STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION ’ STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, . Vv. : . Case No. 2012003965 DONNA L. COOPER d/b/a COOPER’S RETIREMENT HOME, . Respondent. AD! TRAT. T COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration . (‘the Agency’), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, Donna L. Cooper d/b/a Cooper’s Retirement Home (‘Respondent’), pursuant to Sections 120,569 and 120.57, Florida Statutes (2011), and alleges: NA’ OF THE ACT This is an action against an assisted living facility (‘ALF’) to assess a fine for a State Class If violation (Count 1), to revoke its license (Count IL), and to assess a survey fee of five hundred dollars ($500.00).(Count IM), The total assessment is for one thousand five hundred dollars ($1,500.00). JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part Ui, and 429, Part I, Florida Statutes (201 1). 2. Venue lies pursuant to Florida Administrative Code (‘F.A.C.’) R. 28-106.207, Filed August 9, 2012 12:04 PM Division of Administrative Hearings PARTIES 3. The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of all applicable federal regulations, state statutes and rules governing assisted living facilities pursuant to the Chapters 408, Part IT, and 429, Part I, Florida Statutes, and Chapter 584-5, F.A.C., respectively. 4. Respondent operates a five bed ALF, Cooper’s Retirement Home, located at 1680 Maitland Ave, Maitland, Florida 32751, and is licensed as an ALF, license number 1 1870. 5. Respondent was at all times material hereto a licensed facility under the licensing authority of the Agency, and-was required to comply with all applicable rules and statutes. COUNT I- ASSESSMENT OF A FINE 6. The Agency re-alleges and incorporates paragraphs 1 through 5 above as if fully set forth herein. . . 7. ° On29" November, 2011, the Agency conducted two complaint inspections, also called surveys — the first one at the unlicensed ALF located at 602 Conrad Court, Altamonte Springs, the subject of the complaint (CCR # 2011012456), and second one at Respondent’s licensed ALF at 1680 Maitland Ave, Maitland (CCR # 2011012474), 8. As regards the licensed. ALF in Maitland, the owner/administrator is Donna Cooper, 9. As regards the Altamonte Springs location: , | a. There is no license for an ALF or other health care provider to operate there. b. ‘The license that was issued to Donna Cooper to operate an ‘adult family care home’ there expired on 16 April, 2011. c. That location is a single family home shown by the Seminole County Property Appraiser’s website to be owned by Samuel Vasquez, Donna Cooper is his wife. ‘ ‘ d. Donna Cooper has held herself out, along with her sister Janet Cooper, as - being affiliated with the “Altamonte Adult Family Care” at 602 Conrad Court, Altamonte Springs. See Exhibit 1. ; 10. — The following took place when the Agency’s inspector/surveyor went to the Altamonte Springs location: | a. The surveyor arrived at approximately 1:45 pm and was met by a woman who identified herself as Janet Cooper who said she lived there and could have up _to two residents without needing a license. The surveyor acknowledged that she was correct if she in fact lived there and if one or both residents were not related to her. | b. During a tour of the property, Janet Cooper pointed out her room when asked but there was no clothing, shoes nor personal items in that room and the unmade bed had only a plain covering draped across it, A second bedroom with two beds was a’ female resident’s room (resident #1). ‘A third bedroom was that of a male resident (resident # 2), The status of the residents will be addressed below. c.. The surveyor asked Ms. Cooper for her driver’s license as she was headed to her car to leave. She replied that she did not have it with her. She was then asked if she wasn’t about to get into the driver's seat. Ms. Cooper did not reply. d. During the inspection a caregiver who was present stated that she had been working there for about one month. She said she provided assistance with bathing, dressing and sometimes feeding, adding that Janet Cooper was the one who assisted the residents with their medications. Before that she had worked at Respondent’s Cooper’s Retirement Home for three to four months. . e. Janet Cooper stated that this property belonged to her sister, Donna Cooper, and that it used to be licensed as an adult family care home and that her sister planned to obtain a new license to operate it as an ALF instead. f. Janet Cooper was informed that she was operating an unlicensed facility and was . given written notice to immediately cease and desist the illegal operation, 11. — The following took place when the Agency conducted its second inspection, the one at Respondent’s Maitland location: a. The surveyor’s review of the admission/transfer/discharge log showed that resident #1 was discharged from the facility on 9/16/1 1due to the expense and that she went home with her son. | . b. Resident #2 did not appear on the admission discharge log, but it was stated that he was a respite resident and was