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STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION
STATE OF FLORIDA, AGENCY
FOR HEALTH CARE ADMINISTRATION,
Petitioner, Case No. 2011005276
vs.
HEATHER HOWELL,
Respondent.
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ADMINISTRATIVE COMPLAINT
COMES NOW the Agency for ·Health Care Administration (the "Agency") and files this Administrative Complaint against
·Heather Bowel1, an individua1 ("Respondent"), pursuant to § §
120.569, and 120.57, Fla. Stat., and alleges:
NATURE OF THE ACTION
This is an action to impose an administrative fine in the amount of twelve thousand dollars {$12,000.00), or such other relief as this tribunal may determine, based upon the
I Respondent's failing to obtain license prior to operating an
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Assiste Living Facility or an Adult Family-Care Home, pursuant to Chapter 408, Part II, and Chapter 429, Parts I and II, Fla. Stat., and Chapters 58A-5 and SBA-14, Fla. Admin. Code.
JURISDICTION AND VENUE
The Agency has jurisdiction pursuant to Sections
20.42, 120.60; and Chapters 408, Part II, and 429, Florida
Page 1 of 9
Filed July 7, 2011 1:57 PM Division of Administrative Hearings
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Statutes.
Venue lies pursuant to Fla. Admin. Code R. 28-106.207.
PARTIES
The Agency is the regulatory authority responsible for licensing assisted living facilities and adult family-care homes and for enforcing all applicable state statutes and rules governing assisted living facilities and adult family-care homes, pursuant to Chapter 408, Part II, and Chapter 429, Parts I and II, Florida Statutes, and Chapter 58A-5 and 58A-14, Florida Administrative Code.
At all times material to the allegations of this administrative complaint, Respondent did not hold any licenses
from the Agency.
COUNT I A003
The Agency re-alleges and incorporates paragraphs one
(1) through four (4), as if fully set forth in this count.
Under § 408.812, Fla. Stat.:
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. . . .
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
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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,
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.
Any person or entity that fails to cease operation after agency notification may be fined
$1,000 for each day of noncompliance.
Under section 429.08, Florida Statutes:
(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.
Except as provided under paragraph (d), any person who owns, operates, or maintains an unlicensed
assisted 1 iving-fa.s-i-l-i-t-y-G0mmi-t-s-a-fs-lmry-Gf-tJ1e--t.h-i-L'd
degree, punishable as provided ins. 775.082, s. 775.083, ors. 775.084. Each day of continued operation is a separate offense.
Any person found guilty of violating paragraph
(a) a second or subsequent time commits a felony of the second degree, punishable as provided under s. 775.082, s. 775.083, ors. 775.084. Each day of continued operation is a separate offense.
Section 429.02, Florida Statutes, defines:
"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
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more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.
(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.
(18) "Relative" means an individual who is the father, mother, stepfather, stepmother, son, daughter, brother, sister, grandmother, grandfather, great grandmother, great-grandfather, grandson, grand.daughter, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister in-law, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister of an owner or administrator.
· 9. Section 429.67, Fla. Stat., provides:
429.67 Licensure.
The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to this part and part II of chapter 408 and to entities licensed by or applying for such licensure from the Agency for Health Care Administration pursuant to this part. A license issued by the agency is required in order to operate an adult family-care home in this state.
A person who intends to be an adult family-care home provider must own or rent the adult family-care home that is to be licensed and reside therein.
Section 429.65, Fla. Stat., provides:
"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. The following family-
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type living arrangements are not required to be licensed as an adult family-care home:
An arrangement whereby the person who owns or rents the home provides room, board, and personal services for not more than two adults who do not receive optional state supplementation under s.
409.212. The person who provides the housing, meals, and personal.care must own or rent the home and reside therein.
An arrangement whereby the person who owns or rents the home provides room, board, and personal services only to his or her relatives.
Operating as an unlicensed facility may pose risks to
· the health, safety and well being of residents due to having caregivers or other members of the household who have not met minimum training or background screening standards, or due to having :(:acilities that do not meet applicable sanitary, fire or building and equipment standards.
