STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMANOLE BROOK ASSISTED LIVING, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1708

) STATE OF FLORIDA, AGENCY FOR ) HEALTH CARE ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing before Ella Jane P. Davis, a duly-assigned Hearing Officer of the Division of Administrative Hearings, on May 13 and May 23, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Elizabeth McCorvey, Administrator

Semanole Brook Assisted Living 2101 Wakulla Street

Tallahassee, Florida 32310

For Respondent: Richard Ellis, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Building 3 Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUES

1. Is there a factual basis for the imposition of the March 7, 1996 moratorium upon admissions to Petitioner's assisted living facility (ALF), pursuant to Section 400.415 F.S.?; and

   
   

2. Is there a basis for continuing the moratorium?

PRELIMINARY STATEMENT

The Agency for Health Care Administration (AHCA) imposed a moratorium on admissions to Petitioner Semanole Brook Assisted Living, an ALF, on March 7, 1996.

Petitioner is a Florida corporation. Ms. Elizabeth McCorvey is its sole employee and administrator. She requested formal hearing by a March 13, 1996 letter. The case was referred to the Division of Administrative Hearings on April 1, 1996, pursuant to Section 120.57(1) F.S.

Petitioner requested an expedited hearing and the cause was scheduled for May 13, 1996. Despite a suggestion of surprise at the commencement of formal hearing, Ms. McCorvey announced herself ready to proceed on May 13, 1996.

It was represented that this case involved a moratorium pursuant to Section

400.415 F.S. placed by Respondent AHCA upon Ms. McCorvey d/b/a Semanole Brook Assisted Living. The agency offered no statute or rule providing a different duty to go forward, so it was ruled that the agency had the duty to go forward to establish the elements of the statute.

The agency presented the oral testimony of Linda L. Mabry, Kathryn Rowland, Betty Jean Cettie, and Kenneth Arnold and had five out of six exhibits admitted in evidence.

Ms. Elizabeth McCorvey testified on behalf of Petitioner and had eleven exhibits admitted in evidence.

At the close of formal hearing, Ms. McCorvey requested an opportunity to make copies of certain exhibits admitted in evidence. When the collected exhibits were returned to the undersigned, three exhibits were missing.

Thereafter, apparently due to some misunderstanding about how and when to submit post-hearing proposals, Ms. McCorvey faxed or mailed other items to the Division of Administrative Hearings.

On May 23, 1996, the undersigned convened a live hearing during which the original court reporter read portions of her electronic stenographic notes from the May 13, 1996 formal hearing so that consensus could be reached as to which exhibits had been admitted and to substitute copies for the missing exhibits.

With the express agreement of the agency's counsel and Ms. McCorvey, all exhibits were agreed to, even to the extent of permitting some supplementation of original exhibits by Ms. McCorvey. At that point, the record was closed.

The transcript of the May 13, 1996 formal hearing was filed June 24, 1996. The transcript of the May 23, 1996 formal hearing was filed July 2, 1996. AHCA filed its proposed recommended order on July 8, 1996. Petitioner's proposed recommended order amounts to an interlineation of Respondent's proposals and an attempt to further supplement the record. It was faxed to the Division on July 12, 1996.

Only matters within the record have been considered. Only the parties' respective proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. ALFs are defined in Section 400.402(3) F.S. They must apply for, and be granted, a license or provisional license to operate by AHCA pursuant to the terms of Section 400.411 F.S.

   
   

2. There is no clear evidence in this record whether Semanole Brook Assisted Living was licensed to operate under Section 400.412 F.S. by a full or provisional license. The best sense of the evidence as a whole is that Semanole Brook was operating in the first five months under some type of licensure.

3. This case arises because AHCA imposed a moratorium upon admissions on March 7, 1996. Moratoriums on admissions to ALFs are to be imposed pursuant to Section 400.415 F.S.

   
   

4. Administrators of ALFs or their designees are trained under a program administered by the Department of Elder Affairs (DOEA). Intensive training is provided over the course of four days, and includes an introduction to the licensure and survey process, appropriateness of admissions, fire safety, food safety, nutrition, aging, mental health, behavior issues, resident rights, medication management, abuse reporting, developmental disabilities, community resources, emergency management, and the role of the long-term care ombudsman. This training is referred to as "core training".

   
   

5. In the course of care training, participants are given a copy of the administrative rules and Florida Statutes applicable to ALFs. Participants are also given a copy of survey guidelines used by AHCA.

   
   

6. In the course of care training, participants are advised of the requirement than an ALF have a written contract with each resident of the ALF.

