Sep 15 2009 10:45 ga/15/28e89 1a:41 8589218158 PAGE @7/ld STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS. Case No. 2009003763 GWEN MCCLAIN, d/b/a GWEN ALF, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter Agency), by and through the undersigned counsel and files this Administrative Complaint against GWEN MCCLAIN, d/b/a GWEN ALF (hereinafter Respondent), pursuant to Section 120.569, 120.57, and 408.812, Florida Statutes (2007), and alleges: NATURE OF THE ACTION This is an action to impose an administrative fine in the amount of SEVENTY ONE THOUSAND DOLLARS (871,000.00) against the Respondent, an unlicensed assisted living facility pursuant to § 429.08 and 408.812, Florida Statutes (2008), based upon the facilities continued operation without a license, JURISDICTION AND VENUE 1 The Agency has jurisdiction pursuant to Section 120.369, and 120.60, Florida Statutes (2008), Chapter 429 Part I, Florida Statutes (2008), Sections 408.812, and 408.813, Florida Statutes (2008) and Rule 58A-5, Florida Administrative Code. 2. Venue hes pursuant to Rule 28-106.207, Florida Administrative Code. Sep 15 2009 10:45 ga/15/28e89 1a:41 8589218158 PAGE 8/14 PARTIES 3. The Agency is the regulatory authority responsible for licensure of assisted living facilitics and cnforccment of all applicable federal regulations, state statutes and rules governing assisted living facilities pursuant to the Chapter 429, Part I, Florida Statutes (2008), and Chapter 58A-5 Florida Administrative Code. 4. Respondent is operating an assisted living facility located at 5215 SW 64" Drive, Jasper, Florida 32502, and was never licensed as an assisted living facility. 5. Respondent was at all times between November 21, 2008, and February 2, 2009, operating as an assisted living facility and was required to comply with all applicable miles, and statutes. COUNTI RESPONDENT CONTINUED OPERATION AS AN UNLICENSED ASSISTED LIVING FACILITY AFTER BEING REQUESTED TO CEASE AND DESIST 6. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein, 7. That pursuant to 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 rules. Section 408.512(3), Florida Statutes (2008). 8. That pursuant to Florida law, any person or entity that fails to cease operation after agency notification may be fined one thousand dollars ($1,000.00) for each day of noncompliance. Section 408.812(4), Florida Statutes (2008). Sep 15 2009 10:45 9/15/2689 16:41 8589218158 PAGE 89/14 9. That pursuant to Florida law, an "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 relatrves of the owner or administrator. Section 429.02(5), Florida Statutes (2007). 10. ‘That the Agency conducted a review of an Attorney General report on November 21, 2008, that report revealed the following: a. That on November 19, 2008, the Attorney General’s Medicaid Fraud Control Office observed two mobile homes in front of a building where the owner/provider resided. b. That four (4) residents were observed entering a white van at the home. c. That the residents were interviewed and they stated that they have resided at the home for the past eight to ten years, d. That further interview with the residents revealed that they eat all their meals at the home. e. That investigators at the facility also witnessed the provider admunister medications while at the home. f. That the owner/provider admitted that she had no formal education on the professional administration of medications when question by the investigator. g. That one of the residents at the location depends heavily on the owner/provider to administer the medications because he/she is blind. h. That the owner/provider admitted to providing medications, meals, shopping, and taking residents to their respective doctor’s appointments. The owner/provider Sep 15 2009 10:47 ga/15/28e89 1a:41 8589218158 PAGE 1@/1d4 concluded by stating that she recetved payment by the residents Social Security and Supplemental Security Income checks for meeting the residents’ needs. ll. That the Agency notified the Respondent by certified mail on November 24, 2008, that the facility must cease operation as an assisted living facility. 12. That the Agency received confirmation that the “Cease and Desist” letter was received on November 25, 2008 (Certified Receipt No, 7007 3020 0000 2288 6184). 13. That on February 2, 2009, the Agency performed a compliance inspection to ensure compliance with applicable laws and rules. 