STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 10-10003

)

THE MUNE GROUP, INC., d/b/a )

MMUNNE CENTER, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on May 6, 2011, by webcast at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Alba M. Rodriguez, Esquire

Agency for Health Care Administration 8333 Northwest 53rd Street, Suite 300

Doral, Florida 33166

For Respondent: Sean M. Ellsworth, Esquire

Ellsworth Law Firm

1501 Collins Avenue, Suite 208 Miami Beach, Florida 33139

STATEMENT OF THE ISSUE

Whether Respondent committed the Class "II" violation alleged in Counts I and II of the Amended Administrative Complaint and, if so, what sanction(s) should be imposed.

PRELIMINARY STATEMENT

On or about July 8, 2010, Petitioner issued a two-count Administrative Complaint against Respondent, the operator of a licensed assisted living facility located at 17250 Southwest 137th Avenue in Miami, Florida (Facility). Respondent thereafter requested a "formal administrative hearing" on the allegations made in the Administrative Complaint. The matter was referred to DOAH on November 1, 2010, for the assignment of an administrative law judge to conduct the hearing Respondent had requested.

On March 23, 2011, Petitioner filed a motion seeking permission to file an amended administrative complaint. On March 30, 2011, the undersigned granted the motion and advised that the Amended Administrative Complaint Petitioner had appended to the motion would "be treated as the charging instrument in th[is] case."

The Amended Administrative Complaint contained two counts.

In the first count (Count I), Petitioner alleged that, after incidents on March 21, 2010, and May 2, 2010, involving a resident of the Facility (Resident #1), Respondent "should have

known that Resident #1 posed a danger to Resident #5 [another resident at the Facility, which whom Resident #1 had an altercation on May 10, 2010], and the other residents residing in the [F]acility and failed to provide personal supervision as appropriate for both Resident #1 and Resident #5, and failed to provide a safe and decent living environment free from abuse and neglect for its residents," contrary to "[s]ection 429.28(1)(a), Florida Statutes (2009), and [r]ule 58A-5.0182(1)(b), Florida Administrative Code." In failing to provide these things, Petitioner further alleged (in Count I of the Amended Administrative Complaint), Respondent committed a "Class II violation pursuant to [s]ection 429.19(1),(2)(b), Florida Statutes (2009), which warrants an assessed fine of $1,000.00 according to [s]ection 408.813(2)(b), Florida Statutes (2009)." In the second count of the Amended Administrative Complaint (Count II), Petitioner alleged that Respondent's commission of the Class "II" violation described in Count I constituted "grounds," pursuant to the terms of a Settlement Agreement2 into which Respondent and Petitioner had entered in 2008, for revocation of Respondent's license to operate the Facility.

Petitioner further advised in its Amended Administrative Complaint that it intended to "assess[] a survey fee in the amount of $500.00 to cover the cost of conducting [its] initial complaint investigation[]."

As noted above, the final hearing in this case was held before the undersigned on May 6, 2011. One witness, Neil Walker, an employee of Petitioner's, testified at the hearing.3 In addition to Mr. Walker's testimony, five exhibits (Petitioner's Exhibits 1A-1, 1A-2, 1A-3, 1A-4, and 1A-5) were offered and received into evidence, without objection.4

At the close of the taking of evidence, the undersigned established a deadline (10 days from the date of the filing of the hearing transcript with DOAH) for the filing of proposed recommended orders.

The Transcript of the final hearing (consisting of one volume) was filed with DOAH on May 17, 2011. Petitioner and Respondent both timely filed their Proposed Recommended Orders

on May 27, 2011.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. The Facility is a 160-bed assisted living facility operated by Respondent and licensed by Petitioner.

2. Resident #1 was admitted to the Facility on or about December 16, 2009, and was a resident of the Facility at all times material to the instant case, including March 21, 2010, May 2, 2010, and May 10, 2010.

