STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

LOVING CARE RETIREMENT SERVICES, INC.,

Respondent.

/

Case No. 13-3365

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on February 12, 2014, by video teleconference between sites in Miami and Tallahassee, Florida, before Administrative Law Judge (ALJ) Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Nelson E. Rodney, Esquire

Agency for Health Care Administration Suite 300

8333 Northwest 53rd Street Miami, Florida 33166

For Respondent: Adrian Goett, pro se

Loving Care Retirement Services, Inc.

380 Northwest South River Drive Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether the Respondent, a licensed assisted living facility (ALF), committed the violations alleged in the Administrative Complaint, and, if so, the penalties Petitioner should impose against Respondent.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 6, 2013, the Agency for Health Care Administration (Petitioner) alleged certain facts. Based on those facts, Petitioner charged Loving Care Retirement Services, Inc. (Loving Care) with failing to appropriately discharge five residents to a licensed provider in violation of section 408.812, Florida Statutes (2012).

Petitioner alleged that the violation constituted a class II violation and that an administrative fine in the amount of $5,000 should be imposed.

Respondent timely filed with Petitioner a Petition for Formal Administrative Hearing on August 28, 2013. On September 9, 2013, Petitioner forwarded the matter to DOAH, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of two of its employees: Michael Forrester and Luis Rosario, both of whom participated in surveys of Loving Care. Petitioner offered ten exhibits, each of which was admitted into evidence

without objection.

Respondent presented the testimony of Adrian Goett and offered pre-numbered Exhibits two through six, each of which was admitted into evidence without objection.

A Transcript of the hearing, consisting of one volume, was filed with DOAH on March 5, 2014. The parties timely filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Statutes (2012).

FINDINGS OF FACT

1. Petitioner is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing ALFs in Florida.

2. Loving Care is licensed by Petitioner as a 16-bed ALF at 380 Northwest South River Drive, Miami, Florida.

3. Adrian Goett is the principal owner and authorized representative of Loving Care.

4. Adjacent to Loving Care is an independent living facility owned by Mr. Goett and referred to at the formal hearing as 3320 Northwest Seventh Avenue, Miami, Florida (the adjacent facility). The adjacent facility is not licensed as an ALF.

5. A survey of Loving Care in May of 2012 revealed that the facility had 28 residents, which exceeded its licensed capacity by 12 residents.

6. In June and July 2012, four former Loving Care residents moved

   
   

   from that facility to the adjacent facility. A fifth resident moved from Loving Care to an unknown address.

7. Resident 1 was admitted to Loving Care on November 22, 2010, and was discharged from Loving Care on June 4, 2012. Resident 1 moved from Loving Care to the adjacent facility.

8. Resident 2 was admitted to Loving Care on August 18, 2002, and was discharged from Loving Care on June 4, 2012. Resident 2 moved from Loving Care to the adjacent facility.

9. Resident 3 was admitted to Loving Care on July 2, 2010, and was discharged from Loving Care on July 13, 2012. Resident 3 moved from Loving Care to the adjacent facility.

10. Resident 4 was admitted to Loving Care on June 21, 2011, and was discharged from Loving Care on June 4, 2012. Resident 4 moved from Loving Care to the adjacent facility.

11. A Form 1823 (Form 1823) is a health assessment form approved by Petitioner that is completed for each resident of an ALF upon admission and every three years thereafter. The form is also completed if the resident experiences a change of condition.

12. A Form 1823 was completed for Resident 1 on October 25, 2011. That assessment reflected that Resident 1

    needed supervision for bathing, dressing, eating, and self-care. The assessment reflected that Resident 1 needed assistance preparing meals, shopping, making telephone calls, handling

    personal affairs, and taking medication. Resident 1 needed daily

    
    

    oversight in the categories "observing wellbeing," "observing whereabouts," and "reminders for important tasks."

13. A Form 1823 was completed for Resident 2 on June 16, 2011. That assessment reflected that Resident 2 needed supervision and daily reminders for self-care grooming. Resident

    2 required supervision with preparing meals, and handling personal and financial affairs. Resident 2 also needed assistance with self-administration of medication.

14. Resident 3 had no records at Loving Care on October 1, 2012, the date of a survey. No records were produced at the formal hearing for Residents 4 and 5.

15. There was no evidence that the respective needs of Resident 1 or 2 changed from the dates of their assessments to the dates of their discharge from Loving Care.

16. After the four former residents of Loving Care moved to the adjacent facility, Loving Care provided those residents cleaning services and food. The adjacent facility charged the former residents rent. There was no evidence that Loving Care or the adjacent facility provided supervision or assistance with the residents’ activities of daily living. There was no evidence as to how those needs were being met.

