STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HOLLY HEIGHTS MANOR, )
)
Petitioner, )
)
vs. ) CASE NO. 94-5193
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on December
20 and 21, 1994, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Roberta Fox, Esquire
Fox and Gold, P.A.
200 South Biscayne Boulevard, 20th Floor Miami, Florida 33131
For Respondent: Fredericka Sands, Esquire
Senior Attorney
Agency for Health Care Administration
401 Northwest Second Avenue, N-526 Miami, Florida 33128
STATEMENT OF THE ISSUE
Whether Petitioner's application for a license to operate Holly Heights Manor as an adult congregate living facility (hereinafter referred to as an "ACLF") should be denied for the reason cited in the Agency for Health Care Administration's August 25, 1994, letter notifying Petitioner of its intention to deny its application?
PRELIMINARY STATEMENT
By letter dated August 25, 1994, the Agency for Health Care Administration (hereinafter referred to as the "Agency") advised Petitioner that a preliminary determination had been made to deny its "change of ownership application for a license to operate" Holly Heights Manor as an ACLF. The letter contained the following explanation for the Agency's proposed action:
Failure to meet minimum licensure standards during the June 6-7 change of ownership survey and follow-up/appraisal visits of July 12 and 18, 1994. Of the
56 deficiencies originally cited, 32 remained uncorrected at the time of the follow-up survey and four additional deficiencies were cited. The facility has
received a copy of that report previously. Failure to meet minimum licensure standards during the change of ownership survey is grounds for denial of the license (s. 400.414(2)(g), F.S.).
The letter also "confirmed" that "a moratorium on admissions to this facility was being imposed effective 08/12/94, to run concurrently with the denial action . . . in accordance with provisions of Section 400.415, F.S." According to the letter, the imposition of the moratorium was the product of "the serious deficiencies identified by personnel of this agency, as cited above."
On or about September 2, 1994, Petitioner filed with the Agency a written request for a formal administrative hearing on the Agency's proposed "denial of [its] change of ownership application for a license to operate the ACLF called Holly Heights Manor." The matter was referred to the Division of Administrative Hearings (hereinafter referred to as the "Division") on September 19, 1994, for the assignment of a Division hearing officer to conduct the formal hearing Petitioner had requested.
At the formal hearing, which was held on December 20 and 21, 1994, six witnesses, all Agency employees, testified on behalf of the Agency: Patricia Feeney, the Agency's Broward County area office supervisor; Maryanne Clancy, a public health nutrition consultant; Joseph Brannon, a human service survey specialist; Ann Fantell, another human service survey specialist; Dominic Grasso, a fire protection specialist; and Elizabeth Thomas, another human service survey specialist. In addition to presenting the testimony of these six witnesses, the Agency offered 11 exhibits (Respondent's Exhibits 1 through 11) into evidence. All of these exhibits were received by the Hearing Officer.
Ten witnesses testified on behalf Petitioner: Gerald Pinnock, the owner of a business that installs and repairs fire alarm and smoke detection systems; Alan Siegel, a clincal pharmacist who serves as a consultant as well as an instructor at Nova Southeastern University; Steven Brandewene, D.P.M., a practicing podiatrist; Ivan LeBron, a part-owner and the director of operations of a pest control business; Linda Schomer, an employee of Home Health Care, a business which provides complete eye care services; Homer Burofsky, the brother of a former Holly Heights Manor resident; Donald Weiss, D.O., a practicing osteopathic physician; Justin Steurer, a registered nurse employed by the Florida Psychiatric Group; Theresa Lee Santangeo, a registered nurse employed by Med Tech Home Health Services; Leon Rosenblatt, who has an ownership interest in Holly Heights Manor; and Cindy Gobin, an administrative assistant at Holly Heights Manor. In addition to presenting the testimony of these ten witnesses, Petitioner offered twenty exhibits (Petitioner's Exhibits 1 through
13 and 15 through 21) into evidence. All of these exhibits were received by the Hearing Officer.
At the close of the evidentiary portion of the hearing on December 21, 1994, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 20 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the hearing transcript on January 9, 1995. On Monday, January 30, 1995, the Agency and Petitioner timely filed proposed recommended orders. These proposed recommended orders have been carefully considered by the Hearing Officer. Each contain, what are labelled as, "findings of fact." These "findings of fact" are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
The Facility
Holly Heights Manor is an ACLF located in Broward County, Florida.
The facility consists of four separate buildings.
Each building contains a number of two-bedroom apartments.
There are a total of 35 bedrooms in the facility.
Each bedroom is large enough to accommodate two residents.
The facility also has a main kitchen and a smaller, satellite kitchen.
The main kitchen is located in the same building as the facility's administrative office.
There is a dining room off the main kitchen, where the residents are served their meals.
The satellite kitchen is located in "C" Building on the north side of the premises.
The Purchase of the Facility and Pre-June 6, 1994, Repairs and Improvements
The current owners (hereinafter referred to as the "Rosenblatts") purchased Holly Heights Manor in November of 1993.
At the time of the purchase, the facility was in deplorable condition.
Shortly thereafter, the Rosenblatts began an effort, which is still ongoing, to make repairs and improvements to the facility.
The Application and the June Survey
As the new owners of Holly Heights Manor, the Rosenblatts submitted an application for a license to continue to operate the facility as an ACLF.
On June 6 and 7, 1994, the Agency conducted a "change of ownership" survey of Holly Heights Manor (hereinafter referred to as the "initial CHOW survey") to ascertain whether there was compliance with "minimum standards."
The Agency employees who conducted the initial CHOW survey were Maryanne Clancy, a public health nutrition consultant, Ann Fantell, a human service survey specialist, and Dominic Grasso, a fire protection specialist.
Fantell was the survey team leader.
Before leaving the premises, she gave the Rosenblatts a form letter addressed to "Mr. Rosenblatt," which read as follows:
The purpose of this letter is to explain the process now that the survey has been completed.
During the exit conference, you or your repre- sentative were advised of the deficiencies and requested to write them down. At this time, we also established a time frame for the correction of each deficiency.
You will receive, in several weeks, a written report from our Office of this survey. THE TIME TO CORRECT, HOWEVER, STARTS FROM TODAY, THE DAY OF THE SURVEY.
An unannounced revisit will be conducted after the dates of correction to determine if the deficiency(ies) have been corrected. It is required that each deficiency be corrected by the date established.