   
   

3. The "Resident Health Assessment for Assisted Living Facilities" form (Health Form) that was completed in conjunction with Resident #1's admission to the Facility reflected that Resident #1 had a history of alcohol abuse and depression and that, in the opinion of the "examiner" filling out the form, while "[d]aily [o]versight" of Resident #1's "well being and whereabouts" was needed, Resident #1 did not "pose a danger to [him]self or others."5

4. On March 21, 2010, at around 6:00 p.m., Resident #1 was involved in an incident at the Facility (March 21 Incident).

5. The March 21 Incident was accurately documented (albeit in a manner that was vague and lacking in detail) in the following entry made by Facility staff on the Observation Log maintained at the Facility for Resident #1 (Resident #1's Observation Log):6

   Resident [#1] is disoriented at this time and aggressive.[7] He has trouble with other resident [C.].[8] [Resident #1] is very altered and disoriented. I called the doctor for request and sent to the Hospital. I notified to his friend for let to know about the situation.[9]

   The aftermath of this incident was accurately documented in the following March 21, 2010, 7:00 p.m., entry made by Facility staff on Resident #1's Observation Log:

   I reported to the police that [Resident #1] is very aggressive and confused. He refused to go to the Hospital.

   
   

   These two entries made by Facility staff on Resident #1's Observation Log constitute the only record evidence concerning the March 21 Incident and its aftermath.10

6. The record evidence is silent as to the extent to which Resident #1 and the other residents of the Facility, including the one involved in the March 21 Incident, were being supervised by Facility staff at the time of the March 21 Incident.

7. On May 2, 2010, Resident #1 was involved in an altercation with another resident of the Facility, Resident #5 (May 2 Incident).

8. The Health Form that was completed in conjunction with Resident #5's admission to the Facility reflected that he was a five-foot, eight-inch, 289 pound man, with a history of chronic obstructive pulmonary disease, coronary artery disease, atherosclerotic heart disease, diabetes mellitus, morbid obesity, dilated cardiomyopathy, and kidney failure.

9. The May 2 Incident and its aftermath were accurately documented by Facility staff by an entry written in Spanish on the Facility's Daily Communication Log for that date (May 2 Daily Communication Log). The following is the English translation of that entry:11

   At midnight [Resident #5], [Resident #1] and [E. S.] were in the nurses' station happily chatting. All of a sudden, [Resident #1] verbally insulted [Resident #5] without any

   
   

   reason whatsoever.[12] Offended, [Resident #5] got up from his chair,[13] and [Resident #1] pushed his chest.[14]

   
   

   [Resident #5] called the police--while the police were on their way, [Resident #5] thought about what had happened and did not want to do anything improper, but at the same time he was worried about his safety because he had heard that [Resident #1] has a knife in his room.[15]

   
   

   [Resident #5] asked my opinion and I suggested that he tell the office about it, that you would resolve the problem in the best possible way and that he shouldn't file a report against [Resident #1], and [Resident #5] made his own decision to not have the police take [Resident #1] away.

   
   

   [Resident #1] had not always behaved this way, he was not acting normally. Ms. [E.] disappeared for over half an hour and since I know that she and Mr. [R.] are good friends I asked him about her. [Resident #1] heard me and made a show of the matter, he took charge of the matter as if he were the boss. Without my realizing it, he sent [E.] outside to look for [Ms. E.] and there is no reason for him to do my job.

   
   

   [Ms. E.] was in the back part of Munne accompanied by Mr. [N.]. I had already gone back there in the dark calling out to

   [Ms. E.] by name and [she] heard me but did not answer that she was there. If she had answered me I wouldn't have worried any more. When I looked at her I asked her: Did you hear that I was looking for you?

   And she answered that she had.

   
   

   The problem is that [Resident #1] is taking on a role that does not correspond to him, on top of a poor attitude; there was no need for these incidents.

   
   

   [I was] [t]rying to keep the other residents from realizing what was going on so that they would not get riled up and to avoid an even bigger commotion.

   
   

   This entry on the May 2 Daily Communication Log constitutes the only record evidence concerning the May 2 Incident.

10. The record evidence is silent as to the extent to which Resident #1, Resident #5, and the other residents of the Facility were being supervised by Facility staff at the time of the May 2 Incident.

