STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-4935

) GLORIA ANN RAULERSON, d/b/a ) COUNTRY SUNSHINE RETIREMENT ) HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference before Larry J. Sartin, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on February 12, 1999.

APPEARANCES

For Petitioner: Michael O. Mathis, Senior Attorney

Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive

Tallahassee, Florida 32308 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether the license to provide assisted living facility services and operate an assisted living facility of Respondent, Gloria Ann Raulerson, d/b/a Country Sunshine Retirement Home, should be revoked based upon the

allegations of an Administrative Complaint entered by Petitioner on or about October 2, 1998.

PRELIMINARY STATEMENT

On or about October 2, 1998, Petitioner, the Agency for Health Care Administration, entered an Administrative Complaint against Respondent, Gloria Raulerson, d/b/a Country Sunshine Retirement Home, informing Respondent that Petitioner intended to revoke her license to provide assisted living facility services and to operate an assisted living facility. On or about

October 26, 1998, Respondent filed a response to the Administrative Complaint and requested a formal administrative hearing on the charges contained in the Administrative Complaint.

Respondent's request for hearing and a copy of the Administrative Complaint were filed with the Division of Administrative Hearings by Notice from Petitioner on November 4, 1998. The petition was designated Case No. 98-4935, and was assigned to the undersigned.

By notice entered December 3, 1998, the formal hearing of this case was scheduled to commence at 9:00 a.m., on February 12, 1999. The day before the formal hearing was scheduled to commence, Respondent informed the undersigned's office that she did not intend to participate in the formal hearing.

The hearing commenced as scheduled and was completed at 10:20 a.m. Respondent did not appear at any time during the formal hearing.

The hearing was conducted by video teleconference. The court reporter, counsel for Petitioner, and Petitioner's witnesses were located at a state office building in Jacksonville, Florida, and the undersigned was located at a state office building in Tallahassee, Florida.

At the formal hearing Petitioner presented the testimony of Robert Dickson and Eleanor McKinnon. Petitioner's Exhibits 1 through 11 were entered into evidence.

A transcript of the hearing was filed on March 8, 1999. Petitioner's proposed order was, therefore, due on or before April 8, 1999. Petitioner filed a proposed order on March 19, 1999. The proposed order has been fully considered in entering this Recommended Order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, the Agency for Health Care Administration (hereinafter referred to as "AHCA"), is an agency of the State of Florida. AHCA is charged with the responsibility for, among other things, evaluating assisted living facilities in the State of Florida. Part III of Chapter 400, Florida Statutes (1997).

   2. Respondent, Gloria Raulerson, d/b/a Country Sunshine Retirement Home, is licensed to operate an assisted living facility.

   3. Country Sunshine Retirement Home (hereinafter referred to as the "Country Sunshine"), is located at 6119 Peeples Lane, Jacksonville, Florida.

   4. Ms. Raulerson's current license was effective for the period January 25, 1997, through January 24, 1999. No application for renewal of the license has been filed by

      Ms. Raulerson.

      
      

2. AHCA's Initial Survey.

   
   

   1. On April 21, 1998, AHCA staff conducted an appraisal visit of Country Sunshine (hereinafter referred to as the "Initial Survey").

   2. Following the conclusion of the Initial Survey, AHCA issued a survey report (hereinafter referred to as the "Initial Report") in which it concluded that Country Sunshine had committed a number of violations of regulatory standards. A copy of the Initial Report was provided to Ms. Raulerson on or about April 19, 1998.

   3. During the Initial Survey AHCA found 12 class II violations, approximately 56 class III violations, and two unclassified violations. The exact number of class III violations was not proved. The Administrative Complaint alleges a total of 77 violations. The testimony at hearing was that there were 69 violations. Based upon Exhibit 1, there was a total of 70 violations, 12 of which were class II violations and

      two of which were unclassified; but the exhibit is missing pages

      
      

      88 and 89.

