20-003755 Raising Florida Early Learning Accreditation Program vs. Department Of Children And Families Status: Closed Recommended Order on Tuesday, December 15, 2020.

Summary: Petitioner's application for approval as a Gold Seal Accrediting Association was properly denied. EBS was not active and accrediting child care facilities for 5 years prior to its application.

P RELIMINARY S TATEMENT

Respondent, Department of Children and Families ( " DCF " ), by

correspondence dated June 30, 2020, notified Petitioner that it was denying

Petitioner ' s Gold Seal Quality Care Accrediting Association Application.

Petitioner, Raising Florida Early Learning Accreditation Program ( " Raising

Florida " ), timely requeste d an admini strative hearing challenging DCF ' s

denial. DCF referred the matter to the Division of Administrative Hearings (" DOAH ") to conduct a hearing pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

The final hearing was conducted as schedu led on October 1, 2020.

Petitioner presented the testimony of Daniel Osborne, Ellyn Bogdanoff, and Diana Layton. Petitioner submitted Exhibits 1 through 13 , which were

admitted into evidence. DCF presented the testimony of Tripp Crouch, Felicia

Bonner, and Dinah Davis. DCF submitted E xhibits 1 through 5, 7, and 8 ,

w hich were admitted into evidence .

The two - volume Transcript was filed on October 26 , 2020. Both parties

timely filed proposed recommended orders , which were taken into

consideration in the draft ing of this Recommended Order. Unless otherwise

indicated, citations to the Florida Statutes refer to the version in effect at the

time of the application denial.

F INDINGS OF F ACT

Gold Seal Accreditation

1. This case involves the State of Florida ' s Gold S eal Quality Care

designation ( " Gold Seal designation " ) provided to qualified child care facilities

pursuant to s ection 402.281, Flo r ida S t atutes.

2. The Gold Seal designation signifies a child care facility ' s successful

completion of an application and aud it process to determine its adherence to

heightened standards . It entitle s the bearer to numerous potential benefits,

including tax exemptions, higher reimbursement rates for School Readiness,

eligibility to participate in the Voluntary Pre - K indergarten pr ogram, and it

can be an important marketing tool for child care providers .

3. To be eligible for Gold Seal designation, a child care facility must meet

a defined set of qualifications and standards . Whether those standards are

met is based upon the assessm ent provided to DCF by an approved

accrediting association.

4. An entity does not need to be approved by DCF to accredit child care

providers. However, an entity must be approved by DCF as a Gold Seal

Quality Care Accrediting Association to provide the ver ification to DCF for

the pu rpose of Gold Seal designations .

5. An accrediting association attests that a child care facility receiving its

certification meets the Gold Seal standards. O nly the State of Florida

approves and " issues " the actual Gold Seal cer tification .

The Parties

6 . DCF is authorized to approve Gold Seal A ccrediting A ssociations. The

Children ' s Forum is contracted by DCF to manage the Gold Seal Program.

7 . Enterprising Business Solutions, Inc. ( " EBS " ) , is the accrediting

association applican t at issue in this case . EBS has been a registered

corporation in Florida since 1997. It is a business consulting and management firm. Its President, former Florida State Representative and

Senator Ellyn Bogdanoff, was significantly involved in passing leg islation

and rules governing child care facilities and accreditation. Petitioner, Raising

Florida , is the name of EBS ' s accreditation product and is registered as a

fictitious name of EBS .

8. On January 30, 2020, EBS filed an initial Gold Seal Quality Care

Accrediting Association Application (the " Application " ) with the Children ' s

Forum .

The application was reviewed by DCF and the Florida Children ' s

Forum .

9. On June 30, 2020, DCF issued a Notice of Denial letter denying the

Application . The Department ' s st ated reason for denying the application was

because EBS " failed to provide supporting documentation to demonstrate

that the accrediting association has been established in issuing accreditation

in Florida for at least five years, Rule 65C - 22.009(4)(a)1, Fl orida

Administrative Code. " In addition, DCF stated that an accrediting

association " must demonstrate that it is a recognized accrediting association,

s. 402.281(3)(a)1, Florida Statutes. "

EBS ' Role with FACCM

10. T he Florida Association for Child Care Man agement ( " FACCM " ) is an

organization made up of, and representing, child care providers in Florida. It

advocates on behalf of child care facilities, and it also created the APPLE

child care accreditation program.

11 . APPLE is the FACCM accreditation produ ct issued to its child care

member facilities , which qualify for the accreditation. To qualify, child care

facilities are required to meet a defined set of qualifications and standards,

determined by the APPLE program . APPLE is a recognized Gold Seal

accre diting tool. If a child care facility is certified by APPLE, it becomes

eligible to receive the Gold Seal designation, pursuant to s ection 402.28 1.