If a deficiency is not corrected within the required time frame, the FACILITY MAY BE ASSESSED AN ADMINISTRATIVE FINE. The purpose of this survey is to evaluate the facility compliance
with ACLF Rules and Regulations. REPEAT DEFICIENCIES FROM ONE VISIT TO THE NEXT MAY RESULT IN THE
ISSUANCE OF ADMINISTRATIVE SANCTIONS SUCH AS FINES, NON-RENEWAL OF THE LICENSE, OR LICENSE REVOCATION,
at the time of the current visit, regardless of any time allowed for corrections.
Additional time may be granted to correct specific deficiencies if a written request is received prior to the original date of correction. This written request must identify the deficiency(ies) by ACLF number, the reason for the extension request, and specific amount of additional time needed. This office will then approve or disapprove the request, in writing, back to the facility.
When the written results of this visit are received, your copy of the report is to be posted in the facility. THE ENCLOSED STATEMENT OF ACKNOWLEDGMENT
OF RECEIPT is to be signed and returned to this office within ten days of receipt.
If you have any questions, please contact this office at (305) 497-3395.
Bruce Rosenthal signed a written acknowledgment, dated June 6, 1994, that he had received and read the letter.
The initial CHOW survey revealed over 50 deficiencies.
As promised in the letter, the Agency subsequently sent the Rosenblatts a written statement of these deficiencies.
Bruce Rosenthal signed a written acknowledgment, dated June 15, 1994, that he had received and posted the statement of deficiencies.
At around the same time that the Rosenthals received the Agency's written statement of deficiencies, they received a letter, dated June 10, 1994, from Patricia Feeney, the Agency's Broward County area office supervisor, advising them that their "application for an initial license to operate [Holly Heights Manor] was approved by the ACLF section in Tallahassee" on May 25, 1994. 1/
In response to the written statement of deficiencies that they received, the Rosenthals submitted a plan of correction to the Agency. In addition, they requested an extension of time to correct the fire safety-related deficiencies cited in the statement. Their request was denied.
The July Survey
On July 12 and 18, 1994, the Agency conducted a follow-up CHOW survey of Holly Heights Manor to determine whether the deficiencies discovered during the initial CHOW survey had been corrected. 2/
Clancy and Grasso, along with Elizabeth Thomas, a human service survey specialist with the Agency, conducted the follow-up CHOW survey. Clancy and Thomas visited the facility on July 12, 1994. Grasso visited the facility on July 18, 1994.
The follow-up survey revealed that, while a number of the deficiencies found during the initial CHOW survey had been corrected, a larger number of these deficiencies still remained (hereinafter referred to as the "uncorrected deficiencies").
Deficiencies that the Agency alleged had not been corrected, as well as what the Agency alleged were new deficiencies uncovered during the follow-up CHOW survey, were described in a written statement of deficiencies the Agency provided the Rosenthals.
The following were the uncorrected deficiencies that existed at the time of the follow-up CHOW survey:
Failing to properly document third party services arranged for by the facility (Tag number A 209); 3/
Failing to document that three patients who had resided at the facility for more than thirty days had been examined by a health care provider (Tag number A 401); 4/
Failing to maintain adequate resident health assessment records (Tag numbers A 403 and A 404);
Having a resident not meeting the criteria for admission and continued residency in an ACLF (Tag numbers A 406 and A 408);
Failing to notify a resident's physician concerning the resident's inability to obtain prescribed medication (Tag numbers A 602 and A 607);
Failing to maintain resident medication administration records that reflect that medications are administered to residents in accordance with their
physicians' orders and/or failing to administer medications to residents in accordance with their physicians' orders (Tag number A 604);
Failing to properly store medications (Tag number A 606);
Failing to encourage residents to participate in activities, and failing to document apparent deviations in the appearance and health of residents (Tag number A 700);
Failing to adequately assist residents in their activities of daily living, including grooming and selection of clothing (Tag number A 701);
Failing to provide sufficiently diversified activity programs, and failing to consult with residents in the planning and offering of activity programs (Tag number A 703);
Using unauthorized mechanical restraints (Tag number A 709);
Failing to provide food service in a sanitary manner as evidenced by the flies that were on the food in the main kitchen and dining room and the food service employees that were working without head coverings (Tag number A 800); 5/
Having an insufficient emergency food supply (Tag number A 810);
Failing to have an operable dishwasher and washing dishes in a single compartment sink, without sanitizers, in the satellite kitchen (Tag number A 812);.
Failing to keep the grounds and interior walls and floors of the facility reasonably clean-looking and attractive (Tag number A 903);
Having furniture and furnishings in need of cleaning and repair (Tag number A 904);
Improper storing of clothes, linens and other items needing to be washed, and improper storing of wet and dirty mops (Tag numbers A 910 and A 911);
Failing to have a written disaster preparedness plan, 6/ and failing to post fire evacuation signs (Tag number K 002);
Having walls with "unsealed hole penetrations" (Tag numbers K 009 and K 014);
Having sleeping room doors that did not close and latch properly (Tag number K 010);
Having "unsealed vertical hole openings throughout the facility" (Tag number K 011);
Failing to properly maintain air conditioning and ventilation systems "as evidenced by dirty a/c filters and non-functional vent fans in bathrooms throughout the facility" (Tag number K 015);
Failing to have a properly maintained, inspected and certified fire alarm system (Tag number K 016);
Failing to document appropriate smoke detector testing (Tag number K 017);
Failing to have an adequate cooking hood and extinguishing system (Tag number K 019);
Failing to maintain adequate means of egress from the facility (Tag number K 020); and
(aa) Failing to provide sufficient emergency lighting (Tag number K 021).
The new deficiencies cited by the Agency as a result of the follow-up CHOW survey up were as follows:
Failing to employ a consultant pharmacist licensed under Chapter 465, Florida Statutes, after having "uncorrected Class III deficienc[ies] directly related to the administration or supervision of self-administered medication documented by [Agency] personnel pursuant to an inspection of the facility" (Tag number A 610);
Failing to provide a physician-ordered therapeutic diet to a resident (Tag number A 802);
Failing to serve food at safe and palatable temperatures (Tag number A 811); and
Failing to employ a registered or licensed consultant dietician after having "uncorrected Class III deficienc[ies] directly related to dietary standards" (Tag number A 813).
Proposed Denial of Application and Imposition of Moratorium
The existence of these uncorrected and new deficiencies led the Agency
(a) to preliminarily decide to deny the Rosenthals' application for a license to continue to operate the facility as an ACLF, and (b) to impose a moratorium on admissions to the facility "to run concurrently with the denial action."
Post-July Survey Remedial Measures
The Rosenthals have taken measures designed to correct deficiencies that existed at the time of the follow-up CHOW survey.