14. Upon arrival at the facility the surveyor spoke with resident number 1, who explained that there are currently three people residing with the owner/provider at the facility. Resident number 1 invited the surveyor inside, where resident number 3 was inside sitting down. The surveyor noted that all residents were wearing, what appeared to be dirty clothing. Access to the refrigerator was restricted to the residents due to the refrigerator being pad locked, No phone was seen at the horne, which was consistent with the statements of resident 1, who informed that the phone was locked up. 15. Prior to leaving the residence, the surveyor spoke to all three residents in one setting and learned that two residents reside upstairs, while the other sleeps im the ving room. 16. That the above reflects that the Respondent is engaged in the operation of an assisted living facility, and therefore constitutes harm that materially affects the health, safety, and welfare of clients. Section 408. &12(2), Florida Statutes. 17. That the Respondent does not have any expectations to becoming licensed in accordance with state law. | 18. That the operation of Respondent as an assisted living facility without a valid license is in violation of law and subjects Respondent to admimustrative fines. Section 408.812(4); Sep 15 2009 10:47 ga/15/28e89 1a:41 8589218158 PAGE 11/14 Florida Statutes. 19. That the Agency intends to impose an administrative fine in the amount of SEVENTY ONE THOUSAND DOLLARS ($71,000.00) against Respondent pursuant to Section 408.812(4) and 408.813, Florida Statutes (2008). WHEREFORE, the Agency requests the following relief: 1. Enter factual and legal findings as set forth im the allegations on all counts. 2. Impose an administrative fine in the amount of SEVENTY ONE THOUSAND DOLLARS ($71,000.00), 3. Grant such other relief as the court deems is just and proper. Respectfully submitted this l Hy, of July, 2009, hi bl) Shaddrick A. HaSton, Senior Attomey Florida Bar 1.D. No.: 31067 Agency for Health Care Administration 2727 Mahan Dr., MS #3 Tallahassee, Florida 32308 Phone: (850) 487-9845 Fax: (850) 413-9313 Respondent is notified that it has.a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the right to retain, and be represented by an - attorney in this matter. Specific options for administrative action are set out im the attached Election of Rights. Sep 15 2009 10:47 9/15/2689 16:41 8589218158 PAGE 12/14 Ali requests for hearing shall be made to the attention of: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Florida, 32308, (850) 922-5873. RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. VICE I HEREBY CERTIFY that a true and correct copy of the foregoimg has been served by. U.S. Certified Mail, Return Receipt Requested on July 7 ° 2009, to Gwen McClain, 5215. SW 64” Drive, Jasper, Florida 32502. Stull Mls. - Shaddrick A. Haston; Faq. Gwen McClain Shaddrick A. Haston, Senior Attorney 5215 SW 64" Drive Agency for Health Care Administration Jasper, Florida 32502 Office of the General Counsel. : : 2727 Mahan Drive, MS #3 (US. Certified Mail ‘Tallahassee, Florida 32308 Barbara Alford (interoffice) Field Office Manager Agency for Health Care Admimistration 2727 Mahan Dr. MS # Tallahassee, Florida 32308 (nteroffice) 8589218158 ga/15/28e89 1a:41 Sep 15 2009 10:47 PAGE 13/14 sek an ie Cia eee ea sts Cartiiect Fa Retuin Hecelot Fas (Endorsen: cont leg sirad) Restricted Delivery Fae (Errdomemannt Franisirad) Total Pomtage & Fees ne oe uy Ag Nol Yagi wiht Bandas! 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Alsc compiste item 4 if Restricted Delivery bs-desirad. m Print your name and address on the reverse so that we can return the card to you. ® Attach thia card to the back of the mallpiece, or on the front If space permits. 1. Avficie Addressed to! Gwee Met loda an FAs Sw lh De, Jasper FLoricho. 20 SCR Ta senges tee 3 ‘Certified biel C1 Express Mall Ci registeed 0] Retum Recelpt for Merchandise D insured Mat 1 6.0.. B, 1s delivery adidress different from item 17 _ AG Yes }€VES, enter delivery address below, “01 No Seis sw b¢ DR. 4. Restricted Detieny? (Exte Fea) CO Yes 2 ae’ “Number “>IT. 397 NoAn © a (ar trem service labo 7008 1300 ogee bL?4 1Lb4 1 PS Form 3811, February 2004 Domestic Return Recelpt. {Q2SBS-02- Ne BaO

Docket for Case No: 09-005005