only at the facility for one week and that he went to live at the Altamonte Springs location (the one complained about as being operated as an unlicensed ALF), . &, Resident #3 was discharged on 9/18/11 due to the expense and went to live with his son, d. Based on the earlier/first inspection at 602 Conrad Court it was determined that resident’s #1 and # 2 was tesiding at that location, not the Maitland location. See paragraph 10. b. above. e. Based on an interview with Donna Cooper, the owner/administrator, she | acknowledged that she was aware of and agreed to transfer those two residents to the 602 Conrad Court property although it'was no longer licensed for any type of operation, She further explained that so many people were coming in and she needed placement for their loved ones so she decided to move some people around. f. Later on the same day as the inspection, Janet Cooper faxed a copy of her current Massachusetts driver’s license and a lease between her and landlord Samuel Vasquez for the premises at 602 Conrad Court. The lease was for the period 1 December, . 2011 through 30 November, 2012. The date that shows on the lease as the date that Janet Cooper signed it was 29 November, 2011, the same date as the Agency’s two inspections. 4 12. Donna Cooper was provided two written notices of the deficiencies noted during the two i surveys/inspections. One notice was sent to her at the Cooper’s Retirement Home address; the second notice was sent to her at the unlicensed 602 Conrad Court Location, 13. (a) Donna Cooper responded to the notice sent to the licenséd location by voluntarily providing to the Agency later in December, 2011, her handwritten plan of correction on Agency Form 3020 (used to state the deficiencies noted during an. inspection and to record the provider’s plan of correction), stating that she had notified the families of both residents at the unlicensed facility to come.remove their family members and that «.,. L will not recommend or refer any residents to an unlicensed person.” See Exhibit 2. . (b) Donna Cooper’s unsolicited provider plan of correction as set forth in paragraph 13 ie above shows that 1)-that she, not her sister Janet Cooper, took control of the situation . concerning the two residents that she transferred.to the unlicensed location and 2) she, not Janet, took it upon herself to notify the Agency of what she did to comply with the cease and desist notice that was delivered to thé unlicensed location. 14. The Agency revisited the Altamonte Springs location on both February 1 and 20, 2012, and verified that the unlicensed facility was no longer operating on the date of the second visit. 15. An ALF is defined by Florida law as follows: 429.02 Definitions.—When used in this part, the term: (1) “Activities of daily living” means functions and tasks for self-care, including ambulation, bathing, dressing, eating, grooming, and toileting, and other similar tasks, ; (5) “Assisted living facility” means any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator. with the service plan, taking into account changes in the resident’s status and the ability of the facility to respond accordingly. (16) “Personal services” means direct physical assistance with or supervision of the activities of daily living and the self-administration of medication and other similar services which the department may define by rule. “Personal services” shall not be construed to mean the provision of medical, nursing, dental, or mental health services. : 429.02, Florida Statutes (2011) 16. Based on observation, a review of records and the interviews set forth above, Donna Cooper, knowingly transferred two residents from her licensed Maitland facility to an unlicensed facility with the assistance of her sister, Janet Cooper. 17. Florida law states the following regarding the operation of and the referral of persons for residency to an unlicensed ALF: 429.08 Unlicensed facilities; referral of person for residency to unlicensed facility; penalties — (1)(a) | This section applies to the unlicensed operation of an assisted living facility in addition to the requirements of part II of chapter 408. (b) Except as provided under paragraph (d),:any person who owns, operates, or maintains an unlicensed assisted living facility commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Each day of continued operation is'a separate offense. , (2) It is unlawful to knowingly refer a.person for residency to an unlicensed assisted living facility; to an assisted living facility the license of which is under denial or has been suspended or revoked; or to an assisted living -- facility that has a moratorium pursuant to part II of chapter 408. (b) Any provider as defined in s. 408,803 which knowingly discharges a patient or client to an unlicensed facility is subject to sanction by the agency. 429.08, Florida Statutes (2011) (bold emphasis added) 18. The Agency determined that Respondent knowingly referred for residency one or more persons to an unlicensed ALF. 19. The same constitutes a violation of Section 429.08 (2), Florida Statutes (2011). See paragraph 17 above. , 20. Florida law defines a State “Class II” offense as follows: 408.813 Administrative fines; violations.