Written health assessments of residents are now updated monthly.
The facility has retained the services of a consultant pharmacist, Alan Siegel, to assist it in complying with "minimum standards" relating to medication administration.
At the time Siegel was retained, Leon Rosenthal told him to "do whatever it took to get the facility into compliance in the areas of pharmaceuticals."
Siegel moved quickly to accomplish this objective. Only a day after he was retained, on or about July 13, 1994, he conducted an "in-service" training session attended by all of facility's available staff members.
He has conducted many other "in-services" for the facility's staff.
On or about August 6, 1994, Siegel, in his capacity as the facility's pharmacist consultant, sent the following letter to the Agency:
This letter is in response to your recommendations at Holly Heights Manor from July 12, 1994. I was called by the facility owner and asked to act as the facilit[y']s Consultant Pharmacist and started my first review of [the] facility on July 13 that included an inservice on Medication Observation and Psychotropic Side effects. This inservice appeared to go well, since then I have reviewed
the facility on July 28 as well as August 5 199[4]. Administration [i]n this facility is doing [its] best to correct the problems. I now have an agree- ment to act as Consultant Pharmacist and will keep in contact with you on an ongoing basis.
My initial reviews confirmed your findings and in my set of corrections I indicated what needs [to] and will be done.
A602- Resident #10 has had a long history of problems with his family who refuse[s] to be responsible for payment of his prescription medications. He presently owes over four hundred dollars. The facility has agreed to pay for his medications and medications are now available.
If you can help me recover the amounts owed to me I will be very appreciative.
A604-A610- Consultant Pharmacist was contacted and review confirmed problem. Inservice was done and follow-ups will continue.
A606- Proper disposal of discontinued medications is being followed and no medications are being left on the Administrator's desk.
A607- refers to A602 Facility was instructed to include in their documentation when medications cannot be sent due to inability to pay or refusal of family. This mainly refers to patients who have no Medicaid or any other aid.
Looking forward to seeing you in the future.
On or about December 19, 1994, Siegel completed an audit of the facility's medication administration records for each of the facility's residents. The audit revealed no discrepancies or any other indication that the deficiencies existing at the time of the follow-up CHOW survey still existed.
With Siegel's help, the facility has a medication administration system that the facility staff is now fully trained to implement in accordance with "minimum standards."
The facility now offers, on Tuesdays and Thursdays of each week, music therapy, reality orientation and stress reduction services to residents. These services are provided by a registered nurse employed by the Florida Psychiatric Group.
Residents have a neater appearance now than they did at the time of the follow-up CHOW survey.
As a general rule, residents are now bathed or showered every day and, as a result, look and smell clean.
Male residents are now shaved at least four times a week.
Residents' clothes are now changed during the day if they become soiled.
Residents are now given laundry bags in which to put their dirty laundry. The bags of dirty laundry are picked up every day by the facility's housekeeping staff.
A Medicare-funded home health aide now visits the facility four or five days a week to assist residents in their activities of daily living.
Since September or October of 1994, the Rosenthals have had a Florida- licensed pest control business, which also services other ACLFs, perform pest control services at the facility. Maximum (98 percent) pest elimination has been achieved.
The facility now has on hand, in the event of an emergency, a one week supply of non-perishable food items, including canned dried milk, beef, ravioli, and beef stew, among other items.
The dishwasher in the main kitchen has been repaired and is now operational.
The facility has a consultant dietician, Barbara Holland, but she has not provided the Agency with any reports concerning progress made at the facility in the area of food service since the follow-up CHOW survey.
The general cleanup of the facility and grounds has continued, spearheaded by Chuck Stevens, the facility's full-time maintenance man, and Cindy Gobin, an administrative assistant at the facility. Bleach and other chemicals have been used extensively in the cleanup effort.
Doors and walls, including a "rotted out," "musty" wall behind the commode in one of the bathrooms, have been replaced.
Although many pieces of furniture were replaced or repaired following the Rosenthals purchase of the facility, no furniture has been repaired or discarded since the initial CHOW survey.
Mops are now properly stored.
Holes in walls have been patched and sealed.
At a cost of approximately $4,900.00, the facility's fire alarm system has been upgraded. 7/ The upgraded system, which includes signaling devices,
has been certified in writing by Gerald Pinnock, the owner of Alpha Security & Fire Alarm Services, Inc., as being properly installed and functioning correctly in accordance with all applicable NFPA requirements. 8/
Work has been done on the air conditioning and ventilation systems. Entire units have been replaced.
The cooking hood and extinguishing system in the main kitchen has been repaired and has passed inspection (but not by Agency licensing personnel).
Electrical outlets, electrical wiring, light fixtures and bulbs have been replaced.
It appears that, all in all, substantial progress has been made in eliminating the deficiencies that existed at the facility at the time of the follow-up CHOW survey.
Agency Verification of Corrections
Agency personnel have visited the facility subsequent to the follow-up CHOW survey to investigate complaints and to monitor compliance with the Agency- imposed moratorium on admissions.
Fantell, for instance, visited the facility on August 12, 1994, on a complaint investigation. During her visit, she noted, among other things, that the facility still had an insufficient emergency food supply (a situation which subsequently was corrected).
Following the imposition of the moratorium, until November 30, 1994, Fantell was at the facility on a weekly basis.
During a monitoring visit on September 28, 1994, the facility failed to provide residents with the activity programs that had been scheduled for the time period that Fantell was at the facility, and it did not provide residents with any substitute activity programs.
During her last visit to the facility, on November 30, 1994, Fantell found a bottle of medication on a desk in an unlocked, open office in the facility. On this last visit, she was not permitted to tour the facility.
Although Agency personnel have visited the facility subsequent to the follow-up CHOW survey, they have not done so specifically for the purpose of conducting an inspection or survey to ascertain the extent to which the deficiencies discovered during the follow-up CHOW survey have been corrected.
No such survey or inspection has been conducted.
CONCLUSIONS OF LAW
The Agency is the state agency vested with the authority to administer the provisions of Florida's Adult Congregate Living Facilities Act, which are found in Chapter 400, Part III, Florida Statutes.
With certain exceptions not pertinent to the instant case, any person seeking to operate an ACLF in the State of Florida must first obtain a license from the Agency. Sections 400.404 and 400.407, Fla. Stat.
A license to operate an ACLF "is a public trust and a privilege and is not an entitlement." Section 400.401(3), Fla. Stat. 9/
The license is "valid only in the possession of the individual, firm, partnership, association, or corporation to which it is issued and [is] not subject to sale, assignment, or other transfer, voluntary or involuntary." Section 400.407(8), Fla. Stat.
