Sep 10 2009 14:55 aa/le/2aed ld:4g 8589218158 PAGE 15/28 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, Vs. Fraes No. 2009008832 MARY ALEXANDER, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (hereinafter “the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, Mary Alexander (hereinafter “the Respondent”), pursuant to sections 120,569 and 120.57, Florida Statutes (2008), and alleges: NATURE OF THE ACTION This is an action to impose an administrative fine in the amount of seventeen thousand dollars ($17,000.00) against the Respondent based upon her operation of an unlicensed assisted living facility pursuant to section 408.812(4)-(5) and 429,08(1)(a), Florida Statutes (2008), and revoke the Respondent’s adult family care home license pursuant to section 408.812(5), Florida Statutes (2008). JURISDICTION AND VENUE 1. The Court has jurisdiction over the subject matter pursuant to sections 120.569 and 120.57, Florida Statutes (2008). 2. The Agency has jurisdiction over the Respondent pursuant to sections 20.42, 120.60, and Chapters 408 Part IL, and 429 Part I, Florida Statutes (2008). Sep 10 2009 14:55 aa/le/2aed ld:4g 8589218158 PAGE 16/28 3. Venue lies pursuant to Florida Administrative Code Rule 28-106,207. PARTIES 4. The Agency is the regulatory authority responsible for the licensure of assisted living facilities and the enforcement of all applicable state statutes and rules governing assisted living facilities pursuant to Chapters 408, Part IT, and 429, Part J, Florida Statutes (2008), and Chapter 584-5, Florida Administrative Code (2008). “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 under-takes through its ownership or management to provide housing, meals, and onc or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator. § 429.02(5), Fla. Stat. (2008). These residential facilities are intended to be a less costly alternative to the more restrictive, institutional settings for individuals who meet the minimum criteria in order to be admitted to such a facility and do not require 24-hour nursing supervision. Assisted living facilities are regulated in a manner so as to encourage dignity, individuality, and choice for residents, while providing them a reasonable assurance for their health, safety and welfare. Generally, these facilities, through its staff, provide resident supervision, the assistance with personal care and supportive services, as well as the assistance with, or the administration of, medications to residents who require such services. 5. The Respondent was not issued a license to operate an assisted living facility by the Agency and had no authority to operate an assisted living facility in Florida. Nonetheless, the Respondent was at all times material operating an unlicensed assisted living facility located at 16344 §.W. 48" Circle, Ocala, Florida 34470, the same being subject to licensure under Chapter 408, Part U, and Chapter 429, Part I, Florida Statutes (2008). Sep 10 2009 14:55 aa/le/2aed ld:4g 8589218158 PAGE 17/28 6. | The Agency is the licensure and regulatory authority that oversees adult family care homes in Florida and enforces the applicablc. statutes and rules governing such facilities, Chs. AO8, Part I, and 429, Part II, Fla. Stat. (2008), and Ch. 584-14, Fla. Admin. Code. The Agency may deny, suspend or revoke the license of, and in addition, impose an administrative fine on, an adult family care home for violations as provided for by law. §§ 408.813, 408.815, 429.69, 429.71, Fla. Stat. (2008), The Legislature has found and declared that licensure under this part is a public trust and a privilege, and not an entitlement. This principle must guide the finder of fact or trier of law at any administrative proceeding or circuit court action initiated by the department to enforce this part. § 429.63(4), Fla. Stat. (2008). 7. The Respondent was issued a license by the Agency (License No. 6906177) to operate a 5-bed adult family care home located at 17180 $.W. 39" Cizcle, Ocala, Florida 34473, and was at all times material required to comply with the applicable statutes and rules governing such facilities. An "adult family-care home" means “a full-time, family-type living arrangement, in a private home, under which a person who owns or rents the home provides room, board, and personal care, on a 24-hour basis, for no more than five disabled adults or frail elders who are not relatives.” § 429.65(2), Fla. Stat. (2008). “Adult fumily-care homes provide housing and personal care for disabled adults and frail elders who choose to live with an individual ot family in a private home. The adult family-care home provider must live in the home. The purpose of this part is to provide for the health, safety, and welfare of residents of adult family-care homes in the state.” § 429.63(2), Fla. Stat. (2008). COUNT I The Respondent Operated an Unlicensed Assisted Living Facility in Violation of F.S. 408.812 and 429.08 8. The Agency re-alleges and incorporates by reference paragraphs 1 through 7. Sep 10 2009 14:55 aa/le/2aed ld:4g 8589218158 PAGE 18/28 9, Under Florida law, it is unlawful to own, operate or maintain an assisted living facility without obtamming a license. § 429.08(1)(a), Fla. Stat. (2008). 