   
   

7. Core training is offered quarterly.

   
   

8. Elizabeth McCorvey attended care training for Petitioner's ALF, Semanole Brook Assisted Living Facility, in September and October, 1995. She was permitted to represent the facility in these proceedings upon evidence that she is the sole employee and administrator of Semanole Brook. Any qualifications or certifications of hers are attributable to the facility and vice-versa.

   
   

9. Ms. McCorvey missed that portion of care training in September 1995 which concerned medications, and therefore she did not earn a certificate of completion at that time.

   
   

10. Rather than making her wait until the next full training session, DOEA officials agreed to allow Ms. McCorvey to come to the premises where training was provided, and there to listen to an audio tape of the portion of care training she had missed in September 1995. She did not follow up on this accommodation to her schedule and instead attended that portion of the January 1996 care training which concerned medication. She received a certificate of completion of care training on February 8, 1996.

    
    

11. The topics which were covered with Ms. McCorvey in her core training were those described in Finding of Fact 4 supra. All such topics, with the exception of medications, were covered with Ms. McCorvey in September and October 1995.

    
    

12. A six hour update to core training was offered by DOEA in December 1995, concerning the administrative rules for ALFs. At formal hearing, Ms. McCorvey had admitted a certificate showing she completed this course.

    
    

13. Core training may be repeated if a given participant is asked to repeat it or if the participant requests to repeat it.

    
    

14. Respondent conducted a complaint investigation of Semanole Brook on March 6, 1996. Respondent's survey team was composed of Kathryn Rowland, Betty Cettie, and Shawn Rogers. At the time of this investigation/survey, the

    residents previously on the premises had already been relocated elsewhere. They were not removed by Petitioner or AHCA.

    
    

15. In the course of the complaint investigation of March 6, 1996, the AHCA survey team asked to see the admission/discharge register for residents of Semanole Brook. Ms. McCorvey did not produce an admission/discharge register.

    
    

16. Records pertaining to four residents of Semanole Brook were produced by Ms. McCorvey on March 6, 1996. Two of the records indicated that no health assessment was done for either resident prior to admission into Semanole Brook. The health assessments which had been made for the other two residents indicated that neither resident was appropriate for placement in an ALF.

    
    

17. In the course of the complaint investigation of March 6, 1996, Respondent further found that Semanole Brook's written contracts for residents were deficient in that the standard form did not state the exact services that the facility was to provide to residents, did not identify rates for payment, did not provide for 30 days' notice prior to an increase in rates, and did not state the facility's policy regarding advance payments or refund of payments.

    
    

18. In the course of the complaint investigation of March 6, 1996, Respondent further found that Semanole Brook had no written records for income and expenses. Respondent's survey team was told by Ms. McCorvey that she relied upon memory to keep track of the facility's income and expenses and did not consider documentation of income and expenses necessary.

    
    

19. In the course of the complaint investigation of March 6, 1996, Respondent further found that Semanole Brook's admissions packet (given to residents upon admission to the facility) did not include the facility's rules and regulations, nor the facility's admission, retention, and discharge policy, nor the facility medication storage policy.

    
    

20. In the course of the complaint investigation of March 6, 1996, Respondent further found that Semanole Brook's resident care standards were deficient.

    
    

21. Ms. McCorvey admitted to surveyors and at formal hearing that she had locked herself in her bedroom at night with a loaded gun she had owned before opening the facility. She testified that almost everyone "has a gun" these days, particularly single women like herself. She explained her behavior with the gun and the locked bedroom door as due to her fear of one particular resident, whose past medical history, if it had been properly assessed, would have shown the patient was not suitable for ALF placement due to violent tendencies. Ms. McCorvey only locked herself in her room after she discovered the patient had been released from a psychiatric hospital where he had been placed for three years after beating up a police officer. Inquiries at the time of the investigation showed Ms. McCorvey did not know at that time she could refuse certain types of patients. By the date of formal hearing, Ms. McCorvey understood she could refuse certain patients but was still vague about how to go about refusing to admit them. She still did not seem to appreciate that locking herself in her room left other residents potentially in harm's way and meant she was unavailable to assist them even with usual tasks.

    
    

22. Records for a resident identified as T.W. indicated that T.W. was admitted to Semanole Brook against medical recommendations, that T.W. was in need of skilled nursing care, and that T.W. was therefore inappropriately placed in a ALF.

23. Betty Jean Cettie, a member of Respondent's March 6, 1996 survey team, is a human services surveyor specialist with AHCA. She has a B.S. degree in Health Care Administration and is licensed in Florida as a Nursing Home Administrator. She is a fellow of, and certified by, the American College of Health Care Administrators. By education, training and experience, she is an expert in the field of long term sub-acute health care. No contrary expert testimony was presented, and Ms. Cettie's testimony and opinion are fully accepted to the effect that Ms. McCorvey, as administrator of Semanole Brook, at the time of the survey did not understand the requirements for admission to ALFs, had no understanding of one patient's dietary and medication needs, and that Ms. McCorvey needed further training as an ALF administrator if Semanole Brook was to operate safely. Nothing presented at formal hearing would alter this determination.