Accordingly, when a licensed ACLF is sold or the ownership thereof is transferred, the transferee must obtain "a new license" from the Agency. 10/ Section 400.412(1), Fla. Stat.
The transferor is responsible for the "lawful operation of the facility until the date the transferee is licensed by the [A]gency." Section 400.412(3), Fla. Stat.
The Agency may deny a transferee's application for "a new license" based upon any of the grounds set forth in Section 400.414(2), Florida Statutes, which provides as follows:
Any of the following actions by a facility or its employee shall be grounds for action by the agency against a licensee:
An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.
The determination by the [A]gency that the facility owner or administrator is not of suitable character or competency, or that the owner lacks the financial ability, to provide continuing adequate care to residents, pursuant to the information obtained through s. 400.411, s. 400.417, or s. 400.434.
Misappropriation or conversion of the property of a resident of the facility.
Five or more repeated or recurring identical or similar class III violations of this part 11/ which were identified by the [A]gency during the last biennial inspection, monitoring visit, or complaint investigation and which, in the aggregate, affect the health, safety, or welfare of the facility residents.
A confirmed report of adult abuse, neglect, or exploitation, as defined in s. 415.102, or child abuse or neglect, as defined in s. 415.503, which has been upheld following a chapter 120 hearing or a waiver of such proceedings where the
perpetrator is an employee, volunteer, administrator, or owner, or otherwise has access to residents of
a facility, and the administrator has not taken action to remove the perpetrator. A perpetrator may seek an exemption from disqualification through the procedures provided in s. 415.107(5)(b). No administrative action may be taken against the
facility if the perpetrator is granted an exemption.
Violation of a moratorium.
Failure of the licensee during relicensure,
or failure of a licensee that holds an initial or change or ownership license to meet minimum license standards or the requirements of rules adopted under this part. 12/
A fraudulent statement on an application for a license or any other document required by the [A]gency that is signed and notarized.
"A facility the license of which is denied . . . as a result of a violation of s. 400.414 may be subject to immediate imposition of a moratorium on admissions to run concurrently with licensure denial." Section 400.415, Fla. Stat.
A transferee whose application for "a new license" the Agency preliminarily determines to deny is entitled to notice of the grounds for the Agency's proposed denial of its application and an opportunity to have a Chapter
120 hearing on the Agency's proposed action. Section 120.60(3), Fla. Stat.
"At the [C]hapter 120 hearing, the [A]gency must prove by a preponderance of evidence that its actions are warranted." Section 400.414(1), Fla. Stat.
In attempting to meet its burden of proof, the Agency must restrict its evidentiary presentation to the grounds set forth in the notice (or any amended notice) 13/ it furnished the transferee of the proposed denial of the transferee's licensure application. See Klein v. Department of Business and Professional Regulation, 625 So.2d 1237, 1238-39 (Fla. 2d DCA 1993); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So.2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
The Chapter 120 hearing is a de novo proceeding "intended to formulate final agency action, not to review action taken earlier and preliminarily." McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977).
Accordingly, in determining whether the Agency has met its burden of proving that the transferee's application should be denied on the grounds set forth in the notice (or any amended notice) of proposed license denial, the hearing officer "is not limited to consideration of the record made by [the Agency] during its preliminary investigation of the [transferee's] application and may freely consider any and all additional evidence presented by the parties, including evidence of changed conditions [at the facility] since the preliminary review, so long as [the evidence] is relevant" to the issues raised in the notice (or any amended notice). Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700, 710 (Fla. 1st DCA 1985).
Thus, where the notice alleges that the transferee's application should be denied pursuant to subsection (2)(g) of Section 400.414, Florida Statutes, because of the transferee's failure, as evidenced by pre-notice Agency-conducted surveys of the facility, to meet certain "minimum . . . .
standards" and "requirements" for ACLFs, the hearing officer should "freely consider" evidence of the existing conditions at the facility, to the extent
that such evidence may shed light on whether the transferee is currently in compliance with the "minimum . . . . standards" and "requirements" referenced in the notice.
Deficiencies that existed at the time of the pre-notice surveys, however, may not be deemed to have been corrected unless the corrections have been "documented in writing by the administrator of the facility and verified through follow-up visits by licensing personnel of the [A]gency." Section 400.419(1)(d), Fla. Stat.
In the instant case, the Agency's notice of its proposed denial of the Rosenthals' application for a license to continue to operate Holly Heights Manor as an ACLF cited the "[f]ailure to meet minimum licensure standards during the June 6-7 change of ownership survey and follow-up/appraisal visits of July 12 and 18, 1994," as the reason for the Agency's proposed action, which according to the notice, was authorized by subsection (2)(g) of Section 400.414, Florida Statutes.
At the Chapter 120 hearing held in this case, the Agency established the Rosenthals' failure to substantially comply with "minimum . . . .
standards" and "requirements" for ACLFs. The preponderance of the evidence adduced at hearing demonstrates that there were numerous violations that existed at the facility at the time of the initial CHOW survey in June, 1994, of which the Rosenthals were made aware, and that many of these same violations still existed at the time of the follow-up CHOW survey the following month. 14/
While it appears that the Rosenthals have done much since the follow-up CHOW survey in an effort to remedy these remaining violations, as well as the four new deficiencies uncovered during that July survey, 15/ the Rosenthals' remedial efforts have not been subjected to the scrutiny of "licensing personnel of the [A]gency" dispatched to the facility to verify, as required Section 400.419(1)(d), Florida Statutes, that their efforts have been sufficient to bring the facility into substantial compliance with the "minimum . . . .
standards" and "requirements" for ACLFs.
Under such circumstances, although it may not be legally required to do so, given the substantial investment, as well as the apparent progress, the Rosenthals have made in their efforts to correct deficiencies noted during the initial and follow-up CHOW surveys, the Agency, through its "licensing personnel," should immediately conduct another follow-up survey of the facility 16/ to ascertain the extent to which deficiencies that existed at the time of the July follow-up CHOW survey have been corrected. 17/ If the survey reveals that the facility substantially complies with the "minimum standards"
and "requirements" for ACLFs, the Rosenthals' application for licensure should be granted. 18/ If the survey reveals a lack of such substantial compliance, their application should be denied. If there is a disputed issue of material fact concerning the survey findings, the matter should be remanded to the Hearing Officer for resolution.
