensure as a childcare facility was denied. In response to

the denial, Petitioner timely reques ted a formal administrative

hearing. On October 3, 2017, this matter was referred to the

Division for final hearing.

On January 24, 2018, the undersigned issued a Notice of

Hearing scheduling the final hearing for March 2, 2018. On

February 20, 2018, the parties filed their Joint Prehearing

Stipulation. The stipulated facts, to the extent relevant, have

been incorporated in this Recommended Order.

On March 2, 2018, t he hearing convened as scheduled . At

the final hearing, Petitioner presented the testi mony of four

wit nesses , including: Heidi Rand, d irector of E arly L earn ing

P rograms for Mid Florida ; Jeffrey H e yne, q uality a ssurance

m anager for Mid Florida ; Kimberly Gilliland, d irector of ESE for

Volusia County School District (Ð VCS Ñ) ; and Jennifer Kell y,

c o ordinator of ESE for VCS (by deposition). PetitionerÓs

Exhibits 1 through 12 were admitted into evidence . Respondent

presented the testimony of Samantha Wass De Czege, f amily

s ervices counselor s upervisor of the O ffice of C hild C are

R egulation for D CF ; and Shelley Tinney, O perations and

Management Consultant II of the O ffice of Child Care Regulation

for DCF. RespondentÓs Exhibits 5, 9, and 10 were admitted into

evidence.

The Transcript of the hearing was filed with the Division

on March 13, 2018. The parties timely filed Proposed

Recommended Orders, which have been carefully considered in

preparing this Recommended Order.

Unl ess otherwise indicated, all statutory references are to

Florida Statutes (2017).

FINDING S OF FACT

The following Finding s of F act are based on exhibits

admitted into evidence, the testimony offered by witnesses, and

admitted facts set forth in the Prehearing Stipulation .

1. Respondent, DCF, is the state a gency responsible for

regulating childcare facilities in Florida.

2. Petitioner, Mid Florida, is a private, not - for - profit

501(c)3 Florida corporation operating various social service and

early education programs. Petitioner operates 20 different Head

Start classrooms in three counties , including Hernando, Sumter,

and Vo lusia Counties.

3. Petitioner initiated a relocation of Westside Head

Start Classroom (ÐWestsideÑ), one of its existing Head Start

classrooms , from a portable located on the real property of

Westside Elementary School, which is part of th e VCS , to a

classroom lo cated directly inside W estside Elementary School .

4 . As Westside was licensed by DC F as a child care facility

prior to the relocation, Mid Florida completed and submitted a

childc are l icense q uestionnaire to DCF for a determination as to

w hethe r Westside , now located within the Westside Elementary

Scho ol, still needed to be licensed.

5. In response to the childcare license q uestionnaire for

Westside, the Departmen t issued a determination letter, dated

August 2 2, 2017. Rather than limiting its determination to

Westside, the Department stated that 18 of Mid FloridaÓs Head

Start classrooms, located in three different counties, were

subject to licensure. Those 18 sites included five VCS Head

Start programs operated in partnership with Mid Florida.

6 . The five VCS sites at which Petitioner provides Head

Start program services are commonly known as Head Start Ð b lended

c lassrooms. Ñ The term Ðb lended classrooms Ñ refers to the

inclusion of students that are typically developing peers that

are not oth erwise students of VCS into Volusia County School

classrooms with students with disabilities. The blended

c lassrooms include Blue Lake Head Start b lended c lass room,

Deltona Lakes Head Start blended c lassroom, Horizon Head S tart

blended c lassroom, Indian R iver Head Start blended c la ssroom,

and Woodard Head Start blended c lassroom.

7 . The five blended c lassrooms are not currently , and have

never been , licensed as childcare facilities.

8 . VCS provides K - 12 public education in Volusi a County,

and provide s certain pre - kindergarten ( p re - K ) ESE programs in

accordance with the Individuals with Disabilities Education Act

(IDEA). The IDEA requires public schools to provide services

for students with disabilities aged three to 21, including a

free and appropria te public education.

9 . In 2008, Head Start programs, among others, were

identified by the Florida Department of EducationÓs Bureau of

Exceptional Student Education and Student Services as one of the

potential partners for schools to expand opportunities for

sc hools to provide services to pre - K children with disabilities.

