STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 95-0128

) 95-0129

) 95-5678

1. T. HOLDING, INC., d/b/a ) ARIES RETIREMENT LIVING, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal videoteleconference hearing in the above-styled case on June 14, 1996, with the parties appearing in West Palm Beach, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Linda L. Parkinson, Esquire

   Agency for Health Care Administration Division of Health Quality Assurance

   400 West Robinson Street, Suite S-309 Orlando, Florida 32801

   
   

   For Respondent: Esther A. Zaretsky, Esquire

   1655 Palm Beach Lakes Boulevard Forum III, Suite 900

   West Palm Beach, Florida 33401 STATEMENT OF THE ISSUE

   Whether Respondent's license to operate an assisted living facility (ALF) [formerly known as adult congregate living facility (ACLF)] should be renewed; and whether Respondent committed the violations of minimum standards as set forth in the administrative complaint dated October 26, 1995; and, if so, what penalty should be imposed.

   
   

   PRELIMINARY STATEMENT

   
   

   These cases evolved from multiple disputes between the parties: the denial of Respondent's request for an increase in capacity for its ACLF/ALF; the denial of Respondent's license renewal; and three administrative complaint cases. Two of the administrative complaint cases (addressed in DOAH Case Nos. 94-5078 and 94-6908) were resolved by final order entered by the agency on May 15, 1995.

   These cases are relevant only to the extent that the administrative fine

   associated with such cases remains at issue. Respondent has attempted to place the final order from those cases in dispute but acknowledges Respondent did not timely appeal the final order.

   
   

   When Respondent determined an appeal was not filed, Respondent then attempted to have the agency reissue the final order so that an appeal could be filed. The Department declined to reissue the final order but sent the matter to the Division of Administrative Hearings. This record does not disclose whether a final order was entered on the recommended order from that case (DOAH Case No. 95-4483). In summary, the recommended order concluded that the agency clerk had certified mailing the final order to Respondent's counsel of record, and Respondent had alleged no facts to rebut the presumption of service, therefore, no issue remained to be addressed by formal hearing. The final order from DOAH Case Nos. 94-5078 and 94-6908 remains in effect unless judicially stayed or reversed.

   
   

   As to the other cases, the request for an increase in capacity for the ACLF/ALF was withdrawn by the applicant (DOAH Case No. 95-0128) at the time of hearing. The second licensure case (DOAH Case No. 95-0129) which remained at issue at the time of hearing was whether Respondent, W.T. Holding, Inc., d/b/a Aries Retirement Living, is entitled to have its license to operate an ACLF, now ALF, renewed.

   
   

   In connection with the renewal issue, the Agency for Health Care Administration (AHCA or the Department) has alleged that Respondent is not entitled to license renewal based upon: uncorrected deficiencies from surveys and follow-up surveys of the facility (as alleged in DOAH Case No. 95-5678 addressed herein), the corporate standing of the Respondent having lapsed, a history of late payment of administrative fines, and the unpaid administrative fine in the amount of $8,000.00 (imposed from DOAH Case Nos. 94-5078 and 94- 6908).

   
   

   In response to the allegations, Respondent continues to maintain that it did not receive the final order entered in DOAH Case Nos. 94-5078 and 94-6908, that its corporate status is now in good standing with the Secretary of State, and that all deficiencies noted in any prior survey have been corrected.

   Respondent has stipulated it did not remit the $8,000.00 administrative fine assessed by the final order entered from DOAH Case Nos. 94-5078 and 94-6908.

   
   

   At the hearing, the Department presented testimony from the following witnesses: Lois Shimmin; area supervisor for the office of health quality assurance for the Department's West Palm Beach area office; Joseph Narkier, a human services surveyor employed by AHCA; and Jerry M. Lattimer, senior human services program specialist with the ALF section. AHCA exhibits numbered 2 through 9 were admitted into evidence. Official recognition has been taken of the recommended and final orders entered in DOAH Case Nos. 94-5078 and 94-6908. The Respondent presented the testimony of Willie Davis, president of W.T. Holding, Inc.

   
   

   The transcript of the proceedings was filed with the Division of Administrative Hearings on July 3, 1996. Specific rulings on the parties' proposed findings of fact are included in the appendix at the conclusion of this order.

   FINDINGS OF FACT

   
   

   1. At all times material to the allegations of this matter, Respondent was licensed to operate an assisted living facility at 817 Eleventh Street, West Palm Beach, Florida.

      
      

   2. The Department is the state agency charged with the responsibility of regulating, and assuring compliance with state laws governing, assisted living facilities.

      
      

   3. Joseph Narkier, a human services surveyor employed by AHCA, was assigned to perform an appraisal of the Respondent's facility in September, 1995. He visited the facility on September 27, 1995, along with Polly Weaver, chief of field operations.

      
      

   4. In accordance with his instructions, Mr. Narkier did not perform a full survey but only looked at certain items, "tags," which had historically been out of compliance at the facility.

      
      

   5. Based upon his review, Mr. Narkier found the following deficiencies at the Aries Retirement Living facility:

      
      

      1. Respondent failed to display its current license inside the facility as required by state standard A 003. This deficiency had been cited on an earlier survey, March 14, 1995.