The moratorium on admissions to the facility imposed pursuant Section 400.415, Florida Statutes, 19/ should remain in effect pending the final disposition of the Rosenthals' application for licensure. 20/
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Agency, (1) through its "licensing personnel," immediately conduct another follow-up survey of Holly Heights Manor to ascertain the extent to which deficiencies that existed at the time of the July follow-up CHOW survey have been corrected, and (2) thereafter take action consistent with the results of that survey.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of February, 1995.
STUART M. LERNER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1995.
ENDNOTES
1/ Whether the Rosenthals were issued "a new license" as Feeney suggested in her letter or simply a "provisional license" of limited duration granted pursuant to Section 400.411(6), Florida Statutes, pending final Agency action on their application for "a new license" is not entirely clear from the record in the instant case. The record does not contain a copy of any license that the Agency may have issued the Rosenthals to operate Holly Heights Manor as an ACLF, nor does it contain any correspondence from the "ACLF section in Tallahassee" reflecting that it had indeed issued the Rosenthals such a license. It appears, however, from a reading of the August 25, 1994, letter from the "ACLF section in Tallahassee" to the Rosenthals announcing the Agency's intention to deny the Rosenthals' "change of ownership application" for a license to operate Holly Heights Manor as an ACLF (which letter is a part of the record in the instant case) that any license that the Rosenthals may have been granted previously in connection with their "change of ownership application" was not "a new license." In any event, whether it seeks to deny an application for "a new license" following the issuance of a "provisional license" or whether it seeks to revoke "a new license" that has already been granted, in either case, the Agency is authorized to take such action based upon the facility's failure to meet "minimum . . . . standards" and "requirements" for ACLFs and it must establish the existence of such noncompliance by a preponderance of the evidence.
2/ The follow-up CHOW survey therefore was conducted more than 30 days after the Rosenthals had been orally notified by the Agency of the existence of these deficiencies and of their obligation to correct them.
3/ Agency personnel conducting surveys of ACLFs use "tag numbers" to identify particular "minimum standards" that must be met by the facility.
4/ For the past eight years, Donald Weiss, O.D., has provided primary care health services to residents at Holly Heights. He makes regular visits to the facility every two weeks and is in almost daily telephonic contact with the
visiting registered nurses from Med Tech Home Health Services who provide nursing services at the facility. During his visits to the facility, Dr. Weiss sees those residents who are brought to his attention and he provides the nurses with orders concerning these residents' care and treatment. The nurses at the facility provide him with a written report detailing what has been done to carry out his orders. Dr. Weiss maintains, in his office, records concerning the care and treatment of these residents, including assessment forms that he completes while he is at the facility. In addition to Dr. Weiss and the visiting registered nurses from Med Tech Home Health Services, other health care professionals who visit the facility on a regular basis to provide services to residents are Dr. Morton Schomer, an optometrist who visits once a month, and Dr. Steven Brandewene, a podiatrist who visits the facility twice a month and during each visit examines every resident. Like Dr. Weiss, Dr. Schomer maintains, in his office, a record on each patient he sees at the facility.
5/ The Agency's statement of deficiencies also listed, under Tag number A 800, "fail[ing] to follow the planned menu with appropriate substitutions" as an uncorrected deficiency. In this respect, the statement is inaccurate.
According to Clancy's testimony at hearing, which the Hearing Officer has credited, "[t]hat [deficiency of deviating from the planned menu without making appropriate substitutions] was corrected [by the time of] the follow-up survey."
6/ Although this deficiency existed as of July 18, 1994, it was corrected the following day, July 19, 1994, as the Agency's notice of deficiencies indicates.
7/ The upgrades were substantially completed in September of 1994. 8/ Pinnock's written certification is dated December 19, 1994.
9/ As required by Section 400.401(3), Florida Statutes, the Hearing Officer has taken this "principle" into consideration in making the Findings of Facts and Conclusions of Law set forth in this Recommended Order.
10/ Pursuant to Section 400.411(6), Florida Statutes, a transferee applying for "a new license" may be granted a provisional license for "a specific period not to exceed 6 months, as determined by the [A]gency.
11/ "Class III violations," as used in subsection (2)(d) of Section 400.414, Florida Statutes, are "those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the [A]gency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents." Section 400.419(3)(c), Fla. Stat.
12/ The "rules" referenced in subsection (2)(g) of Section 400.414, Florida Statutes, establishing "minimum . . . . standards" and "requirements" for ACLFs, are found in Chapter 10A-5, Florida Administrative Code. They were adopted pursuant to Section 400.441, Florida Statutes, which authorizes the Department of Health and Rehabilitative Services, in consultation with the Agency and the Department of Elderly Affairs, to promulgate, publish and enforce rules to implement the provisions of [Chapter 400, Part III, Florida Statutes], which shall include reasonable and fair minimum standards in relation to:
The maintenance of facilities . . . relating to plumbing, heating, lighting, ventilation, and other housing conditions, which will ensure the health, safety, and comfort of residents and protection from fire hazard, including adequate provisions for fire alarm and other fire protection suitable to the size of the structure. . . .
The preparation and annual update of a comprehensive emergency management plan. . . .
The number and qualifications of all personnel having responsibility for the care of residents. . . .
All sanitary conditions within the facility and its surroundings, including water supply, sewage disposal, food handling, and general hygiene, and maintenance thereof, which will ensure the health and comfort of residents. . .
.
The levying and enforcement of penalties and use of income from fees and fines.
The enforcement of the resident bill of rights specified in s. 400.428.
The care and maintenance of residents which shall include, but not be limited to:
The provision of personal services;
The provision of, or arrangement for, social and leisure activities;
The arrangement for appointments and transportation to appropriate medical, dental, nursing, or mental health services, as needed by residents;
The provision of limited nursing services; and
The provision of extended congregate care services.
The establishment of specific criteria to define appropriateness of admission and continued residency.
The definition and use of physical or chemical restraints. The use of physical restraints is limited to half-bed rails as prescribed and documented by the resident's physician with the consent of the resident or, if applicable, the representative or designee or the resident's surrogate, guardian, or attorney in fact. . . .
13/ The Agency may amend its original notice to include additional grounds for the proposed denial of the transferee's application, but only if it does so in a timely manner that does not unfairly prejudice the transferee. See Mrmich v.
Switzer, 553 So.2d 1308, 1309 (Fla. 3d DCA 1989); International Patrol and Detective Agency, Inc. v. Aetna Casualty & Surety Company, 396 So.2d 774, 776 (Fla. 1st DCA 1981); Brown v. Montgomery Ward & Company, 252 So.2d 817, 819 (Fla. 1st DCA 1971).