17. During the survey on October 1, 2012, the surveyors found two locked medication carts in the adjacent facility. The

    Administrator of Loving Care was summoned to the area and

    
    

    produced a key that unlocked the medication carts. Inside the carts were prescription medicines for Residents 1, 2, and 4.

    There was no evidence regarding how the medications came to be in the locked medication carts. There was no evidence as to who had keys to the cart, other than Loving Care’s administrator.

18. These medicines were packaged using bingo cards, which is the way medications are typically administered to institutional residents. A bingo card is a sheet, with each dose of medication sealed in a blister package that is punched out when the dose is administered.

19. Mr. Goett testified that all five of the residents cited in the Administrative Complaint lived independently after they were discharged from Loving Care. Mr. Goett denied that the adjacent facility provided any assistance with activities of daily living or any other services to its residents that would require the adjacent facility to become licensed as an ALF.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).

21. Petitioner has the burden of proving by clear and convincing evidence that Respondent committed the violations as

    
    

    alleged and the appropriateness of any fine and penalty resulting from the alleged violations. See Ferris v. Turlington, 510 So.

    2d 292 (Fla. 1987); Evans Packing Co. v. Dep't of Agric. &

    
    

    Consumer Servs., 550 So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994).

22. In Slomowitz v. Walker., 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court held that:

    Clear and convincing evidence requires that the evidence must be found to be credible: the facts to which the witnesses testify must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

23. The Administrative Complaint consists of one count.

    
    

    Count I alleges that Respondent inappropriately discharged five residents to an unlicensed provider. Count I cites section 408.812 as its authority.

24. Section 408.812, entitled "unlicensed activity," provides 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. It is 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 may 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.

       
       

25. The gist of Petitioner’s case against Loving Care is Petitioner’s contention that four of its former residents were discharged to the adjacent facility, which Petitioner contends acted as an unlicensed ALF.

26. Section 429.08(2) provides, in relevant part, as

    
    

    follows:

    
    

    (2) It is unlawful to knowingly refer a person for residency to an unlicensed assisted living facility; . . .

    
    

    (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.

    
    

27. An ALF is a provider within the meaning of section 429.08(2)(b). Section 408.803(11) defines "provider" to mean "any activity, service, agency, or facility regulated by the agency and listed in s. 408.802." An ALF is on that list at section 408.802(13).

    
    

28. Section 429.02(5) defines ALF facility to mean:

    
    

    (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.

    
    

29. There is no dispute that the residents of the adjacent facility were provided housing, meals, and cleaning services. Petitioner contends that the residents were also provided personal services in the form of assistance or supervision of the self-administration of medications.

30. Section 429.256(3) contains the following definition of the phrase "assistance with self-administration of medication:"

    1. Assistance with self-administration of medication includes:

       
       

       1. Taking the medication, in its previously dispensed, properly labeled container, from where it is stored, and bringing it to the resident.

          
          

       2. In the presence of the resident, reading the label, opening the container, removing a prescribed amount of medication from the container, and closing the container.

          
          

       3. Placing an oral dosage in the resident’s hand or placing the dosage in another container and helping the resident by lifting the container to his or her mouth.

          
          

       4. Applying topical medications.

          
          

       5. Returning the medication container to proper storage.

          
          

       6. Keeping a record of when a resident receives assistance with self-administration under this section.

    
    

31. The evidence established that prescription medications for three residents were found in the medication cart when the adjacent facility was surveyed on October 1, 2012, and that the Loving Care administrator had a key to the medication carts. There was no competent evidence how the medications got to be in the cart. There was no evidence whether anyone else, including the residents or their relatives, had keys to one or both carts. There was no evidence that anyone assisted the three residents when they took their medicine.

32. In the absence of proof that the adjacent facility was providing personal services to the residents, such as assistance with activities of daily living or the supervision of administration of medicines, it is concluded that Petitioner failed to prove that the adjacent facility acted as an unlicensed ALF. Consequently, it is concluded that the Administrative Complaint should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care

Administration enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 4th day of April, 2014, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2014.

COPIES FURNISHED:

Adrian Goett

Loving Care Retirement Services, Inc.

380 Northwest South River Drive Miami, Florida 33128

Nelson E. Rodney, Esquire

Agency for Health Care Administration Suite 300

8333 Northwest 53rd Street Miami, Florida 33166

Richard J. Shoop, Agency Clerk Agency for Health Care Administration Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration Mail Stop 1

2727 Mahan Drive

Tallahassee, Florida 32308

Stuart Williams, General Counsel Agency for Health Care Administration Mail Stop 3

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: 13-003365

Orders for Case No: 13-003365