         
         

      2. Fiscal records were not on the premises, thus Respondent could not identify income and expenses as required by state standard A 100. This deficiency had also been cited on March 14, 1995.

         
         

      3. Since fiscal records were not on the premises, it could not be determined that the facility was administered on a sound financial basis as required by state standard A 101. This deficiency had also been cited on March 14, 1995.

         
         

      4. The Respondent did not produce an accurate written admission and discharge record as required by state standard A 201. This deficiency had also been cited on March 14, 1995.

         
         

      5. The Respondent did not produce an executed contract for each resident dated at the time of admission as required by state standard A 300. There were three residents for whom no evidence of a contract, executed at admission, could be produced. This deficiency had also been cited on March 14, 1995.

         
         

      6. State standard A 301, which relates to the content of the resident contract, was also deficient. Since there were no contracts for three residents, the contract content did not exist. This deficiency had also been cited on March 14, 1995.

         
         

      7. The Respondent did not have medical records or other support documentation to show that one resident had had a medical examination either within sixty days prior to admission or within thirty days after admission to the facility. Such exams are required to verify the residents are free of signs and symptoms of any communicable disease which is likely to be transmitted to other residents and is required by state standard A 406.

      8. The Respondent also could not produce documentation regarding admissions criteria as required by state standard A 408.

         
         

      9. According to records for one resident, medications were to be administered by a licensed professional. Since records did not verify the medications were administered according to the physician's orders, state standard A 601 was not met.

         
         

      10. Electrical outlets in the kitchen were not maintained in a safe condition in violation of state standard A 901.

          
          

      11. Hot and cold water faucets were not identified by use of the "H" and "C" initials as required by state standard A 1023.

          
          

   6. The records needed to verify the facility was in compliance with the state standards were not made available to the surveyors prior to their departure from the facility.

      
      

   7. Moreover, fiscal records were not made available to Mr. Narkier at the follow-up review on November 21, 1995.

      
      

   8. The fiscal records were not available until a third survey date, February 13, 1996, the second follow-up date.

      
      

   9. Based upon the foregoing, at the time of the survey Respondent had at least six class III deficiencies. None of the excuses suggested by Respondent to explain the survey findings has been deemed credible.

      
      

   10. This Respondent has a history of deficient performance. Two prior contested administrative complaints resulted in findings of numerous violations. Those violations were fully addressed in DOAH Case Nos. 94-5078 and 94-6908.

       
       

   11. On April 5, 1995, a recommended order was entered in DOAH Case Nos. 94-5078 and 94-6908. That order was adopted and incorporated by reference in the final order entered by AHCA on May 15, 1995.

       
       

   12. The final order entered in DOAH Case Nos. 94-5078 and 94-6908 imposed an administrative fine in the amount of $8,000.00 which Respondent has not paid.

       
       

   13. In addition to this outstanding administrative fine, Respondent has a history of two other administrative actions which also resulted in administrative fines. In DOAH Case No. 92-2415, the parties entered into a stipulation wherein Respondent agreed to pay a fine in the amount of $1,125.00. The Respondent did not timely remit that administrative fine.

       
       

   14. The second administrative action also resulted in an administrative fine. That case was not referred to the Division of Administrative Hearings. The final order (AHCA Exhibit 4), entered on August 8, 1991, imposed an administrative fine in the amount of $750.00. Respondent eventually paid this fine on April 22, 1992.

       
       

   15. Respondent has consistently failed to honor the state standards set for this type facility.

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   17. Section 400.414, Florida Statutes, provides, in pertinent part:

       
       

       1. The agency may deny, revoke, or suspend a license issued under this part or impose an administrative fine in the manner provided in chapter 120. At the chapter

          120 hearing, the agency shall prove by a preponderance of the evidence that its actions are warranted.

       2. Any of the following actions by a facility or its employee shall be grounds for action by the agency against a licensee:

          1. An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility;

          2. The determination by the agency that the facility owner or administrator is not of suitable character or competency, or that the owner lacks the financial ability, to provide continuing adequate care to residents, pursuant to the information obtained through s. 400.411, s. 400.417,

             or s. 400.434.

          3. Misappropriation or conversion of the property of a resident of the facility.

          4. Five or more repeated or recurring identical or similar class III violations of this part which were identified by the agency during the last biennial inspection,

       monitoring visit, or complaint investigation and which, in the aggregate, affect the health, safety, or welfare of the facility residents.

       
       

   18. Section 400.401(3), Florida Statutes, provides:

       
       

       The principle that a license issued under this part is a public trust and a privilege and is not an entitlement should guide the finder of fact or trier of law at any administrative proceeding or in a court action initiated by the Agency for Health Care Administration to enforce this part.

       
       

   19. Section 400.417(1), Florida Statutes, provides:

       
       

       Biennial licenses issued for the operation of a facility, unless sooner suspended or revoked, shall expire automatically 2 years from the date of issuance. The agency shall notify the facility by certified mail 120 days prior to the expiration of the license

       that relicensure is necessary to continue operation. Ninety days prior to the expiration date, an application for renewal shall be submitted to the agency. A license shall be renewed upon the filing of an application on forms furnished by the agency if the applicant has first met the requirements established under this part and all rules promulgated under this part.