14/ The Hearing Officer rejects as unpersuasive the argument advanced by the Rosenblatts that the Agency acted improperly and in violation of their rights in not conducting the follow-up CHOW survey at a later date than it did to give them more time to correct these violations.
15/ All of these deficiencies are Class III violations.
16/ The Agency should proceed in a manner that does not cause it to run afoul of the time requirements imposed by Section 120.60, Florida Statutes, for taking final action on applications for licensure.
17/ There have been no allegations made that any condition at the facility presents an imminent threat to the residents' health, safety or welfare.
Accordingly, it does not appear that delaying the final outcome of the instant proceeding to permit the Agency to conduct an additional follow-up survey of the facility will have any significant deleterious effect on the facility's residents.
18/ The Agency may grant a transferee's application for "a new license," notwithstanding the transferee's failure to meet all "minimum . . . .
standards" and "requirements" for ACLFs, if the deficiencies that exist are
minor and isolated and it appears that the transferee has made, and will continue to make, a good faith effort to attain full compliance with these "minimum . . . . standards" and "requirements." The Agency has means available to it other than license denial to deal with such deficiencies. Section 400.419(1)(a) and (2), Fla. Stat.
19/ In their proposed recommended order, the Rosenthals challenge the constitutionality of Section 400.415, Florida Statutes. The Hearing Officer, however, is without authority to rule upon the constitutionality of this or any other statute. See Dependable Air Conditioning and Appliances, Inc., v. Office of Treasurer and Insurance Commissioner, 400 So.2d 117, 120 (Fla. 4th DCA 1981); Adams Packing Association v. Florida Department of Citrus, 352 So.2d 569, 571 (Fla. 2d DCA 1977).
20/ The issues raised in the Rosenthals' proposed recommended order concerning the Agency's authority to impose moratoriums on other facilities in which the Rosenthals have an ownership interest are beyond the scope of this proceeding and therefore have not been addressed by the Hearing Officer in this Recommended Order.
APPENDIX TO RECOMMENDED ORDER
The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their post-hearing submittals:
Petitioner's Proposed Findings
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding asserts that the Rosenthals have already been granted "a new license" (as opposed to merely a "provisional license") to operate Holly Heights Manor as an ACLF, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance, but not necessarily repeated verbatim, in this Recommended Order.
First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
First and third sentences: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding states that the letter accompanying the statement of deficiencies sent to the Rosenblatts was dated June 21, 1994, (as opposed to June 13, 1994,) it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
Before first comma: Accepted and incorporated in substance;
Remainder: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a summary or recitation of testimony adduced at hearing than a finding of fact based upon such testimony.
To the extent that this proposed finding states that the letter accompanying the statement of deficiencies sent to the Rosenblatts was not mailed to the facility or the Rosenblatts until on or about June 21, 1994, (as opposed to on or about June 13, 1994) it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a description of evidence offered at hearing and an explanation of why it was offered than a finding of fact based upon such evidence.
To the extent that this proposed finding asserts that the Agency acted "in violation of the Agency's standard operating procedure, which calls for the return of the surveyors after thirty days to determine the status of the deficiencies or the correction of the deficiencies," it has been rejected because it lacks sufficient evidentiary/record support. In the instant case, the Agency returned to Holly Heights Manor more than 30 days after the completion of the initial CHOW survey in accordance with Agency policy. To the extent that this proposed finding asserts that the Agency "returned to Holly Heights on July 12, 1994 for the follow-up survey," it has been accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a summary or recitation of testimony adduced at hearing than a finding of fact based upon such testimony.
To the extent that this proposed finding asserts that: (a) the follow- up CHOW survey was completed within 30 days of the Rosenblatts' receipt of the written statement of deficiencies found during the initial CHOW survey; and (b) the letter accompanying the written statement of deficiencies sent to the Rosenblatts was dated June 21, 1994, (as opposed to June 13, 1994), it has been rejected because it lacks sufficient evidentiary/record support. To the extent that it addresses the recommendation made by Feeney, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that it asserts that the Agency imposed a moratorium on admissions to the facility, it has been accepted and incorporated in substance. To the extent that it asserts that Feeney recommended the imposition of monetary sanctions and the denial of licensure, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that it asserts that the Agency "depart[ed] from standard operational procedures of permitting [a minimum of 30 days] to make Class III repairs," it has been rejected because it lacks sufficient evidentiary/record support.
Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third and fourth sentence: Rejected as findings of fact because they are more in the nature of summaries of, and arguments concerning, evidence adduced at hearing than findings of fact based upon such evidence.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected as a finding of fact because it is more in the nature of a summary or recitation of testimony adduced at hearing than a finding of fact based upon such testimony.
First and second sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony; Remainder: Rejected because it is more in the nature of argument concerning testimony adduced at hearing than a finding of fact based upon such testimony.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Third sentence: Accepted and incorporated in substance
Accepted and incorporated in substance.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
To the extent that this proposed finding asserts: that (1) "[a] city permit was pulled on August 4, 1994, to do this job;" and (2) "the work on the fire system actually started earlier," it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that it asserts that "the initial costs were in excess of $3600.00," it has been accepted and incorporated in substance. Remainder: Rejected as a finding of fact because it is more in the nature of a recitation of testimony adduced at hearing than a finding of fact based upon such testimony.
and f. Accepted and incorporated in substance.
To the extent that this proposed finding asserts that the system has been certified by Pinnock as meeting all applicable NFPA requirements, it has been accepted and incorporated in substance.
To the extent that this proposed finding asserts that "posters have been secured," it has been rejected because it lacks sufficient evidentiary/record support. To the extent that this proposed finding asserts that "documentation of fire drills are kept and training has been undertaken," it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Remainder: Accepted and incorporated in substance.
To the extent that this proposed finding asserts that the "repair process at Holly Heights . . . beg[an] in March, 1994" (as opposed to shortly after the Rosenblatts purchased the facility), it has been rejected because it lacks sufficient evidentiary/record support. Remainder: Accepted and incorporated in substance.
To the extent that this proposed finding asserts that: (1) the doors "are now capable of being latched and closed," and (2) the "repair process at Holly Heights . . . beg[an] in March, 1994" (as opposed to shortly after the Rosenblatts purchased the facility), it has been rejected because it lacks sufficient evidentiary/record support. Remainder: Accepted and incorporated in substance.
and l. To the extent that these proposed findings assert that the "repair process at Holly Heights . . . beg[an] in March, 1994" (as opposed to shortly after the Rosenblatts purchased the facility), they have been rejected because they lack sufficient evidentiary/record support. Remainder: Accepted and incorporated in substance.