10. Under Florida law, 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 section 775.082, section 775.083 or section 775.084, Florida Statutes. Each day of continued operation is a separate offense. § 429.08(1)(b), Fla. Stat. (2008), 11. Under Florida law, any person found guilty of violating paragraph (a) a second or subsequent time commits a felony of the second degree, punishable as provided under section 775.082, section 775.083, or section 775.084, Florida Statutes. Each day of continued operation is a separate offense. § 429.08(1)(c), Fla. Stat. (2008), 12. Under Florida law, 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 Il of Chapter 408, Florida Statutes. § 429.08(2), Fla. Stat. (2008). 13. Under Florida law, an assisted living facility is defined as a building...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. § 429.02(5), Fla. Stat. (2008). A personal service is defined as 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. § 429.02(16), Fla. Stat. (2008). 14. Under Florida law, for the administration of Chapter 429, Part I, facilities to be licensed by the Agency shall include all assisted living facilities as defined in this part, however Sep 10 2009 14:55 aa/le/2aed ld:4g 8589218158 PAGE 19/28 the following are exempt from licensure under this part...Any person who provides housing, meals, and one or more personal services on a 24-hour basis in the person's own home to not more than two adults who do not receive optional state supplementation. The person who provides the housing, meals, and personal services must own or rent the home and reside therein. § 429.04(1)-(2), Fla. Stat. (2008). 15. ° Under Flonda law, 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 licenseholder may not advertise ot 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. § 408.812(1), Fla. Stat. (2008). 16. Under Florida law, 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 attomey 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. § 408.812(2), Fla, Stat. (2008). 17. Under Florida law, it is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. § 408.812(3), Fla. Stat. (2008). 18. On or about March 5, 2009, an unannounced compliance survey was conducted of the Respondent’s assisted living facility at 16344 5.W. 48" Circle, Ocala, Florida 34470. Sep 10 2009 14:55 ao/1a/2689 14:49 8589218158 PAGE 28/28 19. Based upon observation, record review, and interview, the Respondent was found to be operating an unlicensed assisted living facility. 20. - An attempt to survey the Facility was made on March 5, 2009, at approximately 7:00 a.m. 21. ‘The door of the assisted living facility was answered by a fully dressed Resident who was weanng only one shoe. 22. The Resident stated that he or she was ‘alone and could not allow the surveyor into the assisted living facility. 23. An observation of the papers on the inside right-hand side of the entrance revealed emergency telephone numbers, the telephone number for the Ombudsman program, and emergency contact numbers. 24. A review of the emergency contact numbers revealed the Respondent as the second contact person, along with her home and cellular telephone numbers. 25, During an interview with the employees at a licensed day program on March 5, 2009, at approximately 9:50 am., it was revealed that the Respondent usually drops off eight (8) residents every morning from Monday thorough Froiday. [An adult family care home is limited to five (5) total residents. ] 26. The day program employee revealed that she is aware that some of the Residents dropped off at the day program reside with the Respondent at her licensed adult family care home. 27. The employee further stated that some of them stay with the Respondent’s adult child and others reside at a third address. 28. The employee further stated that the Respondent usually transports all of the Sep 10 2009 14:57 aa/le/2aed ld:4g 8589218158 PAGE 21/28 Residents in either a maroon or white van with lettering on the side. 29. During an interview with a representative of another agency on March 5, 2009, at approximately 8:30 a.m., it was revealed that the representative was aware of the assisted living facility being operated as an unlicensed assisted living facility from conversations. that he or she has had with former residents of the assisted living facility. 