—-As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. Q) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients. ... Violations shall be classified on the written notice as follows: (b) Class “11” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations, The agency shall 21. 22, impose an administrative fine as provided by law for a cited class II violation. A fine shall be levied | notwithstanding the correction of the violation, 408. 813, Florida Statutes (2011) (bold emphasis added) The fine for a State ‘Class II’ violation is set forth as follows: 429.19 Violations; imposition of administrative fines; grounds.— (1) In addition to the requirements of part II of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the actions of any person subject to level 2 background screening under s, 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. (2) Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the "violation as follows: (b) Class “II” violations are defined in s. 408.813. The agency shall impose ‘ an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5,000 for each violation. (7) In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility's biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation. that was the subject of the complaint or monitoring visits conducted under s, 429,28(3)(c) to verify the correction of the violations. , . 429,19, Florida Statutes (2011) (bold emphasis added) The Agency also determined that Respondent’s discharge of one or more residents from her licensed ALF and subsequent referral of one or more residents to an unlicensed ALF was a deficient practice, i. e., a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which directly threatens the physical or emotional health, safety, or security of the clients, other than class I violations. 23. The same constitutes a finable Class II offense as defined in Florida Statute Sections 408.813 (2) (b), 429.08 (2) (b), and 429.19 (2) (b) (2011). $1,000.00 against Respondent, an ALF in the State of Florida, pursuatit to Sections 408.813 (2) WHEREFORE, the Agency intends to impose an administrative fine in the amount of (b), 429.08 (2) (b), and 429.19 (2) (b), Florida Statutes (2011). 24, "COUNT I~ REVOCATION OF ALF LICENSE The Agency re-alleges and incorporates paragraphs | through 5 and Count I above as if fully set forth herein. 25., The Florida legislature has decreed that the licensure of an ALF is a privilege, not an entitlement, as set forth below: 26, 429.01 Short titles purpose. — (1) This act may be cited as the “Assisted Living Facilities Act.” (2) The purpose of this act is to promote the availability of appropriate services for elderly persons and adults with disabilities in the least restrictive and most homelike environment, to encourage the development of facilities that promote ° the dignity, individuality, privacy, and decision making ability of such persons, to provide for the health, safety, and welfare of residents of assisted living facilities in the state, to promote continued improvement of such facilities, to encourage the development of innovative and affordable facilities particularly for persons with low to moderate incomes, to ensure that all agencies of the state cooperate in the protection of such residents, and to ensure that needed economic, social, mental health, health, and leisure services are made available to residents of such facilities through the efforts of the Agency for Health Care Administration, the Department of Elderly Affairs, the Department of Children and Family Services, the Depattment of Health, assisted living facilities, and other community agencies. . (3) 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. Section 429.01, Florida Statutes (2011) The law as regards ‘unlicensed activity’ is stated as follows: (1) | A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A license holder may not advertise or hold out to the public that he or she holds a license for — - other than that.for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the ; performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation. of this part and authorizing statutes, until ' compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) Itis unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules, Each day of continued operation is a separate offense, (4) Any person or entity that fails to cease operation after agency notification . nay be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists ‘that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules, (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency. Section 408.812, Florida Statutes (2011) (bold emphasis added) 10 27, 28. . (a) Respondent was a licensee with an interest in more than one provider and failed to license a provider rendering services that required licensure, to wit, the facility at 602 Conrad Court, Altamonte Springs. (b) Respondent also offered or advertised services at the 602 Conrad Court location that required licensure, See paragraph 9. d., above and Exhibit 1. Said conduct is in direct violation of Florida Statute 408,812 and warrants the — revocation of Respondent’s ALF license, 29. 