11. On May 10, 2010, while he still was a resident of the Facility, Resident #5 was "punched"16 (May 10 Incident) and, as a result, sustained an injury (a two-centimeter laceration above his right eyebrow) for which he was taken to Larkin Community Hospital's emergency room for treatment. After receiving five stitches to close the laceration, he was discharged from the hospital.

12. Other than the "[h]ospital [r]ecord[]" entry17 memorializing the statement made by Resident #5 to emergency room staff concerning his having been "punched" by an unidentified assailant,18 there is no record evidence as to what happened during the May 10 Incident.

13. The record evidence is silent as to the extent to which Resident #5 and the other residents of the Facility,

    
    

    including Resident #1, were being supervised by Facility staff at the time of the May 10 Incident.

    CONCLUSIONS OF LAW

    
    

14. DOAH has jurisdiction over the subject matter of the instant proceeding and of the parties hereto pursuant to chapter

    120 Florida Statues.

    
    

15. Chapter 429, Part I, Florida Statutes, contains the "Assisted Living Facilities Act." § 429.01(1). Underlying the Act, among other things, is the Legislature's recognition, expressed in section 429.10(2), "that assisted living facilities are an important part of the continuum of long-term care in the state" and that, "[i]n support of the goal of aging in

    place, . . . assisted living facilities should be operated and regulated as residential environments with supportive services and not as medical or nursing facilities."

16. The Act provides for the licensure of assisted living facilities (ALFs) by Petitioner (with exceptions not pertinent here). §§ 429.04 and 429.07. Furthermore, the Act authorizes Petitioner to impose administrative penalties (including license suspension and revocation and the payment of fines and survey fees) on the operators of licensed ALFs who do not comply with statutory and/or rule provisions regulating the operation of their facilities. §§ 429.14 and 429.19.

    
    

17. Among these statutory and rule provisions are section 429.28(1)(a) and Florida Administrative Code Rule 58A-5.0182(1), which, at all times material to the instant case, have provided as follows:

    § 429.28 Resident bill of rights

    
    

    1. No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to:

       
       

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

          
          

          58A-5.0182 Resident Care Standards.

          
          

          An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility.

          
          

          1. SUPERVISION.[19] Facilities shall offer personal supervision, as appropriate for each resident, including the following:

             
             

             1. Monitor the quantity and quality of resident diets in accordance with Rule 58A- 5.020, F.A.C.

                
                

             2. Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the individual.

                
                

             3. General awareness of the resident's whereabouts. The resident may travel independently in the community.

                
                

             4. Contacting the resident's health care provider and other appropriate party such as the resident's family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident's family, guardian, health care surrogate, or case manager if the resident is discharged or moves out.

                
                

             5. A written record, updated as needed, of any significant changes as defined in subsection 58A-5.0131(33), F.A.C., any illnesses which resulted in medical attention, major incidents, changes in the method of medication administration, or other changes which resulted in the provision of additional services.

                
                

18. The right, secured by section 429.28(1)(a), of an ALF resident to "[l]ive in a safe and decent living environment, free from abuse and neglect," gives rise to a corresponding duty on the part of the operator of the ALF in which the resident resides to exercise reasonable care to provide such an environment. While "abuse" and neglect" are not defined in chapter 429, the meaning of these terms, as they are used in section 429.28(1)(a), may be ascertained from the definitional provisions of a related chapter, chapter 415,20 specifically section 415.102(1) and (16), which provide as follows:

    1. "Abuse" means any willful act or threatened act by a relative, caregiver,[21] or household member which causes or is likely to cause significant impairment to a vulnerable adult's physical, mental, or emotional health. Abuse includes acts and omissions.

       
       

       (16) "Neglect" means the failure or omission on the part of the caregiver or vulnerable adult to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, which a prudent person would consider essential for the well-being of a vulnerable adult. The term "neglect" also means the failure of a caregiver or vulnerable adult to make a reasonable effort to protect a vulnerable adult from abuse, neglect, or exploitation by others. "Neglect" is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.

       
       

       See State v. Hagan, 387 So. 2d 943, 945 (Fla. 1980)("In the absence of a statutory definition, resort may be had to case law or related statutory provisions which define the

       term ").