The Agency conducted a complaint survey at 3508 Rolling Trail, Palm Harbor, Florida 34684, on April 21, 2011.
Based on the Agency's surveyor's observations and interviews, the Respondent was found to be operating as an unlicensed Assisted Living Facility ("ALF") or as an unlicensed Adult Family-Care Home ("AFCH").
The Agency surveyor's observations of operation by Respondent of a single family home located at 3508 Rolling Trail, Palm H.arbor, Florida 34684 ("Respondent's Facility") on April 21, 2011, found indicators that three or more residents lived in the facility and were receiving personal services.
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Property records of Pinellas County, Florida, reveal that Respondent's Facility is not owned by Respondent.
On April 21, 2011, the Agency's surveyor . identified six (6) individuals who were not related to Respondent who appeared to live at the Respondent's Facility.
When interviewed by the Agency's surveyor on April 21, 2011, between 9:40 a.m. and 10:20 a.m., five (5) residents at the Respondent's Facility told the Agency's surveyor that they all received medication assistance from one of Respondent's
staff members at Respondent's Facility.
The Agency's surveyor observed that medicaticiniii for
the five residents were centrally stored in a medicine cabinet.
Additionally, one (1) individual residing at the Respondent's Facility stated that he/she received assistance with at least two (2) other ac:tivities of daily living, in addition to medication administration.
Also on April 21, 2011, a second resident explained to the Agency's surveyor that he/she "occasionally required help from staff with transfers/ambulation if he/she was having a bad day."
During an interview with the Respondent at approximately 10:30 a.m. on 4/21/11, Respondent admitted to the
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Agency's surveyor that Respondent did not live at the 3508 Rolling Trail, Palm Harbor, Florida, address.
On the basis of the observed conduct by Respondent and at Respondent's Facility, the Agency determined that Respondent was engaged in conduct requiring a license from the Agency, and the Agency's surveyor served Respondent with a letter so advising Respondent, a true and correct copy of which letter is attached to this administrative complaint as Exhibit A.
On May 2, 2011, the Agency conducted a second complaint investigation of Respondent's Facility.
During the investigation, the Agency's surveyor learned that three of the individuals who had been residents of Respondent's Facility on April 21, 2011, had been moved to an assisted living facility - Residents #1, #3 and #6 - and that three residents remained - Residents #2, #4 and #5.
A court appointed plenary guardian had been named for each of Residents #1, #3 and #6, during or prior to their residence at Respondent's Facility.
At the time of their residence at Respondent's Facility, the three residents for whom a plenary guardian had been appointed - Residents #1, #3 and #6 - were incapable of self-administration of medications and received assistance with medications from Respondent or from an employee of Respondent.
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When interviewed by the Agency's surveyor on May 2, 2011, the Respondent admitted that Resident #1 had resided at the Respondent's Facility from October 14, 2010, until April 27, 2011.
When interviewed by the Agency's surveyor on May 2, 2011, the Respondent admitted that Resident #3 had resided at the Respondent's Facility from May 12, 2010, until April 27, 2011.
When interviewed by the Agency's surveyor on May 2, 2011, the Respondent admitted that Resident #6 had resided at the Respondent's Facility from December 2, 2010, until April 27, 2011.
The Agency determined that the Respondent was operating an unlicensed Assisted Living Facility or an unlicensed Adult Family-Care Home without obtaining a license prior to operating and subsequent to notice from the Agency.
WHEREFORE, the. Agency intends to impose an administrative fine in the amount of $12,000.00 against Respondent, an unlicensed assisted living facility or unlicensed adult family care home operator in the State of Florida, pursuant to Sections 408.813 and 429.19, Florida Statutes.
NOTICE OF RIGHTS
Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida
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Statutes. Respondent has the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights.
All requests for hearing 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 FL 32308, whose telephone number :Ls 850-412-3530.
RESPONDENT IS FURTHER NOTIFI!P THAT THE FAILURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY.
