STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. )

) FRIEDA HOFFMAN, d/b/a HOFFMAN, ) FRIEDA ADULT FAMILY CARE HOME, )

)

Respondent. )

Case No. 01-2711

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on December 19, 2001, in Crestview, Florida, before the Division of Administrative Hearings by its assigned Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Mail Stop Number 3

Tallahassee, Florida 32308-5403

For Respondent: Frieda Hoffman, pro se

5093 Okaloosa Lane

Crestview, Florida 32539 STATEMENT OF THE ISSUES

Whether Respondent committed the violations in the Administrative Complaint and, if so, whether Respondent's

license to operate Hoffman, Frieda Adult Family Care Home should be renewed.

PRELIMINARY STATEMENT

Petitioner, Agency for Health Care Administration (AHCA), issued an Administrative Complaint against Frieda Hoffman, d/b/a Hoffman, Frieda Adult Family Care Home on or about February 14, 2001. The Administrative Complaint alleged that Respondent violated Section 400.628(1), Florida Statutes, and Rules 58A- 14.010(1)(a), 58A-14.007(2)(a),(4)(a),and(6)(b), Florida

Administrative Code, for failure to maintain the health, safety, or welfare of the facility's residents. The Administrative Complaint seeks the denial of licensure renewal for Respondent's adult family care home.

Respondent disputed the allegations in the Administrative Complaint and requested an administrative hearing. The case was referred to the Division of Administrative Hearings on or about July 11, 2001. A Notice of Hearing was issued on August 1, 2001, which noticed the case for final hearing on September 25, 2001.

On September 20, 2001, Respondent's attorney filed a Motion to Withdraw as Attorney. On September 21, 2001, Petitioner filed an Emergency Motion for Continuance. Oral argument was heard on both motions on September 24, 2001.

On September 24, 2001, an Order Granting Continuance and Placing Case in Abeyance was issued requiring the parties to confer and advise the undersigned no later than October 12, 2001, as to the status of the matter and mutually-agreeable dates for re-scheduling the final hearing. The Order granting Continuance and Placing Case in Abeyance was mailed to Respondent. Respondent did not file a response to the Order or to AHCA's Status Report.

On October 4, 2001, an Order on Motion to Withdraw as Attorney was issued granting Respondent's attorney's Motion to Withdraw as Attorney. This Order was also mailed to Respondent.

On October 30, 2001, a Notice of Hearing was issued which noticed the case for final hearing on December 19, 2001. The Notice of Hearing was mailed to Respondent.

At the commencement of the hearing, Respondent requested a continuance. Petitioner objected on the grounds of untimeliness and that Petitioner's witnesses, some of whom traveled from out- of-town, were all assembled and ready. After hearing argument of the parties, the request for continuance was denied. After the request was denied, Respondent announced that she had a new attorney. A 10-minute recess was called to enable Respondent to call her attorney in an attempt to allow Respondent's attorney to participate in the discussion of the request for continuance. Respondent did not state the name of her new attorney before she

left the hearing room. After 20 minutes had passed, Respondent had not returned to the hearing room. The hearing resumed and AHCA presented its case.

At hearing, Petitioner presented the testimony of two witnesses, John Newton and Greg Rice. Petitioner's Exhibits 1 through 3 were admitted into evidence.

At the end of Petitioner's case, Respondent had not reentered the room therefore missing her opportunity to represent herself or defend herself of the allegations of the Administrative Complaint. The hearing was closed. After the hearing had closed, Respondent reentered the room inquiring as to whether the undersigned had contacted her attorney.

Respondent was reminded that it was she who was supposed to call her attorney and that the identity of her attorney was still unknown to anyone who had remained in the room. Respondent was told of her right to file a post-hearing submission and the time for filing same.

A transcript consisting of one volume was filed on January 11, 2002. Pursuant to Rule 106.215, Florida Administrative Code, the time for filing post-hearing submissions was set at 10 days after the filing of the transcript. Petitioner filed a Proposed Recommended Order on January 22, 2002. Respondent did not file a post-hearing

submission. On January 30, 2002, a Notice of Appearance was filed by Aaron B. Wertz on behalf of Respondent.

FINDINGS OF FACT

1. Petitioner is the agency responsible for the licensing and regulation of adult family care homes in Florida pursuant to Chapter 400 Part VII, Florida Statutes.

2. Mr. John Newton is a life safety inspector for AHCA and had conducted annual surveys of Frieda Hoffman's Adult Family Care Home over the years. As a result of a complaint received by AHCA from Adult Protective Services of Florida, Mr. Newton went to Respondent's facility to conduct a complaint investigation. The complaint involved an incident that happened in Alabama regarding a 98-year-old resident of Hoffman's facility (Resident 1) as reported by Alabama Adult Protective Services to Florida Adult Protective Services.