24.m. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
25.a.-c. Accepted and incorporated in substance.
First, second and fourth sentences: To the extent that these proposed findings suggest that the facility was cited for the referenced violations (Tag numbers A 602 and A 607) for reasons other than the facility's failure to notify the resident's physician of the resident's inability to obtain prescribed medication, as evidenced by the lack of any documentation that such notification was given, it has been rejected because they lack sufficient evidentiary/record support. Otherwise, they have been accepted and incorporated in substance; Third sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.
Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
Accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
Before last comma: Accepted and incorporated in substance; After last comma: Rejected as unpersuasive argument.
Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
26.a.-b. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected because it lacks sufficient evidentiary/record support; Third sentence: Rejected as a finding of fact because it is more in the nature of a summary or recitation of testimony adduced at hearing than a finding of fact based upon such testimony; Fourth sentence: Accepted and incorporated in substance; Fifth and sixth sentences: Rejected because, even if supported the record, they would have no impact on the outcome of the instant case.
Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
26.f.-g. Rejected as findings of fact because they are more in the nature of summaries of, and arguments concerning, evidence adduced at hearing than findings of fact based upon such evidence.
To the extent that this proposed finding asserts that Clancy returned to the facility only "21 days after the letter of notification was mailed to the facility" and that there was a "21 day period between the notice to the facility and the follow-up survey," it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
Before last comma: Rejected because it lacks sufficient evidentiary/record support; After last comma: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Second sentence: Not incorporated in this
Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
27.a.(1)-(2). Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony.
27.a.(3). Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
27.a.(4). Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
Accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
and e. Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony.
First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Remainder: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
Accepted and incorporated in substance.
27.h.(1). First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
27.h.(2) To the extent that it asserts that: (a) Thomas saw furniture that "was not kept nicely," and (b) walls have been replaced at the facility, it has been accepted and incorporated in substance. To the extent that it states that Thomas "did not recognize the furniture set forth in Petitioner's Exhibit 12-A as an example of furniture at Holly Heights 'based on Room 3, Building C,'" it has been rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Remainder: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
28.a.-b. Accepted and incorporated in substance.
28.c. Rejected as a finding of fact because it is more in the nature of a summary or recitation of testimony adduced at hearing than a finding of fact based upon such testimony.
27.d To the extent that this proposed finding asserts that Dr. Schomer "has never been asked by any governmental agency to produce the [office records he keeps on patients he sees at the facility]", this proposed finding has been
rejected because, even if was supported by the record, it would not have an impact on the outcome of the instant case.
28.e. Accepted and incorporated in substance.
28.e.(1). and (2). Accepted and incorporated in substance.
28.e.(3). Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
28.e.(4).-(6). Accepted and incorporated in substance. 28.f.-g. Accepted and incorporated in substance.
28.g.(1)-(3). Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
28.g.(4). To the extent that this proposed finding asserts that all of the facility's records "are complete at this point in time," it has been rejected because it lacks sufficient evidentiary/record support.
First, second and third sentences: Accepted and incorporated in substance; Fourth sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Fifth and sixth sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third, fourth and fifth sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony; Sixth sentence: Rejected as a finding of fact because it is more in the nature of a summary of, and argument concerning, evidence adduced at hearing than a finding of fact based upon such evidence.
First sentence: Accepted and incorporated in substance; Remainder: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. 31a.-b. Rejected as findings of fact because they are more in the nature
of summaries of testimony adduced at hearing than findings of fact based upon such testimony.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it lacks sufficent evidentiary/record support; Fourth sentence: Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.
First and third sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Rejected because they lack sufficient evidentiary/record support; Third and fourth sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony; Fifth sentence: Rejected as a finding of fact because it is more in the nature of a summary of, and argument concerning, evidence adduced at hearing than a finding of fact based upon such evidence.
The Agency's Proposed Findings
1-2. Accepted and incorporated in substance.
3-6. Rejected as findings of fact because they are more in the nature of statements of law than findings of fact.
Accepted and incorporated in substance.
First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact based upon such evidence.
9-10. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the state of the evidentiary record than a finding of fact.
Rejected as a finding of fact because it is more in the nature of argument regarding the state of the evidentiary record than a finding of fact.
COPIES FURNISHED:
Roberta Fox, Esquire Fox and Gold, P.A.
200 South Biscayne Boulevard 20th Floor
Miami, Florida 33131
Fredericka Sands, Esquire Senior Attorney
Agency for Health Care Administration
401 Northwest Second Avenue N-526
Miami, Florida 33128
Sam Power, Agency Clerk
Agency for Health Care Administration The Atrium, Suite 301
325 John Knox Road Tallahassee, Florida 32303
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION
HOLLY HEIGHTS MANOR,
Petitioner, CASE NO.: 94-5193
AHCA NO.: 10-94-102CLF
vs. RENDITION NO.: AHCA-95-712-FOF-OLC
STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Agency for Health Care Administration (AHCA). The Recommended Order entered February 24, 1995, by Hearing Officer Stuart M. Lerner is incorporated by reference.
FINDINGS OF FACT
The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
Holly Heights was a poorly run facility (ACLF) and in deplorable condition when acquired by the present owners. See paragraph 11. The owners seek a change of ownership license. After receipt of the application for licensure an inspection was conducted and many serious violations were found. At a follow- up inspection some corrections had been accomplished, but most violations remained uncorrected and four new violations were cited. See paragraphs 19, 26, 29, and 30. AHCA imposed a moratorium and denied the application for licensure based on the slow pace of correction and serious nature of the rule violations. The AHCA decisions were challenged. The hearing officer found that numerous violations existed at the time of the post sale inspection by AHCA, but as of the date of the final hearing, December 20 and 21, 1994, substantial progress had been made in correcting the violations. See paragraph 60. The hearing officer recommends that AHCA conduct another follow-up inspection to determine the extent to which violations have been corrected and that the moratorium remain in effect pending the agency's determination whether the application for licensure should be approved. If the agency accepted the recommendation and Holly Heights continued to fall below minimum standards for licensure after the recommended inspection, the hearing officer suggests that the case could then be remanded to the Division of Administrative Hearings for additional fact finding proceedings. See paragraph 85.