      
      

   4. The violations found by AHCA during the Initial Visit "range from general licensure standards, from things having to do with paperwork; to lack of staff training; to lack of financial stability; to nutrition/dietary standards; to violations with medication standards; violations of resident care standards; violations of housekeeping, maintenance, and physical plant standards; and then resident and staff records." Page 9, lines

      6-12, Transcript.

      
      

   5. The specific nature of the class III violations found during the Initial Survey is reported in the Initial Report, Petitioner's Exhibit 1. The specific nature of the class III violations described in Petitioner's Exhibit 1 is hereby incorporated into this Recommended Order by reference.

3. AHCA's Moratorium.

   
   

   1. By letter dated April 22, 1998, AHCA informed Ms. Raulerson that a moratorium was being imposed on the admission of any new residents to Country Sunshine.

   2. Ms. Raulerson complied with the moratorium imposed on Country Sunshine.

4. AHCA's Second Survey.

   
   

   1. AHCA staff returned to Country Sunshine on June 4, 1998, to determine if the violations found during the Initial

      Survey had been corrected (hereinafter referred to as the "Second Survey").

   2. It was determined during the Second Survey that Country Sunshine had 29 of the same class III violations found during the Initial Survey. Country Sunshine also had 4 repeat class II violations, a repeat of the same 2 unclassified violations found during the Initial Survey, and 2 new class III violations.

   3. The violations found by AHCA during the Second Survey were described more particularly in a survey report (hereinafter referred to as the "Second Report"). A copy of the Second Report was provided to Ms. Raulerson on or about June 19, 1998. The cover letter that accompanied the Second Report informed

      Ms. Raulerson that further administrative action against her license, including revocation of her license, would be considered by AHCA.

   4. The specific nature of the class III violations found during the Second Survey are reported in the Second Report, Petitioner's Exhibit 3. The specific nature of the class III violations described in Petitioner's Exhibit 3 are hereby incorporated into this Recommended Order by reference. The evidence proved that the violations affected the health, safety, or welfare of residents of Country Sunshine.

5. The Administrative Complaint.

1. On October 2, 1998, AHCA issued an Administrative Complaint against Ms. Raulerson.

2. The Administrative Complaint alleged that

   
   

   Ms. Raulerson's license should be revoked pursuant to Sections 400.414(2)(b), (e), (h), and (5), Florida Statutes (1997), the law in effect at the time the violations were committed.

3. In particular, AHCA alleged in the Administrative Complaint that Country Sunshine had "committed five or more repeated or recurring or similar Class III violations which were identified by the Agency during the last biennial inspection, monitoring visit or complaint investigation, which, on the aggregate, affect the health, safety or welfare of facility residents."

4. AHCA did not specifically allege in the Administrative Complaint that Ms. Raulerson's license should be revoked or disciplined due to any repeated or recurring class II or unclassified violations.

5. AHCA alleged in the Administrative Complaint there were

   
   

   34 repeated or recurring violations but actually listed 36 specific repeat or recurring violations. The evidence, however, failed to prove that one of those alleged violations, A-811, was a repeat or recurring violation. Two of the specific violations, A-612 and A-814, are unclassified violations and not class III violations. Finally, four of the violations, A-101, A-705, A- 807, and A-1001, are class II violations and not class III violations.

6. AHCA did not rely in the Administrative Complaint upon the unclassified violations and/or the repeated class II violations, in addition to the repeated class III violations, to support its determination that Country Sunshine had violated Sections 400.414(2)(b) and (h), Florida Statutes (1997).

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes (1997).

8. The burden of proof in this proceeding was on AHCA, the party asserting the affirmative of the issue: that Ms. Raulerson committed the offenses alleged in AHCA's Administrative Complaint. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

9. Section 400.414(1), Florida Statutes, requires that AHCA prove the alleged violations by "a preponderance of the evidence."

10. Section 400.434, Florida Statutes (1997), gives AHCA the right to inspect assisted living facilities for compliance with Part III, Chapter 400, Florida Statutes. Pursuant to this authority, AHCA inspected Country Sunshine during 1998.