       * * *

       A license for the operation of a facility shall not be renewed if the licensee has any outstanding fines assessed pursuant to this part which are in final order status.

       
       

   20. As to the deficiencies alleged in DOAH Case No. 95-5678, the Department has established, by clear and convincing evidence, that the Respondent was deficient in six instances of class III violations of Chapter 400, Florida Statutes. The failure to provide fiscal records (two separate violations), the lack of documentation regarding admissions and medical examinations (two separate violations), the failure to document contracts on admission, and inadequate documentation to verify physician's orders were met all demonstrate this Respondent violated the provisions of the act. That most of these violations were repeated offenses of past deficiencies also demonstrates this Respondent's indifference to the state standards mandated for this type facility. Each of the violations noted affect the health, safety, or welfare of the facility residents. Residents admitted without appropriate medical screening or exemption who might pose a communicable threat to other residents would significantly impact a facility. The failure to document compliance with physician orders demonstrates a potential threat to resident health or welfare. Even the potential financial insecurity of the facility (which could not be known since Respondent refused to provide its records until a subsequent follow-up visit) would adversely impact residents should they have to be relocated.

       
       

   21. As to the renewal of Respondent's license, the Department has established, by clear and convincing evidence, that Respondent has an $8,000.00 fine which remains outstanding and for which Respondent has made no payment. The final order entered in DOAH Case Nos. 94-5078 and 94-6908 remains in effect unless and until it is stayed or reversed by an appellate court. Respondent's

       argument that the final order should be reissued to enable Respondent to file an appeal has been addressed elsewhere. Finally, even if the final order from DOAH Case Nos. 94-5078 and 94-6908 were reversed, the Department has established that this facility should not receive a renewal of its license.

       
       

   22. Agencies are not required to make determinations in a vacuum. AHCA has proved Respondent's pattern of failing to meet state standards continues uncorrected. This Respondent has had ample opportunity to become familiar with the state standards. The surveys from this case (and those which documented the long history of past violations) were sufficient notice of the types of corrections this facility has had to make. It has done the minimal to correct deficiencies. Second or third follow-up surveys were required to bring Respondent's facility into compliance. Respondent has no entitlement to the license and, based upon the repeated conduct these violations demonstrate, should not have the privilege of licensure.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Agency for Health Care Administration enter a final order dismissing Case No. 95-0128 since the applicant has withdrawn the request to increase capacity of the ALF; denying the renewal of licensure sought in Case No. 95-0129; and imposing an administrative fine in the amount of $1,200.00 in Case No. 95-5678.

DONE AND ENTERED this 30th day of September, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1996.

APPENDIX TO RECOMMENDED ORDER

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1, 3, 11, 12, 13, and 14 are accepted.

2. With regard to paragraphs 2, and 4 through 10, such paragraphs reiterate findings of fact made in DOAH Case Nos. 94-5078 and 94-6908 which have been adopted by final order and are not at issue in this proceeding. As a matter of law, unless set aside such findings remain in effect.

3. Paragraph 15 is rejected as hearsay.

Notwithstanding that Respondent's proposed findings of fact failed to comply with Rule 60Q-2.031(3), Florida Administrative Code, and contained multiple facts per paragraph (some of which could not be accepted while others could), to the extent possible, the following rulings on the proposed findings of fact submitted by the Respondent are made:

1. The first sentence of paragraph 1 is accepted; the remainder is rejected as irrelevant or inaccurate. An administrative proceeding related to two complaints against this Respondent which found numerous violations resulted in a final order being entered by the Department.

2. With regard to paragraph 2, the last sentence is accepted; the remainder of the paragraph is rejected as irrelevant or inaccurate or procedural issues unrelated to this matter. Further, as to the unannounced survey conducted by Mr. Narkier, notice of an intended survey is not required as a matter of law.

3. With regard to paragraph 3, it is accepted a current license was not displayed. Otherwise rejected as contrary to the weight of the credible evidence.

4. Paragraph 4 is rejected as irrelevant or contrary to the weight of the credible evidence. The violation stems from the failure to display the current license.

5. Paragraph 5 is rejected as mischaracterization of the testimony or contrary to the weight of the credible evidence.

6. Paragraphs 6 through 8 are rejected as no record cited supported the findings or irrelevant or contrary to the weight of the evidence in its entirety.

COPIES FURNISHED:

Sam Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Building 3 Tallahassee, Florida 32308-5403

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Building 3 Tallahassee, Florida 32308-5403

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Building 3 Tallahassee, Florida 32308-5403

Linda L. Parkinson, Esquire

Agency for Health Care Administration Division of Health Quality Assurance

400 West Robinson Street, Suite S-309 Orlando, Florida 32801

Esther A. Zaretsky, Esquire 1655 Palm Beach Lakes Boulevard Forum III, Suite 900

West Palm Beach, Florida 33401

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-000128CON

Orders for Case No: 95-000128CON