10 . In 2009, VCS implemented p re - K ESE programs for

students aged three and four with various levels of

disabilities . VCS implemented the program , which was designed

to place st udents with disabilities in a lear ning environment

with typically developing peers. Typically developing peers a re

students without disabilities who acquire specific skills and

behaviors according to a predictable rate and sequence .

11 . In 2010, VCS contacted Mid Florida to explore the

possibility of Mid Florida collaborating with VCS to expand

blended pre - K ESE p rogram s to include a Head Start b lend ed

c lassroom.

12 . As the need to serve more students wit h disabilities

increased , VCS expanded its p re - K ESE P rograms to inclu de

different types of blended classrooms .

13 . As a result, VCS entered into a Coop erative Agreement

(ÐCoop AgreementÑ) with Mid Florida for Referral, Evaluation,

Placement , and T ransition Head Start; Florida Diagnostic

Learning Resource System (Ð FDLRS Ñ) Child Find ; and p re - K ESE

programs . The Coop Agreement served as the basis to establish

the b lended p re - K/ Head Start program provid ed by VCS as part of

Mid FloridaÓs services offered to serve students with

disabilities.

14 . VCS pre - K ESE p rog rams include partial - day, full - day,

and blended p re - K classroom options (at issue in this matter).

Students in partial - d ay programs receive two and a half hours of

instruction in a separate class setting. Students in full - d ay

programs receive a full day of instruction in a separate class

setting.

15 . All ESE students participating in any of the VCS pre - K

ESE p rograms , including blended pre - K programs, have

individualized education plans (IEP) subject to age - appropriate

standards established by the State Board of Education.

1 6 . T here are four types of VCS blended p re - K VE programs:

employee blended, Head Start blended, community b lended, and the

Easter Seals Charter School. The e mployee - blended c lassrooms

pair eight ESE VCS students, and 10 non - E SE students that are

children of VCS employees, but not otherwise VCS students. The

Head Start blended c lassrooms pair eight ESE VCS students, and

10 non - ESE students that are not otherwise VCS students, but are

eligible to enroll in a Head Start program. The c ommunity -

b lended c lassroom pairs eight ESE VCS students and 12 non - ESE

voluntary pre - k students from the community who are not

otherwise VCS students. The Easter Seals Charter School is a

private, not - for - profit charter school operated by Easter Se als,

and p airs eight ESE students with 10 non - ESE students

(identified and enrolled by Easter Seals). Overall, the blended

classrooms are required to meet Department of Education

standards.

17 . VCS determines each year whether there is a need or

not for a Head Start blended c lassroom at each of its locations.

VCS monitors a feeder pattern of students to identify VCS

students aged thr ee to five that are in need of p re - K ESE

s ervices, and then determines at what loc ations and how many

Head Start blended c lassrooms will be needed in any given school

year. If VCS determines that a Head Start blended c lassroom is

not needed, then Mid Florida would not provide services under

the Coop Agreement for that c lass room, and the non - ESE typically

developing peer/stud ents would be relocated to either another

VCS Head Start blended c lassroom, or to a Head Start site not

associated with VCS , such as Westside .

18 . The facilities, classroom, and playground for Head

Start blended classrooms (used by students) are provided by VCS .

1 9 . The c urriculum used in the VCS Head Start blended

c lassrooms are selected and approved by VCS , and then Mid

Florida must adapt its Head Start services to that curriculum.

At all of its other non - blended classroom Head Start locations,

Mid Fl orida has used a different curriculum than what was

adopted by VCS for the Head Start b lended c lassroom. The

curriculum is implemented using a co - teaching model in which

instructional, and other staff, in the Head Start blended

c lassrooms work collaborati vely to implement the curriculum .

20 . The blended pre - K /Head Start p rogram is staffed with

one VCS teacher, one VCS paraprofessional, one Mid Florida Head

Start teacher, and one Mid Florida Head Start assistant. The

VCS teacher and paraprofes s ional have primary responsibility for

ensuring that the ESE students with IEPs obtain the level of

instruction and other services required under the IEP, and that

age - appropriate standards are being taught. The Head Start

teacher has primary responsibility for ensur ing that all

students enrolled in the Head Sta rt program receive Head Start

s ervices, a nd the Head Start assistant aid s the Head Start

teacher in carrying out Head Start services.