30. According to the representative, the Respondent informed a family member that she had three facilities and gave this family member an advertisement flyer. © 31. A review of the advertisement flyer revealed it to be for “Samaritan Place Adult Care Home.” 32. The advertisement flyer included a list of services, which also included adult daycare services. 33. A further review of the advertisement flyer revealed the telephone number associated with the Respondent’s adult family care home facility. 34. An observation of the day program’s parking lot on March 5, 2009, at approximately 10:45 a.m., revealed a white van with a sign stating “Samaritan Place,” parking in the day program’s Jot. 35. The Respondent was observed exiting the driver’s side of the van, walking to the rear of the van, and proceeding to assist 8 residents to exit the van. 36. During an interview with the Respondent on March 5, 2009, at approximately 10:50 a.m., it was revealed that 4 of the Residents reside at her licensed adult family care home, 2 of the residents reside with the Respondent’s adult child, and the remaining 2 residents reside at the unlicensed assisted living facility. 37, According to the Respondent, the unlicensed hving facility with 2 residents was Sep 10 2009 14:57 aa/le/2aed ld:4g 8589218158 PAGE 22/28 her house that she was attempting to get licensed as an assisted living facility. 38. The above constitutes the operation of an assisted living facility without licensure as required by law. 39. The Respondent was notified in writing by Petitioner of her unlicensed activity by correspondence hand-delivered and signed for by the Respondent on March 5, 2009, attached hereto and incorporated herein as Exhibit A, and failed to cease said unlicensed activity after notification. [Exhibit A is erroneously dated March 4, 2008, but should reflect the March 3, 2009 survey date. ] 40. The Respondent operated as an unlicensed assisted living facility with notification from at least March 5, 2009, through at least March 22, 2009. Sanctions 41, Under Florida law, 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 tules. Each day of continued operation is a separate offense. § 408.812(3), Fla. Stat. (2008). 42. Under Florida jaw, any person or entity that fails to cease operation after Agency notification may be fined $1,000 for each day of noncompliance. § 408.812(4), Fla, Stat. (2008). 43, Under Florida law, 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 section 408.814, Florida Statutes (2008), 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. Sep 10 2009 14:57 aa/le/2aed ld:4g 8589218158 PAGE 23/28 44. Under Florida law,:in addition to the grounds provided in authonzing 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 controling interest: a violation of this part, authorizing statutes, or applicable rules. § 408 815(1N(0), Fla, Stat. (2008), 43. Under Florida law, as a penalty for any violation of this part, authorizing statutes, or applicable rules, the Agency may impose an administrative fine. Unless the amount or aggregate limitation of the fine is prescribed by authorizing statutes or applicable miles, the agency Inay establish criteria by rule for the amount or aggregate limitation of administrative fines applicable to this part, authorizing statutes, and applicable rules. Each day of violation constitutes a separate violation and is subject to a separate fine. For fines imposed by final order of the Agency and not subject to further appeal, the violator shall pay the fine plus interest at the Tate specified in section 55.03, Florida Statutes, for each day beyond the date set by the Agency for payment of the fine. § 408.813, Fla. Stat. (2008). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine in the amount of seventeen thousand dollars ($17,000.00), against the Respondent for operating an unlicensed assisted living facility activity pursuant to section 408.812(4)-(5) Florida Statutes (2008) and to revoke the Respondent’s adult family care home license pursuant to section 408.812(5), Florida Statutes (2008). CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, . respectfully seeks a final order that: 1. Makes findings of fact and conclusions of law in favor of the Agency. 