CONCLUSIONS OF LAW
The agency hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the following:
Holly Heights is an "adult congregate living facility" (ACLF). The goal of state regulation is to promote the dignity, privacy, health, and safety of the elderly and disabled residents of such homes. The legislature has emphasized that a license to operate such an ACLF is a public trust, not an entitlement, and that this principle should guide the fact finder in Adjudicatory proceedings. See Section 400.401(2) and (3), Florida Statutes. The mission of an ACLF is to serve its residents in a homelike setting by providing room, board, and assistance as needed with walking, bathing, dressing, eating, grooming, toileting, taking of medicines, and similar activities.
The hearing officer's return of this case to the agency for another inspection, with potential remand. /1 back to the hearing officer goes beyond the concept of de novo review and starts all over again the free form 2/ licensure process. 3/ The hearing officer conducted a two day evidentiary hearing (December 20 and 21,1994) and concluded that the agency's initial decisions were correct. See paragraph 84. I conclude that this application for licensure should be denied.
Based upon the foregoing, it is
ADJUDGED, that the application for licensure be denied.
DONE and ORDERED this 11 day of May, 1995, in Tallahassee, Florida.
Douglas M. Cook, Director Agency for Health Care
Administration
ENDNOTES
1/ See Section 120.57(I)(b)3, Florida Statutes (An agency may take no action except as a party litigant while jurisdiction is at the Division of Administrative Hearings).
2/ As distinguished from the formally structured adjudicatory proceeding under the Administrative Procedure Act. See capeletti Brothers vs. Department of Transportation, 362 So2d 346 (Fla. 1st DCA 1978)(Free form proceedings are the "every day" way that an agency carries out its business).
3/ See Gulf Court Nursing Center vs. Department of Health and Rehabilitative Services, 483 So2d 700 (Fla. 1st DCA 1985)(Scope of de novo review limited).
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
COPIES FURNISHED:
Roberta Fox, Esquire FOX AND GOLD, P. A.
200 South Biscayne Boulevard 20th Floor
Miami, Florida 33131
Edward Lerner, Esquire
Division of Health Quality Assurance
401 Northwest 2nd Avenue Miami, Florida 33128
Stuart M. Lerner Hearing Officer
DOAH, DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
CERTIFICATE OF SERVICE
HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addresses by U.S. Mail this 11th day of May, 1995.
R. S. Power, Agency Clerk State of Florida, Agency for
Health Care Administration
325 John Knox Road
The Atrium Building, Suite 301 Tallahassee, Florida 32303
(904)922-3808
| Issue Date | Proceedings |
|---|---|
| Aug. 25, 1995 | Final Order filed. |
| Jul. 07, 1995 | Joint Stipulation of Settlement filed. |
| Jun. 22, 1995 | Petition for Supersedes and Stay Motion to Expedite Decision on Stay filed. |
| May 12, 1995 | Final Order filed. |
| Feb. 24, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 12/20-21/94. |
| Jan. 31, 1995 | (Petitioner) Motion to Continue filed. |
| Jan. 31, 1995 | (Petitioner) Motion to Continue filed. |
| Jan. 30, 1995 | Order sent out. (motion denied) |
| Jan. 30, 1995 | Petitioner`s Proposed Findings of Fact and Argument filed. |
| Jan. 30, 1995 | Respondent`s reply to Motion for Continuance filed. |
| Jan. 30, 1995 | Respondent`s Proposed Recommended Order (for Hearing Officer Signature) w/exhibits filed. |
| Jan. 09, 1995 | Transcripts (Volumes I, II, III/tagged) filed. |
| Dec. 29, 1994 | Petitioner`s Exhibit 1 through 20 filed. |
| Dec. 28, 1994 | Memorandum to Hearing Officer from F. Sands re: Respondent`s exhibits from formal hearing held on 12/20-21 filed. |
| Dec. 22, 1994 | (Petitioner) Amended Pre-Trial Stipulation filed. |
| Dec. 20, 1994 | CASE STATUS: Hearing Held. |
| Dec. 19, 1994 | (Petitioner) Pre-Trial Stipulation filed. |
| Dec. 16, 1994 | Order sent out. (hearing rescheduled for 12/20/95; 9:00am) |
| Dec. 15, 1994 | Respondent`s Motion To Amend Denial Letter filed. |
| Dec. 09, 1994 | Petitioner`s Response to Initial Order and Motion to Consolidate Cases Pending Before DOAH and Motion to Expedite All Matters to December 14, 1994 Hearing (with DOAH Case No/s. 94-5193, 94-6626) filed. |
| Dec. 08, 1994 | Order sent out. (motion to consolidate denied) |
| Dec. 07, 1994 | Petitioner`s Response to Initial Order and Motion to Consolidate Cases Pending Before DOAH and Motion to Expedite all Matters to December 14, 1994 Hearing (consolidate w/94-6626) filed. |
| Dec. 07, 1994 | Corrected Petitioner`s Response to Initial and Motion to Consolidate Cases Pending Before DOAH and Motion to Expedite All Matters to December 20, 21, 1994 Hearing filed. (w/94-6626 and 94-6625) |
| Nov. 12, 1994 | CC: Letter to F. Sands from R. Fox (RE: request for notice of violations charged against Petitioners) filed. |
| Oct. 24, 1994 | Order sent out. (hearing rescheduled for Dec. 20-21, 1994; 10:15am; Ft. Lauderdale) |
| Oct. 21, 1994 | (Petitioner) Addendum to Sworn Motion to Expedite Hearing Or In The Alternative Motion for Hearing to Require Agency to Show Cause Why The Moratorium Should Not Be Lifted Pending Further Proceedings In This Matter filed. |
| Oct. 19, 1994 | (Petitioner) Sworn Motion to Expedite Hearing Or In The Alternative Motion for Hearing To Require Agency To Show Cause Why The Moratorium Should Not Be Lifted Pending Further Proceedings In This Matter filed. |
| Oct. 13, 1994 | Order Requiring Prehearing Stipulation sent out. (5 days prior to hearing) |
| Oct. 13, 1994 | Notice of Hearing sent out. (hearing set for 01/19 & 20/95;9:00AM;Ft. Lauderdale) |
| Oct. 05, 1994 | (Respondent) Response to Initial Order filed. |
| Oct. 03, 1994 | Petitioner`s Response to Initial Order filed. |
| Sep. 23, 1994 | Initial Order issued. |
| Sep. 19, 1994 | Notice; Request for Administrative Hearing, letter form; Agency Action letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 11, 1995 | Agency Final Order | |
| Feb. 24, 1995 | Recommended Order | Although Adult Congregate Living Facility did not meet min stand as of last survey of facility, given apparent progress made since there should be another survey before final decision on license. |