       
       

19. Because the violation of section 429.28(1)(a) and rule 58A-5.0182(1) have penal consequences, they must be strictly construed, with any reasonable doubts as to their meaning being resolved in favor of the ALF operator. See Camejo v. Dep't of

    Bus. & Prof'l Reg., 812 So. 2d 583, 583-84 (Fla.3d DCA 2002)("'Statutes such as those at issue authorizing the imposition of discipline upon licensed contractors are in the nature of penal statutes, which should be strictly construed.'"); and McClung v. Crim. Just. Stds. & Training

    
    

    Comm'n, 458 So. 2d 887, 888 (Fla. 5th DCA 1984) ("[W]here a statute provides for revocation of a license the grounds must be strictly construed because the statute is penal in nature. No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor of the licensee."). So construed, neither section 429.28(1)(a) nor rule 58A-5.0182(1) makes an ALF operator strictly liable, regardless of fault, whenever there is a resident-on-resident altercation at the ALF; on the contrary, liability arises only if the operator has deviated from the applicable objective standard of conduct or care. See Brother J., Inc. v. Dep't of Bus. & Prof'l Reg., Div. of Alcoholic Beverages. & Tobacco, 962 So. 2d 1037, 1038 (Fla. 1st DCA 2007)("[A] license can be suspended or revoked only on the basis of the licensee's own misconduct . . . ."); K. M. T. v. Dep't of HRS, 608 So. 2d 865, 873 (Fla. 1st DCA 1992)("Lacking proof of an objective standard, the hearing officer relied on 'the common sense of an ordinarily prudent person, which is the collective wisdom of our shared human experience,' and concluded that 'no restorative dining room patient should be there [sic] left alone.' The purely subjective standard the hearing officer created and applied in this case does not constitute a sufficient standard for determining whether an individual's acts or omissions constitute

    
    

    neglect within the meaning of [chapter 415]. Rather, the acts or omissions must be judged against an objective standard, which may be defined by rule or by proof of general acceptance within the nursing home industry."); and Pic N' Save, Inc. v. Dep't of Bus. Reg., Div. of Alcoholic Beverages & Tobacco, 601 So. 2d 245, 250, 256 (Fla. 1st DCA 1992)("[W]hile an employee may violate the beverage law in making illegal sales of alcoholic beverages to minors, the licensee's culpable responsibility therefor is measured in terms of its own intentional wrongdoing or its negligence and lack of diligence in training and supervising its employees regarding illegal sales. This limitation on the licensee's liability is consistent with the notion, also long recognized by the courts of this state, that one's license to engage in an occupation is not to be taken away except for misconduct personal to the licensee. . . .

    Proof . . . of a licensee'[s] negligent training or lack of diligence in supervising its employees requires more than merely proving that three illegal sales occurred on the licensee's premises during a six-month period. The imposition of personal responsibility on the licensee for illegal sales by its employees requires proof of minimum standards of conduct, either by adopted rules, communicated agency policy, or expert testimony, against which the licensee's alleged misconduct can be judged. Otherwise, determining when a licensee is to be held

    
    

    responsible for employee misconduct will become simply a matter of personal opinion held by the hearing officer or the Division on a case-by-case basis without any firm standard for uniformity in application or enforcement.").

20. In determining what action to take against a noncompliant ALF operator, Petitioner must, pursuant to section 429.19(2), "classif[y]" the operator's violation "according to [its] nature . . . and the gravity of its probable effect on facility residents" as either a Class "I," "II," "III," or "IV" violation, in accordance with section 408.813(2), which provides as follows:

    Violations of this part, authorizing statutes [such as those in the Act], or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients. The scope of a violation may be cited as an isolated, patterned, or widespread deficiency. An isolated deficiency is a deficiency affecting one or a very limited number of clients, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency in which more than a very limited number of clients are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same client or clients have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the provider. A widespread deficiency is a deficiency in which the problems causing the

    
    

    deficiency are pervasive in the provider or represent systemic failure that has affected or has the potential to affect a large portion of the provider's clients. This subsection does not affect the legislative determination of the amount of a fine imposed under authorizing statutes.