11. During the Initial Visit, AHCA found that Country Sunshine had committed numerous class III violations. A class

    III violation is defined in Section 400.419(3)(c), Florida Statutes (1997), as follows:

    (c) Class III violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or class II violations. A class III violation is subject to a civil penalty of not less than $100 and not exceeding $500 each violation. A citation for a class III violation shall specify the time within which the violation is to be corrected. If a class III violation is corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense.

12. After notifying Ms. Raulerson of the class III violations and informing her that she was required to develop a plan or correction for each violation, the second survey was conducted.

13. During the Second Survey, which occurred a little over two months after the initial Survey, AHCA determined that Country Sunshine was still committing 29 of the class III offenses found during the initial Survey.

14. Section 400.414(1), Florida Statutes (1997), provides that AHCA may "deny, revoke, or suspend any license issued under this part, or impose an administrative fine . . . " for any of thirteen specifically listed actions of an assisted living facility or an employee thereof.

15. In this case, AHCA has alleged that Country Sunshine has committed three of those actions listed in Section 400.414(1), Florida Statutes (1997):

    (b) 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.

    
    

    * * *

    
    

    (e) 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.

    
    

    * * *

    
    

    (h) Failure of the licensee during relicensure, or failure of a licensee that holds an initial or change of ownership license, to meet minimum license standards or the requirements of rules adopted under this part.

    
    

16. The evidence in this case failed to prove that

    
    

    Ms. Raulerson violated Section 400.414(1)(b), Florida Statutes (1997). While the evidence proved that Ms. Raulerson was guilty of having committed numerous uncorrected violations of Part III, Chapter 400, Florida Statutes (1997), the evidence failed to prove that she was "not of suitable character or competency." While the evidence proved that Ms. Raulerson had failed to keep adequate financial records, no evidence was presented to prove

    that she lacked "the financial ability to provide continuing adequate care to residents."

17. The evidence in this case did prove that Ms. Raulerson committed more than five "repeated or recurring identical or similar class III violations . . . which, in the aggregate, affect the health, safety, or welfare of the facility residents." In fact, the Country Sunshine committed 29 repeated or recurring identical or similar class III violations.

18. The evidence in this case also proved that Ms. Raulerson violated Section 400.414(1)(h), Florida Statutes (1997). While the evidence failed to prove that Ms. Raulerson was involved in relicensure, the evidence did prove that, as the holder of "an initial . . . license" she failed "to meet minimum license standards or the requirements of rules adopted under this part."

19. Having violated Sections 400.414(1)(e) and (h), Florida Statutes (1997), AHCA has met its burden of proof in this case. Given the number of violations, revocation of Ms. Raulerson's license is warranted.

20. AHCA has also requested that it be recommended that the Final Order in this case provide that "further renewal applications by Respondent to operate as an Assisted Living Facility be denied." No authority which supports such a recommended future action has been cited by AHCA. Nor is the undersigned aware of any such authority.

21. Finally, AHCA has cited sections of Part III, Chapter 400, Florida Statutes (1998 Supp.), in its Proposed Recommended Order. Those provisions, however, have no bearing on this case. The pertinent sections were amended by Chapters 98-80 and 98-171, 1998 Laws of Florida. Those chapters were effective on

October 1, 1998, and July 1, 1998, respectively. The events at issue in this proceeding occurred prior to the effective date of either chapter. See Walker v. La Berge, Inc. v. Halligan, 344 So. 2d 239, 241 (Fla. 1977); Automobile Insurance Co. of Hartford, Connecticut v. Beem, 469 So. 2d 138, 141 (Fla. 3d DCA 1985).

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Agency for Health Care Administration revoking the license of Gloria Ann Raulerson, d/b/a Country Sunshine Retirement Home, to own and operate an assisted living facility in the State of Florida.

DONE AND ENTERED this 19th day of April, 1999, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

COPIES FURNISHED:

Gloria Raulerson 6119 Peeple Lane

Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1999.

Jacksonville, Florida 32219

Michael O. Mathis, Senior Attorney Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive

Tallahassee, Florida 32308

Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

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.

Docket for Case No: 98-004935

Orders for Case No: 98-004935