3. During the course of the investigation, Mr. Newton gathered documents including a copy of a police report from the Hoover Police Department in Alabama and a hospital report from Shelby Baptist Medical Center in Alabama. He interviewed the police officer, the emergency room physician, the daughter-in- law of Resident 1, a former alternate caregiver, and another resident of the facility (Resident 2).

4. On January 1, 2001, police officers were called to the scene at a bar in Hoover, Alabama, where Mrs. Frieda Hoffman and her daughter, Jeanette Hoffman, were intoxicated and had been fighting physically. While at the bar investigating the domestic fight, the officers went outside to where the Hoffmans' van was parked.

5. Resident 1 had been travelling with Mrs. Hoffman and her daughter in their van. At 3:50 a.m., Resident 1 was discovered by the police officers in the rear of the Hoffmans' van wearing a nightgown, a coat, and covered by a blanket. The ignition was not on despite the snowy 20 degree weather. Resident 1 was sitting in the van next to two soiled dog cages. The police report noted that the van had a strong odor like a kennel. The only response the police officer could get from Resident 1 was that she opened her eyes. Upon inquiry,

   Mrs. Hoffman initially told the police officer that Resident 1 was her mother. However, she later told the officer the identity of Resident 1 and gave the officer phone numbers of Resident 1's family. Resident 1 was taken by ambulance to Shelby Baptist Medical Center's Emergency Room.

6. The triage sheet from the emergency room nurse indicates that when Resident 1 arrived at the hospital, she was wearing a urine-soaked diaper, had a bluish color to the right hand and left shoulder, and had edema to the right hand and

   forearm. The emergency room physician's report indicates that when Resident 1 was admitted, she was suffering from a urinary tract infection, dehydration, hypertension, two fractured fingers, and a pressure area to the right ankle. Resident 1 also suffered from dementia with depression and confusion.

7. When Mr. Newton went to the Hoffman adult care home as part of the complaint investigation, Mrs. Frieda Hoffman and her daughter, Jeannette, were there. Mrs. Hoffman did not cooperate with Mr. Newton's questioning. Jeannette Hoffman did attempt to answer Mr. Newton's questions, but Mrs. Hoffman became belligerent with her daughter and the two started arguing and pushing each other around.

8. Greg Rice is employed by AHCA in the assisted living unit. His unit regulates facilities including conducting licensure and relicensure reviews. His role in this proceeding was to review Mr. Newton's findings and determine whether he concurred that the licensure renewal should be denied. He determined that the licensure renewal of the Hoffman facility should be denied based on an intentional or negligent act affecting the health, safety and welfare of adult family home care residents.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Sections 120.569 and 120.57, Florida Statutes.

10. The Administrative Complaint seeks denial of the renewal of the adult family care home license held by Respondent. The burden of proof in this proceeding is on the Agency. Because of the proposed denial of licensure renewal, the Agency is required to prove the allegations by clear and convincing evidence. Coke v. Department of Children and Family

    Services, 704 So. 2d 726 (5th DCA 1998); Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

11. Section 400.6196(1)(a), Florida Statutes, reads in pertinent part as follows:

    400.6196 Violations; penalties.--

    
    

    1. In addition to any other liability or penalty provided by law, the agency may impose a civil penalty on a provider according to the following classification:

       
       

    2. Class I violations are those conditions or practices related to the operation and maintenance of an adult family-care home or to the care of residents which the agency determines present an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice that constitutes a class I violation must be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency,

       is required for correction. A class I deficiency is subject to an administrative fine in an amount not less than $500 and not exceeding $1,000 for each violation. A fine may be levied notwithstanding the correction of the deficiency.

       
       

12. Section 400.628, Florida Statutes, reads in pertinent part as follows:

    400.628 Residents' bill of rights.--

    
    

    1. A resident of an adult family-care home may not be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the State Constitution, or the Constitution of the United States solely by reason of status as a resident of the home. Each resident has the right to:

       
       

       1. Live in a safe and decent living environment, free from abuse and neglect.

          
          

       2. Be treated with consideration and respect and with due recognition of personal dignity, individuality, and privacy.

    
    

13. Rule 58A-14.010, Florida Administrative Code, reads in pertinent part as follows:

    1. GENERAL REQUIREMENTS.

       
       

       (a) The provider shall cooperate with agency personnel during surveys or inspections, complaint investigations, implementation of correction plans, license application and renewal procedures, and other activities necessary to ensure compliance and part VII of chapter 400, F.S., and this rule chapter.

       
       

       * * *

       (3) COMPLAINT INVESTIGATIONS.