    Violations shall be classified on the written notice as follows:

    
    

    1. Class "I" violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines present an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. The agency shall impose an administrative fine as provided by law for a cited class I violation. A fine shall be levied notwithstanding the correction of the violation.

       
       

    2. Class "II" violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A fine shall be levied notwithstanding the correction of the violation.

       
       

    3. Class "III" violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines indirectly or potentially threaten the physical or emotional health,

       
       

       safety, or security of clients, other than class I or class II violations. The agency shall impose an administrative fine as provided in this section for a cited class III violation. A citation for a class III violation must specify the time within which the violation is required to be corrected.

       If a class III violation is corrected within the time specified, a fine may not be imposed.

       
       

    4. Class "IV" violations are those conditions or occurrences related to the operation and maintenance of a provider or to required reports, forms, or documents that do not have the potential of negatively affecting clients. These violations are of a type that the agency determines do not threaten the health, safety, or security of clients. The agency shall impose an administrative fine as provided in this section for a cited class IV violation. A citation for a class IV violation must specify the time within which the violation is required to be corrected. If a class IV violation is corrected within the time specified, a fine may not be imposed.

    
    

21. The classification of the violation dictates, among other things, the amount of the administrative fine the violator must pay: "not less than $5,000 and not exceeding $10,000" for a Class "I" violation; "not less than $1,000 and not exceeding

    $5,000" for a Class "II" violation"; "not less than $500 and not exceeding $1,000" for a Class "III" violation; and "not less than $100 and not exceeding $200" for a Class "IV" violation."

    § 429.19(2)(a)-(d). "[I]n fixing the [precise] amount of the fine, the agency [must] consider the following factors:

    
    

    1. The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.

       
       

    2. Actions taken by the owner or administrator to correct violations.

       
       

    3. Any previous violations.

       
       

    4. The financial benefit to the facility of committing or continuing the violation.

       
       

    5. The licensed capacity of the facility.

    
    

    § 429.19(3).

    
    

22. Before sanctioning a noncompliant ALF operator, Petitioner must give the operator reasonable written notice of the charges and an adequate opportunity to request an administrative hearing pursuant to chapter 120. See Florida League of Cities v. Admin. Comm'n, 586 So. 2d 397, 413 (Fla. 1st DCA 1991)("Until proceedings are had satisfying section 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person.").

23. Where "there is a disputed issue of material fact which formed the basis for the proposed final action [to impose the sanction]," the operator is entitled to an evidentiary hearing held in accordance with sections 120.569 and 120.57(1).

    
    

    Florida Sugar Cane League v. South Florida Water Mgmt. Dist., 617 So. 2d 1065, 1066 (Fla. 4th DCA 1993).

24. At the hearing, Petitioner bears the burden of proving, by clear and convincing evidence, that the alleged violation occurred and that it was of such nature and scope to warrant the sanction Petitioner proposes to impose. See Dep't

    of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996)("[A]n

    administrative fine deprives the person fined of substantial rights in property. Administrative fines . . . are generally punitive in nature. . . . Because the imposition of administrative fines . . . [is] penal in nature and implicate[s] significant property rights, the extension of the clear and convincing evidence standard to justify the imposition of such a fine is warranted."); Diaz de la Portilla v. Fla. Elect. Comm'n, 857 So. 2d 913, 917 (Fla. 3d DCA 2003)("We agree with the administrative law judge that the standard of proof in a case seeking fines under chapter 106 is clear and convincing evidence."); Pic N' Save, 601 So. 2d at 249 ("It is now settled in Florida that a business license, whether held by an individual or a corporate entity, is subject to suspension or revocation only upon proof by clear and convincing evidence of the alleged violations."); and section 120.57(1)(j) ("Findings

    
    

    of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings ").