CERTIFICATE OF SERVICE
· I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by U.S. Certified Mail, Return Receipt No.7003 1010 0001 3600 4750, Heather Howell, 3508 Rolling Trail, Palm Harbor, Florida 34684, and by U.S. Certified Mail, Return Receipt No.7011 0470 0000 7951 3869 to Heather Howell, 3969
Wellington Parkway, Palm Harbor, Florida
v-::-:!-:-· 3 I 2Q 11.
34685, on
Copies furnished to: Pat Caufman, FOM
arris
General Counsel Fla. Bar. No. 817775
Agency for Health Care Admin.
525 Mirror Lake Drive, 330D St. Petersburg, Florida 33701 727-552-1944 (office)
727-552-1440 (facsimile)
Kathleen Varga, HFE Supervisor
RICK SCOTT GOVERNOR
Date: 4/20/11
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Better Health Care tor all Floridians ELIZABETH DUDEK
INTERIM SECRETARY
To: Heather Howell
3508 Rolling Trail Facility 3508 Rolling Trail
Palm Harbor, FL 34684
The Agency for Health Care Administration has determined that you and/or this facility are operating an assisted living facility at the above address without the required license. Under Florida law, it is unlawful for any person or entity to: own, operate, or maintain an unlicensed provider; or perform any services that · require Agency licensure without proper licensure; or offer or advertise services that require Agency licensure to the pub1ic without first obtaining a valid license from the Agency. An existing licenseholder 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.
Any person and entity that fails to immediately cease operation of an unlicensed provider is subject to the penalties set forth under Florida law. This includes, but is not limited to1 the imposition of fines of
$1,000.00 for each day of noncompliance and an injunction to restrain such violation or enjoin the future operation or maintenance of the unlicensed provider or the performance of any services requiring licensure. Each day of continued operation is a separate offense.
If you have any questions regarding this Notice of Unlicensed Activity, you may contact me at 727-552-
2000_.
Sincerely,
Patricia Reid Caufman Field Office Manager
cc: AHCA License Unit
AHCA Medicaid Program Integrity
,office of the Attomey General
2727 Mahan Drive
Mail Stop #1
Tallahassee, FL 32308
ahoa.myflorida.com
EXHIBIT
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Area Office 5/6
52 5 Mirror Lake Dr North
Suite 410
St. Petersburg, FL 33701
ELECTION OF RIGHTS
This Election of Rights fonn is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be an Administrative Complaint, Notice of Intent to Impose a Late Fee, or Notice of Intent to Impose a Late Fine.
Your Election of Rights must be returned by mail or by fax within twenty-one (21) days of the date you receive the attached Administrative Complaint. Notice of Intent to Impose a Late Fee, or Notice oflntent to Impose a Late Fine.
If your Election of Rights with your elected Option is not received by AHCA within twenty-one
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(21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency's proposed action and a Final Order will be issued.
Please use this fonn unless you, your attorney or your representative prefer to reply in accordance with Chapter120, Florida Statutes and Rule 28, Florida Administrative Code.
PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS:
Agency for Health Care Administration Attention: Agency Clerk
2727 Mahan Drive, Mail Stop #3
Tallahassee, Florida 32308
Phone: 850-922-5873 Fax: 850.-921-0158
PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS
.Intent to Impose a Late Fine or Fee, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced.
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Your name, address, telephone number, and the name, address, and telephone number of your representative or lawyer, if any.
Thefile number of the proposed action.
A statement of when you received notice of the Agency's proposed action.
A statement of all disputed issues of material fact. If there are none, you must state that there are none.
Mediation under Section 120.573, Florida Statutes may be available in this matter if the Agency agrees.
License Type: (Assisted Living Facility, Nursing Home, Medical Equipment, Other)
Licensee Name: License Number:
Contac.t Person:
Name
------------
Title
Street and Number City State
Address: -------------------------,---Zip,C-od-e -
Telephone No. ----- Fax No E-Mail (optional) _
Ihereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the above licensee.
Signature: _ Print Name:-----------
Date:--------
Title:.
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