    
    

24. Ms. McCorvey testified regarding the four residents of Semanole Brook whose records were reviewed by Respondent's survey team. Resident T.W. was "a head injury client" who "walked around the house in his underwear." Resident C.W., the facility's first resident, "wandered off." Resident J.R. would "not fill out any kind of demographic data" other that what Ms. McCorvey "had written at the Tallahassee psychiatric unit," and was described as "paranoid". Resident

    E.E. also "wandered", and Ms. McCorvey was a "little confused with the back of the boxes that her doctor had checked out from PATH". The boxes as checked on the form would show inappropriate placement. E.E. was never formally discharged, but "wandered off" on February 21, 1996. Ms. McCorvey admitted personally witnessing E.E. leaving Semanole Brook, and testified that she was "not responsible or whatever" because "according to the law they can wander off if they want to, you know."

    
    

25. The deficiencies identified by Respondent's survey team during the complaint investigation of March 6, 1996 were documented on a statement of deficiencies. Although Ms. McCorvey has complained that she did not receive the statement of deficiencies at the appropriate time, the evidence shows she knew about all of the assessments of deficiency at all times material. It is specifically found that she received adequate notification in a timely manner.

    
    

26. Based upon the deficiencies found on March 6, 1996, Respondent imposed an immediate moratorium upon admissions to Semanole Brook on March 7, 1996.

    
    

27. Based upon the deficiencies as found on March 6, 1996, Respondent recommended that the administrator of Semanole Brook undergo further training in the operation of an ALF and correction of the listed deficiencies.

    
    

28. A follow-up survey was conducted of Semanole Brook by Respondent on April 6, 1996. It was determined on April 6 that the deficiencies found on March 6, 1996 had been corrected, with the exception of those relating to inappropriate placement of residents, additional training for the facility administrator, and resident care standard. With the exception of the additional training, which must precede admitting patients to the facility, the other two deficiencies usually are checked by AHCA after the facility is reopened because the residents can be surveyed then. That is certainly the only way it could be done in this case since there are no residents or resident records to review now that the facility is empty.

    
    

29. By letter dated April 15, 1996 AHCA continued the moratorium imposed on March 7, 1996, conditioned upon further training being completed by Ms.

    McCorvey as Semanole Brook's administrator. The recommended training is a repeat of the care training which lasts four 6-hour days.

    
    

30. Ms. McCorvey's testimony is not clear as to her prior experience. It may be that she assisted her parents with some type of charity work, but she apparently has no prior work experience operating a health facility. When it was operating, Ms. McCorvey was Semanole Brook's sole employee. Ms. McCorvey declined to testify as to how she is currently employed or to give much information about how she can be located. She testified that to support herself she is presently, "doing the same miscellaneous thing and whatnot", and stated that she considers the imposition of additional ALF training to be discriminatory and selectively enforced against her facility. Further, she finds such training to be so time-consuming as to be financially oppressive. However, she gave no concrete reason as to why she does not have time to repeat the training nor evidence of selective enforcement beyond uncorroborated hearsay and her personal opinion.

    
    

31. By letter dated April 23, 1996, Ms. McCorvey substantially disagreed with the condition of further training, describing the same as "punishment", an opinion she reiterated at formal hearing. This proceeding followed. 1/

    
    

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto, pursuant to Section 120.57(1), F.S.

    
    

33. Respondent may impose an immediate moratorium upon admissions to an ALF when Respondent determines that any condition in the facility presents a threat to the health, safety, or welfare of the residents in the facility. See, Section 400.415 F.S.

    
    

34. If DOEA or Respondent determines that there are problems in a facility that could be reduced through specified staff training or education beyond that required by Section 400.452, F.S., then DOEA or Respondent may require the training or education of any personal care staff in the facility. See, Section 400.452(8) F.S.

    
    

35. Rule 58A-5.003(4) F.A.C. gives as an example of "potential threats constituting grounds for a moratorium," the "[p]resence of residents inappropriately placed in the facility." Rule 58A-5.024 F.A.C. covers the facility's admissions/discharge register; 58A-5.21 covers fiscal standards, resident contracts and facility contracts. As facility administrator, Ms. McCorvey has been instructed in, and is charged by law with knowledge of all applicable rules, but she requires further explanatory and supplemental training to ensure the safety of ALF residents.