12. In M ay 2012 , Ms. Bogdanoff and her management company, EBS,

were retained by FACCM to oversee its growin g membership of child care

facilities, oversee its lobbying efforts, and to manage the APPLE accreditation program. Ms. Bogdanoff was appointed Executive Director on a

part - time basis and reported to FACCM ' s Board. Dan Osborne, the then -

Board President of FACCM , explained that retaining Ms. Bogdanoff and

EBS was an effort to get the Board out of FACCM ' s day - to - day operations.

Ms. Bogdanoff worked for FACCM through EBS until May 2018.

13. As FACCM ' s Executive Director, Ms. Bogdanoff

rewrote APPLE ' s

existing standards for accreditation. She also developed a training program

for child care centers to help them achieve accreditation, visit ed the centers

to administer that training program to educate centers regardi ng

accreditation benchmarks, oversaw a FACCM sta ff to manage the

accreditation process, including an APPLE Director (Ms. Layton), and several

other directors of mark et ing, operations , and CORE, who all reported directly

to Ms. Bogdanoff and EBS, not the FACCM Board.

14. From May 2012 through May 2018, Ms. Bogda noff and FA C CM staff

determined which programs passed the APPLE accreditation process, a nd

which did not.

15. During this time period, c hild care facilities accredited under APPLE

receive d a certification or notification from APPLE -- not from FACC M or EBS .

However, as a minimum requirement for Gold Seal consideration using the

APPLE criteria, the child care facilities were required to be members of

FACCM . APPLE accreditation accounts for nearly all of FACCM ' s generated

revenues, and the availabilit y of Gold Seal accre ditation certification is a

prima r y incentive for membership in FACCM .

16. There is no written contract detaili ng the relationship between

Ms. Bogdanoff, EBS, and FACCM . Nothing was sent to child care facilities

from FACCM referencing E BS. The child care centers , which were Gold Seal

qualified through APPLE , had a relationship with FACCM , not EBS. EBS

was the means to contract with , and pay , Ms. Bogdanoff for her expertise.

17. In support of the Application, Ms. Bogdanoff attached a lett er of

support from Mr. Osborne that indicated that he looked " forward to becoming

[EBS ' s] first Provider client. " EBS was the management company that

oversaw the APPLE accrediting process, however, EBS did not hold itself out

to be an accrediting agency no r did it issue certifications of meeting Gold Seal

standards other than through FACCM.

C ONCLUSIONS OF L AW

18 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this case pursuant to sections 120.569 and

1 20.57(1).

19. DCF is the state agency charged with regulating providers that are

license d to provide child care in the S tate in Florida, pursuant to

sections 402.301 - 402.319, and Florida Administrative Code Chapter 65C - 22 .

20. As such, DCF is authorized to regulate the Gold Seal designation

prog ra m pursuant to section 402.281. In order to be approved as an

accrediting association for the purpose of Gold Seal qualification , the

association must demonstrate to DCF that it is a " recognized " accredit ing

associa tion. § 402.281(3)(a)1 . , Fla. Stat.

21. DCF is further authorized to promulgate rules to provide criteria and

procedures for reviewing and approving accrediting associations for

participation in the Gold Seal Quality Care program pursuant to sectio n

402.28 1(5) .

22. Rule 65C - 22.009 sets for th the criteria to be authorized by DCF as a

Gold Seal Quality Care Accrediting Association as follows:

(4) Gold Seal Quality Care Accrediting Association

Requirements.

(a) An accrediting association seeking recognition

a s a Gold Seal Quality Care Accrediting Association

must:

1. Have been active and accrediting child care

facilities in Florida for a period of five years prior to

submission of an application to the Department.

2. Hold an active corporation registration w ith the

Florida Department of State to do business in

Florida.

3. Submit and meet all requirements outlined on the CF - FSP Form 5315, Gold Seal Quality Care

Accrediting Association Application, May 2019,

which is incorporated by reference. CF - FSP Form

5315 may be obtained from the Department ' s

website at www.myflfamilies.com/childcare or from the following link:

http://www.flrules.org/Gateway/reference.asp?No=

Ref - 10508 .

4. Submit a crosswalk of the Accrediting Association ' s standards with the Department ' s

Gold Seal Quality Standards.

23. There is no dispute that EBS met the requir ements of subsections 2

and 4. DCF asserts that EBS is not a recognized accrediting a ssociation. DCF

argues that EBS was not " accrediting " child care facilities in Florida for t he

five years immediately preceding its application.

