STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 99-0114

)

MORRIS MANOR (Wilhelmena Morris, ) d/b/a Morris Manor), )

)

Respondent. )

)

RECOMMENDED ORDER

Wilhelmena Morris, Administrator, sought to renew the license for Morris Manor, an Assisted Living Facility (ALF). On October 14, 1998, that application was denied for the following reasons:

1. There is a confirmed neglect report on file, #97-071366. A confirmed neglect report, as defined in section 415.102, F.S. which has been upheld following a Chapter 120 hearing or a waiver of such proceedings where the perpetrator is an employee, volunteer, administrator, or owner, or otherwise has access to the residents of a facility, and an exemption of disqualification has not been granted, is grounds for denial of the license, section 400.414(2)(f), F.S.

   
   

2. As terms of the Agency's Final Order dated 1/27/98, you were to provide financial documentation to the Agency's Finance and Accounting Department for determination of your financial ability to operate. You were requested by letter to provide this documentation on 3/4/98, 6/2/98, and 8/21/98. All three of your submissions of this requested documentation were found to be inadequate by the Finance and Accounting

Department to determine your financial stability. This is grounds for denial of your license, section 400.414(2)(b), F.S.

The notice of denial of the renewal application issued by the Agency for Health Care Administration (AHCA) reminded

Ms. Morris of her right to contest that preliminary decision. Ms. Morris did contest the decision concerning both grounds for denial. Specifically, Ms. Morris requested an administrative hearing to dispute the issues concerning confirmation of

Ms. Morris as the perpetrator of neglect under FPSS Report

No. 97-071366 maintained by the Department of Children and Family Services (DCFS). See Section 415.102, Florida Statutes.

Ms. Morris also gave specific reasons for contesting the proposed denial on the basis that Ms. Morris did not have the financial ability to operate the ALF.

AHCA referred Ms. Morris' request for hearing to the Division of Administrative Hearings to conduct necessary proceedings to resolve the disputes between the parties, reserving the right to file appropriate motions.

The case was scheduled to be heard on April 20, 1999. The case was not heard on that date based upon an uncontested oral motion by Ms. Morris to delay the hearing because of her illness. This order serves to memorialize the decision granting the continuance. The parties had agreed to reset the case to be heard on May 19, 1999.

Prior to the case being heard AHCA filed a Motion for Summary Recommended Order or Order to Show Cause. That motion was not responded to in writing.

Notwithstanding the Respondent's failure to file a written response to the Motion for Summary Recommended Order to Order to Show Cause, the motion was called for oral argument. That oral argument took place by telephone conference on May 14, 1999.

The essence of the Motion for Summary Recommended Order concerns the consequence of the decision by DCFS to confirm

Ms. Morris as the perpetrator in FPSS Report No. 97-071366. That case was considered before the Division of Administrative Hearings in the case of Department of Children and Family Services vs. W. M., DOAH Case No. 98-0015C. This eventuated in a recommended order to confirm the report, followed by a final order confirming the report. Ms. Morris does not dispute the existence of a final order confirming the report, rather,

Ms. Morris wishes to re-litigate the underlying facts of that case. AHCA in its motion argues that Ms. Morris in the interest of Morris Manor may not re-litigate the facts involved with the decision to confirm the report of her neglect.

AHCA cites to Section 400.414(1)(g), Florida Statutes (1998 Supp.), which carried forth the language in the previous Section 400.414(1)(f), Florida Statutes (1997), as creating an absolute bar against the renewal of the ALF license for Morris Manor.

AHCA further argues that it would not avail Respondent anything to succeed in contesting the preliminary decision to deny renewal based upon AHCA's concern about the Respondent's financial wherewithal to operate the ALF.

Section 400.414(1)(g), Florida Statutes (1998 Supp.) states:

The agency may deny . . . any license issued under this part . . . for any of the following actions by an assisted living facility, any persons subject to level No. 2 background screening under Section 400.4174, or any facility employ.

* * *

(g) A confirmed report of adult abuse, neglect, or exploitation, as defined in

s. 415.102, which has been upheld following a chapter 120 hearing or a waiver of such proceedings where the perpetrator is an employee, volunteer, administrator, or owner, or otherwise has access to the residents of a facility, and the owner or administrator has not taken action to remove the perpetrator. Exemptions from disqualification may be granted as set forth in s. 435.07. No administrative action may be taken against the facility if the perpetrator is granted an exemption.

As established in the oral argument, Wilhelmena Morris, Administrator for Morris Manor, did not appeal the confirmed report determining that she was the perpetrator of neglect. As the administrator, Ms. Morris could not be expected to be removed from the ALF, consistent with the terms set forth in the statute, in that she is in charge of the ALF. Ms. Morris has not sought an exemption from disqualification in accordance with Section 435.07, Florida Statutes. Therefore administrative action may be

imposed against the facility. In this instance, the appropriate action is the denial of the license renewal in a setting in which Respondent can not defend herself on the basis of fact or law given the outcome in DOAH Case No. 98-0015C.

RECOMMENDATION

Upon consideration, it is RECOMMENDED:

That a final order be entered which denies the license renewal for Morris Manor to operate as an Assisted Living Facility.

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

CHARLES C. ADAMS

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

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

COPIES FURNISHED:

Thomas W. Caufman, Esquire Agency for Health

Care Administration

6800 North Dale Mabry Highway 220

Tampa, Florida 33614

Wilhelmena Morris, Administrator Morris Manor

Post Office box 309 Ocklawaha, Florida 32179

Sam Power, Agency Clerk Agency for Health Care

Administration

Fort Knox Building 3, Suite 3431

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

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: 99-000114

Orders for Case No: 99-000114