    
    

36. Despite there being no residents at Semanole Brook when the moratorium was imposed on March 7, 1996, there were conditions present which Respondent could reasonably determine constituted a threat to the health, safety, or welfare of residents of the facility if any more residents are admitted. Respondent proved that, out of the four residents of Semanole Brook prior to March 6, 1996, two residents were inappropriately placed, and the other two residents had not been assessed prior to admission. Respondent reasonably determined that the facility's prior practices constituted a threat to the health, safety, or welfare of future residents, and it was within its discretion under Section 400.415 F.S. to impose a moratorium upon such admissions.

37. Considering the deficiencies in their totality, Respondent had more than an adequate factual basis on March 7, 1996 for the initial imposition of the moratorium against Semanole Brook. It also bears noting that when the testimony of Ms. McCorvey is taken as a whole, she seems to have entirely missed the "safety of patients" issue. At formal hearing and by her proposed recommended order she consistently argued that AHCA should mind its own business because her facility caters to charity patients. AHCA's attempt to ensure that even no-pay and low-pay ALF residents receive reasonable, safe and adequate care is the business of that agency as provided by statute.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order ratifying the terms of the

moratorium as modified by the April 15, 1996 letter; requiring the correction of the remaining deficiencies, including the re-training of Ms. McCorvey; and establishing a schedule for compliance and a procedure by which Ms. McCorvey can establish compliance.

DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 27th day of August, 1996.

ENDNOTE

1/ Ms. McCorvey has sent materials with her proposed recommended order that purport to show she has had a review of deficiencies with care trainers by telephone in July 1996, after formal hearing. These items were not subject to cross-examination and objection by Respondent at formal hearing and are outside the record in this cause. They could not be considered here, even assuming arguendo they were self-authenticating or actually showed what she claims they show. See appendix.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

Petitioner was provided a post-hearing order explaining how to do post- hearing proposals. Petitioner has not complied with Chapter 60Q-2 F.A.C. for submittal of her proposed findings of fact and conclusions of law. All of her

submittal is therefore subject to being struck sua sponte. However, without objection, her submittal has been considered as follows:

The cover letter has been considered as rhetoric and statement of position only.

Petitioner has attached a copy of one of her exhibits admitted at formal hearing. It is covered in FOF 12.

Petitioner has attached a copy of a July 1, 1996 letter from or to Mrs.

Baur and a copy of a July 2, 1996 memorandum to Petitioner from Respondent agency. Neither item has been considered because it is outside the record. Petitioner has been repeatedly cautioned about the scope of the record and when it closed. See Preliminary Statement and Endnote.

Petitioner's proposed findings of fact have been interlineated on a copy of Respondent's proposal. Those interlineations not addressed to Respondent's proposed findings of fact are presumed to apply to the sections within which Petitioner made them. Therefore, although they have been read and considered, Petitioner's interlineations under "Statement of the Issues," "Preliminary Statement" and "Conclusions of Law," have not been ruled upon pursuant to Section 120.59(2) F.S. The factual proposals are ruled upon below. Because Petitioner's interlineations only address some of Respondent's numbered proposals, only the numbered proposals Petitioner addressed in her proposals are numbered/ruled upon here.

1, 9-10 Petitioner refers to a single piece of evidence which she has copied to show she completed an update course. It is accepted in FOF 12. She next refers to the items submitted with her proposals which are outside the record and which are rejected.

7, 25, 27-28, 29 Rejected as subordinate to the facts as found; largely irrelevant and/or mere argument.

22-24 Rejected as not supported by the credible record. The items inserted in the proposal have not been considered, however any similar material admitted in evidence before the record closed has been considered.

11 Rejected as subordinate to the facts as found. See FOF 25.

12, 14, 18-19 Accepted in FOF 28-29 so far as the record supports it.

Otherwise rejected as not supported by the record.

13, 15, 16, 18, 30 Rejected as mere argument. The welcome packet has been considered as described in FOF 28-29.

17 Covered in FOF 21.

Respondent's PFOF:

1-8, 10-16, 18-21 Accepted, except that unnecessary, subordinate, and/or cumulative material has not been adopted.

9 Rejected in FOF 12.

17 Rejected as incomplete. See FOF 21.

22-30 Accepted as modified to more nearly approximate the credible record as a whole and not exclusively Respondent's witnesses testimony; to eliminate unnecessary, subordinate, and/or cumulative material, and to track the statutory elements appropriate to this proceeding.

COPIES FURNISHED:

Elizabeth McCorvey

Semanole Brook Assisted Living 2101 Wakulla Street

Tallahassee, Florida 32310

Richard Ellis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Ft. Knox 3, Suite 3431

Tallahassee, Florida 32308-5403

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

Jerome W. Hoffman, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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: 96-001708

Orders for Case No: 96-001708