25. Clear and convincing evidence is an "intermediate standard," "requir[ing] more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). For proof to be considered "'clear and convincing' . . .

    the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983); see also In re Adoption of Baby E. A. W., 658 So. 2d 961, 967 (Fla. 1995)("The evidence [in order to be clear and convincing] must be sufficient to convince the trier of fact without hesitancy."). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

    
    

26. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegations of wrongdoing made in the charging instrument. Due process prohibits an agency from taking penal action against a licensee based on matters (either factual or legal) not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A physician may not be disciplined for an offense not charged in the complaint."); Marcelin v. Dep't of Bus. & Prof'l Reg., 753 So. 2d 745, 746-747 (Fla. 3d DCA 2000)("Marcelin first contends that the administrative law judge found that he had committed three violations which were not alleged in the administrative complaint. This point is well taken. . . . We strike these violations because they are outside the administrative complaint."); Dep't of Rev. v.

    Vanjaria Enters., 675 So. 2d 252, 254 (Fla. 5th DCA 1996)("[T]the issue must be treated as though it had been raised in the pleadings because the parties tried the issue by consent."); and Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated.").

    
    

27. The charging instrument in the instant case, the Amended Administrative Complaint, contains two counts, each alleging the same misconduct: Respondent's commission of a Class "II" violation of section 429.28(1)(a) and rule 58A- 5.0182(1)(b), by "fail[ing] to provide personal supervision as appropriate for both Resident #1 and Resident #5" and thereby "fail[ing] to provide a safe and decent living environment free from abuse and neglect for its Residents." Count One alleges that such misconduct warrants the imposition of a $1,000.00 fine, in accordance with the provisions section 429.19. Count Two alleges that such misconduct warrants the revocation of Respondent's license, in accordance with the terms of a 2008 settlement agreement between Petitioner and Respondent. The Amended Administrative Complaint further alleges that, because of Respondent's commission of this Class "II" violation, a survey fee of $500.00 should be assessed against Respondent pursuant to section 429.19(7).22

28. To meet its burden of proof, Petitioner needed to do more than to simply show that the altercations described in the Amended Administrative Complaint actually took place. It had to establish what supervision, if any, the residents in question were being provided at the time of Respondent's alleged misconduct, and what the applicable objective standard is for measuring the reasonableness or "appropriate[ness]" of that

supervision. The record evidence, however, sheds no light on, much less clearly and convincingly establishes, either of these matters, leaving one to speculate as to whether Respondent was derelict in meeting its obligations under section 429.28(1)(a) and rule 58A-5.0182(1)(b), as alleged in the Amended Administrative Complaint. Such being the case, no violation can be found in the instant case, and the Amended Administrative Complaint must be dismissed.

RECOMMENDATION

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

RECOMMENDED that the Agency for Health Care Administration issue a Final Order dismissing the Amended Administrative Complaint.

DONE AND ENTERED this 9th day of June, 2011, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 9th day of June, 2011.

ENDNOTES

1 Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2010).

2 Appended to the Amended Administrative Complaint were copies of the Settlement Agreement and Petitioner's October 3, 2008, Final Order "approv[ing] and adopt[ing]" the Settlement Agreement. Paragraph (4)(e) of the Settlement Agreement, as noted in paragraph 30 of the original Administrative Complaint and paragraph 26 of the Amended Administrative Complaint, provides as follows:

Should Respondent be cited for a Class I, Class II, or two (2) or more uncorrected Class III deficient practices on any survey for a period of four (4) years from the date of the Final Order, Respondent stipulates that said deficient practice(s) will, if proven, constitute grounds for the Agency to revoke Respondent's licensure in addition to and as a supplement to any provision of law authorizing an action for revocation of licensure.

A subsequent paragraph of the Settlement Agreement not specifically referenced in the body of either the original Administrative Complaint or the Amended Administrative Complaint, paragraph 6, deals with enforcement of "the terms of this Agreement or the Final Order." It provides as follows:

Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie solely in the Circuit Court in Leon County, Florida.

Requiring that any action to enforce the terms of the Settlement Agreement be brought in circuit court is consistent with the well-established principle that "courts rather than administrative bodies construe contracts," including settlement agreements. Point Mgmt., Inc. v. Dep't of Bus. Reg., Div. of Florida Land Sales & Condos., 449 So. 2d 306, 307 (Fla. 4th DCA

1984); see also Fleischman v. Dep't of Prof'l Reg., 441 So. 2d 1121, 1122-1123 (Fla. 3d DCA 1983)("It is well-settled, on the one hand, that, absent clear legislative authorization to the contrary, violations of mere contractual rights are concerns only of the courts, and may not be enforced by disciplinary action undertaken by a regulatory agency like the real estate commission.").