       
       

       (a) The agency shall investigate any complaints regarding alleged practices in an AFCH that threaten the health, safety, or welfare of residents and shall notify the provider of the nature of the complaint, the results of the investigation, and any proposed action or sanction.

       
       

14. Rule 58A-14.007, Florida Administrative Code, reads in pertinent part as follows:

    58A-14.007 Standards and Practices for Care and Services.

    
    

    The adult family-care home provider shall ensure the provision of the following in accordance with part VII of chapter 400, F.S., this rule chapter, and residency agreement:

    
    

    * * *

    
    

    (2) SUPERVISION

    
    

    (a) The AFCH provider shall provide general supervision which includes being aware of the resident's general whereabouts and well- being while the resident is on the premises of the AFCH in order to ensure the resident's safety and security and reminding the resident of any important tasks or activities, including appointments, as needed by the resident. The provider is responsible for determining and providing adequate supervision; however, under no circumstances shall a resident be left unattended for more than 2 hours.

    
    

    * * *

    (4) FOOD SERVICE.

    
    

    1. For residents not routinely absent from the home for a day program or other purpose, at least 3 meals shall be prepared and served in the home where the resident lives during each 24 hour period. Beverages and nutritious snacks shall be made available between meals.

       
       

       * * *

       
       

       (6) ADDITIONAL SERVICES. The adult family- care home provider shall also ensure the provision of the following:

       
       

       * * *

       
       

    2. Clothing that is in good repair, consistent with general standards of dress in the community, and appropriate for the season.

    
    

15. The actions of Respondent of leaving Resident 1 in the van constitutes a violation of Section 400.628(1)(a) and (b), Florida Statutes, in that Resident 1 was not in a safe environment, was not free from neglect, and was not treated with due recognition of personal dignity.

16. Respondent's lack of cooperation with Mr. Newton when he was conducting the complaint investigation constitutes a violation of Rule 58A-14.010(1)(a), Florida Administrative Code.

17. Respondent's actions regarding Resident 1 on January 1, 2001, constitute a violation of Rule 58A- 14.007(2)(a), Florida Administrative Code, in that Respondent did not provide adequate supervision for Resident 1 while

    Resident 1 was left in the van. Regarding other violations of Rule 58A-14.007(2)(a), Florida Administrative Code, the Administrative Complaint also alleges that Resident 1 was left in the van for four hours and that Resident 2 was left in the AFCH for 10 days while Respondent and Resident 1 were out-of- town thus violating the provision regarding residents left unattended for more than two hours. However, the evidence presented regarding these allegations was not competent to support a finding of fact as contemplated by Section 120.57(1)(c), Florida Statutes.

18. The Administrative Complaint alleged that Resident 2 was left alone in the AFCH for 10 days without proper food in violation of Rule 58A-14.007(4)(a), Florida Administrative Code. Petitioner has not met its burden of proof regarding this allegation in that the evidence presented regarding this allegation was not competent to support a finding of fact as contemplated by Section 120.57(1)(c), Florida Statutes.

19. Respondent's actions regarding Resident 1 on January 1, 2001, constitutes a violation of Rule 58A- 14.007(6)(b), Florida Administrative Code, in that Resident 1

    was left in the van wearing a nightgown and a coat which was not appropriate on a cold, winter night.

20. Section 400.6194(2), Florida Statutes, authorizes the agency to deny, revoke or suspend a license for an intentional or negligent act materially affecting the health, safety, or welfare of residents. Respondent's actions on January 1, 2001, materially affected the health, safety and welfare of

    Resident 1. Accordingly, the agency's decision to deny the renewal of Respondent's license is appropriate.

21. Respondent's actions regarding Resident 1 on

January 1, 2001, constitute a Class I violation as contemplated by Section 400.6196(1)(a), Florida Statutes. While this statute is referenced in the Administrative Complaint, the agency does not seek any monetary penalty in its Administrative Complaint or its Proposed Recommended Order and, in light of the denial of licensure renewal, a fine is not appropriate.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED:

That the Agency for Health Care Administration enter a final order finding that Respondent violated Section 400.628(1), Florida Statutes, and Rules 58A-14.010(1)(a) and 58A- 14.007(2)(a) and (6)(b), Florida Administrative Code, and deny Respondent's renewal of the license to operate an Adult Family Care Home.

DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida.

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2002.

COPIES FURNISHED:

Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Mail Stop No. 3

Tallahassee, Florida 32308-5403

Frieda Hoffman 5093 Okaloosa Lane

Crestview, Florida 32539

Aaron B. Wentz, Esquire No. 4 11th Avenue, Suite 2

Shalimar, Florida 32579

Diane Grubbs, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-002711

Orders for Case No: 01-002711