2. Imposes sanctions against the Respondent as set forth above. Sep 10 2009 14:57 aa/le/2aed ld:4g 8589218158 PAGE 24/28 3. Enters any other relief authorized by law that is just and appropriate. Respectfully submitted on this Vv day of August, 2009. ALY) fon L, Jackson, ant General Counsel ofida Bar No. 590: Thomas M. Hoeler, Chief Facilities Counsel Florida Bar No. 709311 Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Telephone: (850) 414-7326 Facsimile: (850) 921-0158 NOTICE The Respondent has the right to request an administrative hearing to be conducted in accordance with Sections 120.569 and 120.57, Florida Statutes, and to be represented by counsel or other qualified representative. Specific options for the administrative action are set out within the attached Election of Rights form. The Respondent is further notified that if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered. 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, Bldg. 3, MS 3, Tallahassee, Florida 32308; telephone (850) 922-5873. , CERTIFICATE OF SERVICE THEREBY CERTIFY, that a true and correct copy of the foregoing has been served to: Mary Alexander, 17180 8.W. 39" Circle, Ocala, Florida 34473, by United States Certified Mail, Return Receipt No. 7004 2890 0000 5526 4031, and Mary Alexander, 16344 S.W. 48" Circle, ‘Ocala, Florida 34470, by United States Certified Mail, Return Receipt No. 7004 2890 0000 5526 10 Sep 10 2009 14:53 a/1e/28e9 1d:49 85892148158 PAGE 25/28 9456, on this (gh day of August, 2009. i¢ L. Jackson, A { General Counsel ida Bar No. 59055 Thomas M. Hoeler, Chief Facilities Counsel Florida Bar No. 709311 Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Telephone: (850) 414-7326 Facsimile: (850) 921-0158 Copies furnished to: Mary Alexander Anna Lopez 17180 8.W. 39" Circle Facility Evaluator Supervisor Ocala, Florida 34473 Agency for Health Care Administration (U.S. Certified Mail) 14101 N.W. Hwy 441, Ste. 800 Alachua, Florida 32615 (Interoftice Mail) Mary Alexander Jamie L. Jackson 16344 §.W. 48" Circle Assistant General Counsel Ocala, Florida 34470 Office of the General Counsel (US. Certified Mail) Agency for Health Care Adiministration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Sep 10 2009 14:53 ao/1a/2689 14:49 8589218158 PAGE 26/28 FLORICA AGENCY FOR HEALTH CARE ADMINISTRATION Batter Health Care for all Floridians HOLLY BENSON SECRETARY CHARLIE GRIST GOVERNOR HAND DELIVERED BY RECEIVED BY 7 a > Waup Ulineraaber (SIGNED) (SIGNED) Anuk coher? yates Mhesaud ce (PRINT NAME) e E) NOTIFICATION Date: ahhh r Dear Mr./Ms.: Aé €X4n DER You are hereby notified that the Agency for Health Care Administration considers you to be operating as an Assisted Living Facility (ALF) without being licensed. Based on Section 408.812(3), Florida Statutes (Fla. Stat.), it is unlawful to own, operate, or maintain an assisted living facility without obtaining a license under Chapter 429, Part I, F.S. Section 429.02(6), Fla. Stat., defines an ALF as “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.” The statute provides an exemption from licensure for not more than 2 adults who do not receive optional state supplementation (OSS) when the person who provides the housing, meals and personal services owns or rents the home and resides therein. This exception can be found in Section 429.04(2)(d), Fla. Stat. Based on evidence of unlicensed activity, the Agency intends to proceed with all available legal action, including bringing injunctive proceedings against you in a court of competent jurisdiction, to insure that you immediately cease and desist from offering these services. Further, Section 429.19(7), Fla. Stat., provides that “any unlicensed facility that continues to operate after agency notification is subject to a $1,000 fine per day”. ” If you believe you are not operating as an ALF in violation of law as described, you may submit in writing any information which would demonstrate that to the Agency within 24 hours of receipt of this notice. Any information you wish to have considered by the Agency must be 2727 Mahan Drive, MS# Tallahassee, Florida 32308 14107 NW Hwy. 444 Alachu EXHIBIT Sep 10 2009 14:53 aa/le/2aed ld:4g 8589218158 PAGE 27/28 actually received within 24 hours of your receipt of this Notice of Violation by Kriste J Mennella, FIELD OFFICE MANAGER, FAX # 386-514-5300, AND 14101 NW Highway 441, . Suite 800, Alachua, Florida 32615 at the Agency for Health Care Administration. If you have any questions, please contact Ms, __ Anna Lopez, HFES may be reached at 386-418-5314 or by e-mail at lopeza(@ahca. myflorida.com. Sincerely, Camm Zohn, Mees Kriste J. Mennella Field Office Manager KJMial cc; Alberta Granger, Assisted Living Unit Manager Regional Attorney Sep 10 2009 14:53 PAGE 28/28 8589218158 aa/le/2aed ld:4g “HS L-tezO-eERzOt idiadey WumeY a)SaLIEg Pog lenges ‘| Log ued Sd ome fhege) eqjues uneup ayesweyy] Set TEQh 4255 OO00 obge hob. 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Docket for Case No: 09-004938