21 . Supervision of all students in the classroom is the

responsibility of all instructional , and other staff, in the

classroom. However, ultimate responsibility for the safety and

security of the students resides with the VCS teacher, and

ultimately the VCS principal. Therefore, it is the particular

school sitesÓ policy on par ent pick - up and drop - off that must be

adhered to by all parents of students participating in a Head

Start blended c lassroom. Any parent or other volunteer visiti ng

or working in the Head Start blended c lassrooms must meet VCS

screening standards, must adh ere to VCS policies applicable to

school classrooms, and must adhere to the security and sign - in

procedures in place at each school site. For all students in

the b lended p re - K /Head Start p rogram, both ESE and non - ESE

students, the school principal/adminis trator has the final

authority about whether or not a student may be sent home due to

a studentsÓ behavior or conduct.

22 . The Head Start blended c lassrooms follow the VCS

instructional schedule and calendar , including dismissal days

and hurricane closur e make - up days.

23 . The VCS Ó policies on health services and communicable

diseases take priority in Head Start blended classrooms over any

similar policies in place for Mid Florida Head Start programs .

24 . The VCS principals have input regarding food p lan and

administration of meals. Generally, the Head Start program

emphasizes meals being served family style. While Head Start

may encourage family - style eating, t he principal of the

respective blended classroom facility determines the method of

meal se rvices. For instance, a principal may permit meals to be

delivered to the classroom. On the other hand, a principal may

require that the Head Start students eat in a cafeteria. In

short, VCS and the Mid Florida work together to determine the

method of d elivery of meal services for blended classrooms .

25 . The evidence offered at hearing demonstrates that one

purpose of the partnership between Mid Florida and VCS is for

Mid Florida to provide services to VCS pursuant to the Coop

Agreement necessary for VC S pre - K children with disabilities to

achieve academic success and high quality of life. Another

purpose is to ensure compliance with the Head Start Act of 2007.

Based on the totality of the circumstances, t he evidence

demonstrated that the five Head Sta rt blended classroom sites

(Blue Lake, Deltona, Horizon, Indian River, and Woodward) are

integral programs of the VCS .

26. T herefore, given these facts, Petitioner is not

required to license the five sites as c hild care facilities .

CONCLUSIONS OF LAW

2 7 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2017).

28 . Chapter 402, Florida Statutes, requires the Department

to administer a progr am for licensure of child care facilities.

As part of its program , the Department is also responsible for

determining whether a facility caring for children qualifies for

exemption from licensure or if licensure or registration as a

child care fa cility is r equired. § 402.302(2)(a ), Fla. Stat.

29 . Section 402.302 broadly defines the term child care

facility. The section states in relevant part:

(2) ÐChild care f acilityÑ includes any

child care center or c hild care arrangement

which provides child ca re fo r more than five

children unrelated to t he operator and which

receives a payment, fee , or grant for any of

the children rec eiving care, wherever

operated, and whethe r or not operated for

profit. The following are not included:

(a) Public scho ols and nonpublic schools

and their integral programs, except as

provi ded in s. 402.3025.

30 . Section 402.3025(1) provides an exemption from

licensure as a childcare facility. The section states in

relevant part:

(a) The following programs for childre n

shall not be deemed to be child care and

shall not be subject to the provisions of

ss. 402.301 - 402.319 :

* * *

2. Programs for children who are at least

3 years of age, but who are under 5 years of

age, provided the programs are operated and

staffed di rectly by the schools and provided

the programs meet age - appropriate standards

as adopted by the State Board of Education.

* * *

(b) The following programs for children

shall be deemed to be child care and shall

be subject to the provisions of ss. 402.301 -

402.319 :

1. Progra ms for children who are under

5 years of age when the programs are not

operated and staffed directly by the

schools.

