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I'd/CA

STATE OF FLORIDA A GE N C Y CLERK

AGENCY FOR HEALTH CARE ADMINISTRATUOO, HAR -6 A 9: 51

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINIST RATION,

Petitioner,

V.

DOAH CASE NO. 08-5174 AHCA NO. 2008000866

RENDITION NO.: AHCA-09- \ () l -FOF-OLC

WILDSPRING ADULT CARE CENTER, INC. d/b/a WILDSPRING ,

Respondent.

I

FINAL ORDER

This cause was referred to the Division of Administrative Hearings where the assigned Administrative Law Judge (ALJ), Daniel Manry, conducted a formal administrative hearing. At issue in this case is whether Respondent failed to document elopement drills for facility staff in violation of section 429.41(1)(a)3., Florida Statutes (2008), and, if so, whether Petitioner should impose a $500 fine for the violation. The Recommended Order entered on January 23, 2009, is attached to this Final Order and incorporated herein by reference.

RULING ON EXCEPTIONS

Neither party filed exceptions to the Recommended Order.

FINDINGS OF FACT

The Agency adopts the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Agency adopts the conclusions of law set forth in the Recommended Order.

Filed March 6, 2009 12:28 PM Division of Administrative Hearings.

ORDER

Based upon the foregoing, the Agency's imposition of a $500 fine for one Class III violation is hereby upheld. The parties shall govern themselves accordingly.

Unless payment has already been made, Respondent shall make full payment of the

$500 fine within 30 days of the filing of this Final Order. The payment shall be made by check payable to Agency for Health Care Administration, and shall be mailed to the Agency for Health Care Administration, Attn. Revenue Management Unit, Office of Finance and Accounting, 2727 Mahan Drive, Fort Knox Building 2, Mail Stop 14, Tallahassee, FL 32308.

DONE and ORDERED this _£'day of , 2009, in Tallahassee, Florida.

HO ,

AGENC EALTH CA DMINIS

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY, ALONG WITH THE FILING FEE 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 THE RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. or interoffice mail to the persons named below on this 6- ay of

/o/ ,2009.

RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3

Tallahassee, FL 32308

(850) 922-5873

COPIES FURNISHED TO:

Honorable Daniel Manry Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

James H. Harris, Esquire

Agency for Health Care Administration 525 Mirror Lake Drive North

The Sebring Building, Suite 330H St. Petersburg, Florida 33701

Dorothya Pringle

Wildspring Adult Care Center, Inc. 2619 Lake Josephine Drive Sebring, Florida 33875

Jan Mills

Facilities Intake Unit

Revenue Management Unit Finance & Accounting

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs. Case No. 08-5174

WILDSPRING ADULT CARE CENTER, INC., d/b/a WILDSPRING,

Respondent.

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on December 18, 2008, in Sebring, Florida.

APPEARANCES

For Petitioner: James H. Harris, Esquire

Agency for Health Care Administration Sebring Building, No. 330H

525 Mirror Lake Drive North St. Petersburg, Florida 33701

For Respondent: Dorothya Pringle, prose

Wildspring Adult Care Center, Inc. d/b/a Wildspring

2619 Lake Josephine Drive Sebring, Florida 33875

STATEMENT OF THE ISSUES

The issues are whether Respondent failed to document resident elopement drills for facility staff in violation of

Subsection 429.41(1)(a)3., Florida Statutes (2008),1 and, if so, whether Petitioner should impose a civil penalty of $500.00.

PRELIMINARY STATEMENT

On April 8, 2008, Petitioner issued a one-count Amended Administrative Complaint against Respondent. Respondent timely requested an informal hearing. The hearing officer for the agency found that there were material issues of fact and issued an Order Relinquishing Jurisdiction to DOAH. Petitioner moved. to amend the Amended Administrative Complaint, the motion was granted, and Petitioner filed its Second Amended Administrative Complaint, still containing only one count with no change in the factual allegations.

At the final hearing, Petitioner presented the testimony of two witnesses, submitted three exhibits for admission into evidence, and later withdrew one of its three exhibits.

Respondent presented the testimony of one witness and submitted two exhibits.

The identity of the witnesses and exhibits and the rulings regarding each are reported in the one-volume Transcript of the hearing filed with DOAH on January 6, 2009. Petitioner timely filed its Proposed Recommended Order (PRO) on January 9, 2009. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for licensing and regulating assisted living facilities (ALFs) in Florida. Respondent is a licensed ALF in Florida identified in the record as Wildspring Adult Care Center, Inc., doing business as Wildspring.

2. A surveyor for Petitioner conducted a survey of Wildspring on October 5, 2007. The caregiver at Wildspring at the time of the survey was a person identified in the record as

   J. Westergaard.

   
   

3. The caregiver, in relevant part, was unable to locate any record of facility staff drills concerning resident elopement. The caregiver contacted the administrator of Wildspring. The administrator came to the facility, but was not able to locate and was unable to produce any record of facility staff drills during 2007.

4. The surveyor cited Wildspring for a Class III deficiency, explained the deficiency to the administrator, and scheduled a mandatory correction date of No ember 5, 2007. Petitioner did not conduct a follow-up survey until December 28, 2007. The Wildspring caregiver at the time of the second survey was Simon Brown.

5. The caregiver at the time of the follow-up survey was unable to locate the Wildspring record of facility staff drills

   on resident elopement conducted during the year. The caregiver admitted to the surveyor that Wildspring had not conducted any resident elopement drill during the year.

6. At the conclusion of the second survey, the surveyor cited Wildspring for a Class III deficiency and scheduled a mandatory correction date. At the time, Wildspring had eight residents at the facility.

   CONCLUSIONS OF LAW

   
   

7. DOAH has jurisdiction of the subject matter and the parties to this proceeding. §§ 120.569, 120.57(1), 408.802(14), 429.07, and 429.14. DOAH provided the parties with adequate notice of the final hearing.

8. Petitioner has the burden of proof in this proceeding.

   
   

   Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Second Amended Administrative Complaint and that the proposed penalty is reasonable. Department of Banking and Finance v. Osborne Stern

   & Co., 670 So. 2d 932 (Fla. 1996).

   
   

9. Petitioner showed by clear and convincing evidence that Respondent committed a Class III deficiency by failing to document elopement dri.lls for facility staff. The proposed penalty of a $500.00 administrative fine is reasonable. Subsection 429.19(1)(c) requires Petitioner to impose a fine of not less than $500.00 for a Class III deficiency.

10. Subsection 429.41(1} authorizes Petitioner to promulgate rules for the enforcement of legislative standards, which, in Subsection 429.41(1} (a}3., require Respondent to document resident elopement drills. The statutory standards are promulgated in Florida Administrative Code Rules SSA-

s. 0182(8)(c} and 58A-5.024.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding that Respondent committed one State Class III violation and imposing an administrative fine of $500.00.

DONE AND ENTERED this 23rd day of January, 2009, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850} 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2009.

ENDNOTE

11 References to subsections, sections, and chapters are to Florida Statutes {2008), unless otherwise stated.

COPIES FURNISHED:

James H. Harris, Esquire

Agency for Health Care Administration Sebring Building, No. 330H

525 Mirror Lake Drive North St. Petersburg, Florida 33701

Dorothya Pringle

Wildspring Adult Care Center, Inc. d/b/a Wildspring

2619 Lake Josephine Drive Sebring, Florida 33875

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Justin Senior, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Holly Benson, Secretary

Agency for Health Care Administration Fort Knox Building, Suite 3116

2727 Mahan Drive

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: 08-005174

Orders for Case No: 08-005174