24. Further DCF asserts that EBS does not meet the requirements of

subsection 3 because the Gold Seal Quality Care Accr editing Association

Application includes the requirement that the accrediting assoc iation be

" established and issuing accredita tion in Florida for five years " (emphasis

added) , and that EBS was neither established n or issuing accreditation.

25 . Although s ection 402.281(3)(a)1 . requires an association seeking

accreditatio n status to demon strate that it " is a recogn ized accrediting

association, " t he term " recognized " is not defined in the statute. It does not

specify whether " recognized " is , in terms of public recognition, recognized in

the child care facili ty industry , recognized by the S t ate of Florida Division of

Corporations, or otherwise.

26 . DCF , by and through the Children ' s Forum, improperly inserted its

own interpretation of the term " recognized " to mean that it must be

recognized by DCF or the Children ' s Forum, or maintain a web si te for

five years.

27 . Howe ver, this is a de novo review. When confronted with a statutory

term that is subject to multiple possible interpretations, the rules of statutory

construction mandate that the " plain meaning " of the term be applied.

28 . Accordin g to the Oxford Learner ' s Dictionary, the verb " recognize " is

" to know who someone is or what something is when you see or hear them,

because you have seen or heard them or it before . "

29 . In this case, it does not matter whether " recognized " means recogni zed

by DCF, the C hildren ' s F orum, child care facilities, or the general public

because there was no evidence of any kind that EBS was " recognized " or

known to anyone as an accrediting association , either in the five years

immediately preceding its applicat ion , or during any five year period.

Although EBS was registered with the Florida Division of Corporations since

1998, there was no evidence presented that anyone ha d seen or heard of it as

a child care accrediting association.

30 . EBS argues that names sh ould not be determinative and that it

essentially stepped in the shoes of FACCM to do the work of accrediting child

care facilities for Gold Seal approval . N otably, while Ms. Bogdanoff managed

the APPLE accrediting tool for FACCM in her role as Executive D irector, she

at no time held herself , or EBS , out as an accrediting association. Further,

the rule governing the Gold Seal Quality Care Program, rule 65C - 22.099(4)(l)

provides:

An Accrediting Association approved by the

Department as a Gold Seal Quality Ca re

Accrediting Association may not contract with or otherwise authorize any other entity or parties,

including affiliated groups and membership groups

or subgroups, to issue accreditations to Florida child care providers for the purposes of Gold Seal desig nation.

31 . Accordingly, Ms . Bogda noff and EBS could not legally have been

contracted to issue accreditations 1 to FACCM ' s members.

32 . Similarly, EBS was not an association " established and issuing

accreditation in Florida for five years " as set forth in the applic ation form

incorporated into rule 65C - 22.099(4)(1) .

33 . According to Ms. Bogda noff, EBS is a management company , which

provides services to non - profits . She explained that non - profit boards do not

like to get involved in hiring employees so they utilize a non - profit

management firm. EBS also provided services to the South Florida Business

Association and the Women ' s Chamber of Commerce. No evidence was

presented that EBS was providing a ccreditation in any capacity other than

incidental to its man agement services for FACCM .

34 . While Ms . Bogda noff ' s role in developing the highest standards for

Florida ' s child care fa cilities , as a legislator, advocate , and as former

Executive Director of FACCM, is commendable , EBS failed to demonstrate by

a prepond erance of the evidence that it meets the requireme n ts of the statu t e

or rule to be certified as a Gold Seal Quality Care accrediting association. 2

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Petiti oner ' s application for approval as a Gold Seal

Quality Care Accrediting Association be denied.

1 As i ndicated i n paragraph 5 herein, only the s tate of Florida actually " issues " accreditation.

However, as used by both parties throughout these proceedings, when referring to

associations " issuing " accreditation, it is understood that this means issuing the c ertification

upon which DCF relies that the child care facility meets the applicable Gold Seal standards.

2 EBS presented evidence that DCF recently approved the application of another entity ,

Cognia, which EBS alleges did not exist as an accrediting ass ociation for five years preceding

its application. Insufficient evidence was presented from which the undersigned could discern the circumstances of the DCF approval of that application , and , therefore, it was not

considered in this determination .

D ONE A ND E NTERED this 15th day of December , 2020 , in Tallahassee,

Leon County, Florida.

M ARY L I C REASY

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

this 15th day of December , 2020 .

C OPIES F U RNISHED :

Stefanie Beach Camfield, Esquire

Department of Children and Families

Building 2, Suite 204

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Wi newood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mark J. Stempler, Esquire

Becker & Poliakoff, P.A.

7th Floor

625 North Flagler Drive

West Palm Beach, Florida 33401

(eServed)

Javier A. Enriquez, Esquire

Department of Children and Families

Bu ilding 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Chad Poppell, Secretary

Department of Children and Families

Building 2, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.