31 . At i ssue in this matter, is whether the five VCS

blended classroom sites operated pursuant to the Coop Agreement

must be lice nsed as child care facilities. Petitioner asserts

that the programs are integral programs of VCS . On the other

hand, Respondent asserts that the programs are not exempt as

they are not operated and staffed directly by the schools.

32 . Section 402.302 d oes not define the term Ðintegral

program , Ñ and s ection 402.3025 does not define Ðoperated and

staffed directly by the schools.Ñ

33 . The DepartmentÓs interpretation of the statutes it

administers and over which it has jurisdiction is afforded wide

discre tion. Cone v. State, DepÓt of Health , 886 So. 2d 1007,

1009 (Fla. 1st DCA 2004). As the court stated in Republic

Media, Inc. v. Department of Transp ortation , 714 So. 2d 1203,

105 (Fla. 5th DCA 1998):

[A] n agency is afforded wide discretion in

the interpr etation of a statute which it is

given the power and duty to administer. Its

construction of the statute will not be

overturned on appeal unless its clearly

erroneous.

34 . Although the Department is afforded wide discretion in

its interpretation of stat utes related to its jurisdiction, it

is bound by the actual language of the statute and, where such

language is plain and unambiguous, there is no occasion for the

DepartmentÓs interpretation. Ocampo v. Dep't of Health ,

806 So. 2d 633, 634 (Fla. 1st DCA 2 002); Fl a . Dep't of Ins. &

Treasurer v. Bankers Ins. Co. , 694 So. 2d 70 (Fla. 1st DCA

1997); Cone v. State, DepÓt of Health , 886 So. 2d at 1009 ;

Larimore v. State , 2 So. 3d 101, 106 (Fla. 2008); Forsythe v.

Longboat Key Beach Erosion Control Dist. , 604 So . 2d 452, 454

(Fla. 1992); and Daniels v. Fla. Dep't of Health , 898 So. 2d 61,

64 (Fla. 2005).

35 . As the party seeking the exemption, Petitioner must

establish by a preponderance of the evidence that it is entitled

to the exemption. See Fla. DepÓt of Tr ansp. v. J.W.C. Co. ,

778 (Fla. 1st DCA 1981).

36 . In this case, Petitioner has demonstrated that the

blended classrooms operated pursuant to the Coop Agreement are

integral program s of the VCS . VCS directly operated and staffed

the blended classroom s , se lected and approved the curriculum

used in the blended classrooms , and require d Mid Florida to use

the curriculum. The blended classrooms have both VCS and Mid

Florida teachers assigned to the classroom. However, the Mid

Florida teachers were required to be approved by VCS . The VCS

principals were the final authority and ultimately responsible

for supervision of the students. The VCS followed the calendar,

instructional discussion , and the health services policies. The

classrooms are also located on VC S Ó property. Based on the

foregoing, the Head Start blended program is an essential

component for VCS to meet the goals to provide services for

disabled children. The roles of Mid Florida and VCS are so

intertwined that if Mid Florida was separated from the

partnership , VCS could not meet its goal to provide necessary

service s to children with disabilities. Thus, the five b lended

classroom sites at issue here are an integral program of the

VCS . As a result, Petitioner demonstrated that the five sites

ar e entitled to an exemption from licensure as child care

facilities .

37 . Since Petitioner is excluded from the definition of

childcare provider, Petitioner is not subject to section

402.3025 with regard to the blended classrooms . Thus, it is not

necessary to address that analysis in this Order .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a final order as follows:

1. Finding PetitionerÓs five Head Start/ p re - K blended

classroom s are e xempt from licensure as child care facilities ,

pursuant to section 402.302(2)(a); and

2. R eversing the decision requiring Petitioner to license

the five Head Start/ pre - K blended clas srooms as childcare

facilities.

DONE A ND ENTERED this 4th day of June , 2018 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 4th day of June , 2018 .

COPIES FURNISHED:

Jane Almy - Loewinger, Esquire

Department of Children and Families

2 10 North Palmetto Avenue , Suite 447

Daytona Beach, Florida 32114

(eServed)

Jennifer C. Rey, Esquire

The Hogan Law Firm

20 South Broad Street

Brooksville, Florida 34605

(eServed)

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

John Jackson, Acting General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

D epartment of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions with in

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.