3 Mr. Walker's testimony revealed that he had no personal knowledge of any of the three alleged incidents--the March 21, 2010, incident, the May 2, 2010, incident, and the May 10, 2010, incident--underpinning the Amended Administrative Complaint.

4 These five exhibits were (as described on Petitioner's Exhibit List) as follows:

1A-1 Resident Observation Log for Resident #1 from date of admission through date of survey exit.

1A-2 Copy of Daily Communication Log form dated 5/2/10 memorializing incident of 5/2/10 translated to English with translator certification.

1A-3 Copy of Health Assessment for Resident #1.

1A-4 Copy of Health Assessment for Resident #5.

1A-5 Copy of Larkin Hospital [r]ecords generated from Resident #5's emergency room visit of 5/10/10.

In their Joint Prehearing Stipulation, which was filed May 2, 2011, the parties stipulated that Petitioner's Exhibits 1A-1, 1A-2, and 1A-5 were "authentic," "true and accurate" records, and that Petitioner's Exhibits 1A-3 and 1A-4 were "true" and "accurate" records.

While the Settlement Agreement referenced in the Amended Administrative Complaint (as well as in the original Administrative Complaint) was not among the exhibits that were offered and received into evidence, and it was not the subject of any stipulation of fact set forth in the parties' Joint

Prehearing Stipulation, Respondent, in its petition for a "formal administrative hearing" on the original Administrative Complaint, did admit that the Settlement Agreement existed, that it had been adopted by and incorporated in Petitioner's

October 3, 2008, Final Order, and that paragraph 30 of the original Administrative Complaint accurately recited the contents of paragraph (4)(e) of the Settlement Agreement. These admissions made by Respondent obviated the need for any evidence to be presented on these matters at hearing. See Carvell v.

Kinsey, 87 So. 2d 577, 579 (Fla. 1956)("Citation of authorities is unnecessary to sustain the rule that parties-litigant are bound by the allegations of their pleadings and that admissions contained in the pleadings as between the parties themselves are accepted as facts without the necessity of supporting evidence."); and Deland v. Miller, 608 So. 2d 121, 122 (Fla. 5th DCA 1992)("The parties are bound by their pleadings. Admissions in the pleadings are accepted a[s] facts without the necessity of further proof.").

5 Pursuant to Florida Administrative Code Rule 58A-5.0181(1)(g) and (4), to be eligible to be admitted to, and remain at, an assisted living facility like the Facility, a person must "[n]ot be a danger to self or others as determined by a physician, or mental health practitioner licensed under [c]hapters 490 or 491, F.S." No allegation has been made by Petitioner that Resident #1's residency at the Facility was, at any time, in contravention of this requirement.

6 In their Joint Prehearing Stipulation, the parties stipulated that Resident #1's Observation Log is "true and accurate."

7 In what way Resident #1 was being "aggressive," the evidentiary record does not reveal.

8 What this "trouble" was that Resident #1 was having with the "other resident," the evidentiary record does not reveal.

9 This and all other record excerpts set out in this Recommended Order are verbatim recitals, except for those words that are in brackets.

10 These entries (as well as the entries made by Facility staff on the Facility's Daily Communication Log which will be discussed later) constitute "admissions," within the meaning of section 90.803(18), Florida Statutes. Notwithstanding their hearsay nature, they are sufficient, in themselves, to support a

finding of fact pursuant to section 120.57(1)(c), which provides as follows:

Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

See Scholz v. RDV Sports, 710 So. 2d 618, 628 (Fla. 5th DCA 1998)("Pursuant to this statute [section 90.813(18)], statements made by employees concerning the course and scope of their employment are admissible against the employer. This is true even in those instances where the employee's statement is not based on his personal knowledge.")(citation omitted); and Metro. Dade Cnty. v. Yearby, 580 So. 2d 186, 188-189 (Fla. 3d DCA 1991)("[I]t is well settled that an admission by a party opponent may be made in writing, as here, as well as orally; there is no requirement that a written admission by a party opponent must also qualify under some other exception to the hearsay rule in order to be admissible. . . . [A]n admission by a party opponent or his agent need not be based on the personal knowledge of the party or his agent.").