30. Florida law regarding the revocation of a license is stated as follows: - 408.815 ‘License or application denial; revocation.— ; (1) In addition to.the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: (b) “An intentional-or negligent act materially affecting the health or safety ofa client of the provider. —- . (c) ‘A violation of this part, authorizing statutes, or applicable rules. Section 408.815, Florida Statutes (2011) _ Respondent intentionally or negligently committed an act that materially affected the health or safety of one or more clients of the provider, i. ., her licensed ALF. She also committed a violation of “...this part, authorizing statutes, or applicable rules”. See paragraph 29 above. 31, Said conduct is in violation of Florida Statute 408.815 (1) (b) & (c) and warrants " tevocation of Respondent's ALF license. 32, Florida law further states the following regarding the penalty of revocation of a license issued specifically to an ALF: 11 33, 34, 429.14 Administrative penalties. (1) In addition to the requirements of part II of chapter 408, the agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in chapter 120 against a licensee for a violation of any provision of this part, part IT of chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under s. 408.809, or for the actions of any facility employee: - (a) An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. (i) Knowingly operating any unlicensed facility or providing without a license any service that must be licensed under this chapter or chapter 400. Section 429.14, Florida Statutes (2011) (emphasis in bold added) (a) Respondent's actions resulted in her having committed an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility, i. e., her licensed ALF. (b) Respondent actions demonstrate that she knowingly operated an unlicensed facility or provided without a license one or more services that were required to be licensed under Chapters 429 or 400, Florida Statutes. Said conduct is in violation of Section 429. 14, Florida Statutes (2011) and warrants revocation of Respondent’s ALF license. WHEREFORE, the Agency intends to revoke Respondent’s ALF license pursuant to Count I and Sections 408.812 (5) & (6), 408.815 (1) (b) & (c), and 429.14 (1) (a) & (j), Florida Statutes (2011). 35. COUNT III - ASSESSMENT OF A SURVEY FEE The Agency re-alleges and incorporates paragraphs 1 through 5 and Counts I and II ' above as if fully set forth herein. 12 36. Pursuant to Section 429,19 (7), Florida Statutes (2011), in addition to any administrative fines imposed, the Agency may assess a survey fee, equal to the lesser of one half of a facility’s ’ biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under. Section 429.28 (3) (c), Florida Statues (2011), to verify the correction of the violations, See paragraph 21 above. 37, . The citation of one or more Class If deficient practices based on the 29 November, 2011, survey of Cooper’s Retirement Home (CCR # 2011012474) was the subject of a complaint. 38, Respondent is therefore subject to a survey fee of five hundred dollars ($500.00), pursuant to Section 429.19 (7), Florida Statutes (2011). WHEREFORE, the Agency intends to impose a survey fee of five hundred.dollars ($500.00) against Respondent, an ALF in the State of Florida,.pursuant to Section 429.19 (7), Florida Statutes (2011). | Enclosures: 2 Exhibits (1) Image of Donna & Janet Cooper’s affiliation with “Altamonte Adult Family Care” at 602 Conrad Court, Altamonte Springs (2) Plan of correction summited by Donna Cooper Respectfully submitted this /O day of July, 2012. - STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION The Sebsing Building 525 Mirror Lake Dr. N., Suite 330H St. Petersburg, FL 33701 a ae 552-1942 ) 552-1449 By 8 Edwin D. Selby, Esq. Fla. Bar No. 262587 13 NOTICE OF RIGHTS The Respondent is notified that it/he/she has the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If the Respondent wants to hire an attorney, it/he/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. . . The Election of Rights form’shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727: Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL_ 32308; Telephone (850) 412-3630. RESPONDENT IS FURTHER NOTIFIED IFTHE ELECTION OF RIGHTS FORM IS NOT RECEIVED BY THE AGENCY FOR HEALTH CARE ADMINISTRATION WITHIN TWENTY-ONE 21 DAYS OF RECEIPT OF THIS ADMINISTRATIVE COMPLAINT, A ‘FINAL ORDER WILL BE ENTERED, CERTIBICATE OF 1 HEREBY CERTIFY that a true and correct copy of the foregoing has been served by US. Certified Mail, Return Receipt No. 7010 0780 0001 9836 2848 on July f° 2012, to Donna L Cooper, Administrator, 602 Conrad St., Deland, FL 32720, and by U.S: regular mail to her at 1680 Maitland Ave, Maitland, FL 32751. Edwin D, Selby Copy furnished to: Theresa DeCanio, Field Office Manager, Area 7, AHCA ‘14

Docket for Case No: 12-002633

Orders for Case No: 12-002633