11 In their Joint Prehearing Stipulation, the parties stipulated that the May 2 Daily Communication Log is "true and accurate."

12 What Resident #1 said to Resident #5, and whether it was objectively insulting, the evidentiary record does not reveal.

13 Whether Resident #5 did so in a physically threatening manner, the evidentiary record does not reveal.

14 How hard Resident #1 pushed Resident #5, and whether the use of such force was reasonably necessary for Resident #1 to defend himself against Resident #5, the evidentiary record does not reveal.

15 The record evidence is insufficient to support a finding that Resident #1 actually did "ha[ve] a knife in his room."

16 Who "punched" Resident #5, and what the circumstances were leading up to Resident #5's being struck, the evidentiary record does not reveal.

17 In their Prehearing Stipulation, the parties stipulated that the "[h]ospital [r]ecords" containing this entry "are true and accurate."

18 This statement (which Resident #5 undisputedly made to emergency room staff, as reflected in the "true and accurate" records received into evidence as Petitioner's Exhibit 1A-5) is one that was made "for purposes of medical diagnosis or treatment" within the meaning of section 90.803(4). As such, it is sufficient, standing alone, to support a finding of fact pursuant to section 120.57(1)(c), notwithstanding its hearsay nature. See Torres-Arboledo v. State, 524 So. 2d 403, 407 (Fla. 1988)("Under section 90.803(4) of the Florida Evidence Code, statements which describe the inception or cause of an injury are admissible if they are reasonably pertinent to the diagnosis or treatment of the injury. However, so called statements of fault do not qualify. With this distinction in mind, we agree with the appellant that the statement that Lorenzo was shot was admissible because it was reasonably pertinent to the diagnosis or treatment of his wounds; but, the statement that black people tried to steal his medallion was not admissible, as it constitutes information which was not reasonably pertinent in medical treatment.")(citation omitted); and Whitehead v. State,

22 So. 3d 846, 848 (Fla. 4th DCA 2009)("The treating nurse's testimony regarding the victim's statements as to how the victim's injury occurred was admissible under the hearsay exception for statements made for the purpose of medical diagnosis or treatment.").

19 "Supervision," as that term is used in the Act, is defined in section 429.02(23) as follows:

"Supervision" means reminding residents to engage in activities of daily living and the self-administration of medication, and, when necessary, observing or providing verbal cuing to residents while they perform these activities.

20 Chapter 415 was enacted to promote the "care and protection of vulnerable adults" (defined therein as "person[s] 18 years of age or older whose ability to perform the normal activities of daily living or to provide for [their] own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging"). §§ 415.101(2) and

415.102(27); see also Tenet S. Fla. Health Sys. v. Jackson, 991 So. 2d 396, 398 (Fla. 3d DCA 2008)("Chapter 415 was enacted to protect vulnerable adults from neglect by caregivers ").

Chapter 415 is specifically mentioned in section 429.23(6), which provides: "Abuse, neglect, or exploitation [at a licensed ALF] must be reported to the Department of Children and Family Services as required under chapter 415."

21 "Caregiver," as that term is used in chapter 415, includes "employees and volunteers" of ALFs. See § 415.102(5) and (9).

22 Section 429.19(7) provides as follows:

In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility's biennial license and bed fee or

$500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s. 429.28(3)(c) to verify the correction of the violations.

COPIES FURNISHED:

Alba Rodriguez, Esquire

Agency for Health Care Administration 8333 Northwest 53rd Street, Suite 300

Doral, Florida 33166

Sean M. Ellsworth, Esquire Ellsworth Law Firm

1501 Collins Avenue, Suite 208 Miami Beach, Florida 33139

Elizabeth Dudek, Secretary

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

Tallahassee, Florida 32308-5403

Justin Senior, General Counsel

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

Tallahassee, Florida 32308-5403

Richard J. Shoop, Agency Clerk

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

Tallahassee, Florida 32308-5403

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: 10-010003

Orders for Case No: 10-010003