AGENCY FOR PERSONS WITH DISABILITIES,
License Numbers: 4951-05-GA
Petitioner, 4952-06-GA
4812-06-GA
v.
EXCELSIOR CARE, INC.,
Respondent.
/
ADMINISTRATIVE COMPLAINT
The AGENCY FOR PERSONS WITH DISABILITIES, (“Petitioner” or “Agency”),
issues this Administrative Complaint against Excelsior Care, Inc., (“Respondent”), and states the following as the basis for this complaint:
Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habilitation centers, pursuant to Section 20.197 and Chapter 393, Florida Statutes.
At all times material to this complaint, Respondent has held three group home facility licenses issued by the Agency for the following addresses:
323 49th Street N.W., Bradenton, Florida, 34209;
1308 89th Street N.W., Bradenton, Florida, 34209; and
3812 17th Avenue West, Bradenton, Florida, 34205.
The Respondent also has contracted with APD to provide the residents with Medicaid Waiver developmental disability services.
Section 393.0673(1)(a)(3), Florida Statutes, provides that the Agency may revoke a license, or impose an administrative fine if the licensee has failed to comply with the applicable requirements of Chapter 393, Florida Statutes, or the rules applicable to the licensee.
Rule 65G-2.012(8)(m), F.A.C. requires the following:
The facility shall be maintained free of infestations of insects and rodents. The facility shall have a pest control program
1
provided by maintenance personnel or by contract with a pest control agency.
On or about February 4, 2011, the Respondent executed a Settlement Agreement with the Petitioner which required, in pertinent part, the following:
1. As stated in this settlement agreement, the term “Excelsior” hereinafter refers to both Excelsior Care, Inc., and Northwest Care Centre, Inc. While a separate corporation, Northwest Care Centre, Inc., shares the same board of directors as Excelsior Care, Inc., and also provides Developmental Disability Medicaid Waiver services to clients of the Agency for Persons with Disabilities.
….
8. Excelsior agrees that Mary Dunn, as Chief Executive Officer of Excelsior Care, Inc., and Northwest Care Centre, Inc., has full authority and control over the daily operations of Excelsior’s facilities to the extent authorized by law. This authority shall include the ability to take any employment actions necessary to effectuate the terms of this agreement. If Ms. Dunn’s employment ceases with either or both of Excelsior’s corporations, Excelsior shall notify the Agency, in writing, within 10 business days and provide the name and contact information for Ms. Dunn’s replacement.
….
Excelsior agrees that it shall correct, to the extent possible, any violation of the rules stated in 65G-2 of the Florida Administrative Code within seven days following notification of the violation by the Agency.
….
Excelsior agrees that it is responsible for the conduct of its employees and staff members within the course of their employment. As such, Excelsior agrees that it is fully responsible for any breach of this agreement, any breach of a Medicaid Waiver Services Agreement, or any violation of Chapter 65G-2 of the Florida Administrative Code by the Excelsior’s employees, staff members, or volunteers made in the course of employment or volunteer work.
….
Excelsior’s failure to abide by the terms of this Settlement Agreement shall result in the termination of any licenses and/or Medicaid Waiver Services Agreements that the Excelsior maintains with the Agency. The date of termination of the licenses and/or Medicaid Waiver Services
Agreement held by Excelsior, if terminated pursuant to this paragraph, shall be at the discretion of the Agency.
….
Unless otherwise stated, the terms of this Settlement Agreement shall be in effect for five years from the date of the execution of this settlement agreement.
COUNT I
On or about September 6, 2011, Ms. Dunn, was terminated from her position as the Chief Executive Officer of Excelsior Care, Inc. Ms. Dunn reported to the Agency that her last day of employment with Excelsior Care, Inc. was October 14, 2011.
The Respondent did not provide the Agency with written notice of either Ms. Dunn’s termination or her replacement.
This incident constitutes a breach of the settlement agreement currently in effect between the Respondent and the Petitioner.
COUNT II
On or about December 21, 2011, APD licensing specialist Joni Burnett conducted an inspection at a group home facility owned and operated by the Respondent located at 49th Street N.W., Bradenton, Florida, 34209. Two of the Respondent’s employees, Mr. Kenneth Moore and Ms. Joanne Sosbee, were present during the inspection. At the time of the inspection, Mr. Moore was serving as the Respondent’s Chief Executive Officer and Ms. Sosbee was serving as the Respondent’s Administrator.
During the course of her inspection, Ms. Burnett informed Mr. Moore and Ms. Burnett that one of the bathrooms in the home was infested with flying insects. On or about January 6, 2012, APD licensing specialist Joni Burnett conducted a follow-up site visit to the home and observed that the flying insects were still present in the bathroom and could now observed throughout the entire home. C.S., a vulnerable adult resident of the group home, told Ms. Burnett during her visit that he was “tired of taking showers with bugs all over me.” On or about January 6, 2012, Mr. Kenneth Moore disclosed to Ms. Burnett that a pest control company had never been called following Ms. Burnett’s previous visit on December 21, 2011, and that the home would not be treated for the insect infestation until January 10, 2012.
This incident constitutes a violation of rule 65G-2.012(8)(m), F.A.C. The Respondent’s failure to correct this violation within seven days of
notification by the Agency also constitutes a breach of the settlement agreement currently in effect between the Respondent and the Agency.
WHEREFORE, Petitioner respectfully requests revocation of the group home licenses currently held by the Respondent (license numbers 4951-05-GA, 4952- 06-GA, and 4812-6-GA) in accordance with Section 393.0673, Florida Statutes, and the terms of the settlement agreement between the Petitioner and the Respondent dated February 4, 2011.
Dated: March 15, 2012
Jonathan Grabb
Senior Attorney, Office of General Counsel Agency for Persons with Disabilities
4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950
Attachments: Explanation of Rights Election of Rights Form
Copies furnished to:
Kenneth Moore Excelsior Care, Inc. 802 71st Street NW Bradenton, FL 34209 |
Geri Williams, APD Suncoast Region Administrator |
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the above named individuals by U.S. Mail, facsimile, or electronic mail, this 15th day of March, 2012.
Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950
The enclosed Administrative Complaint charges you with violating one or more provisions of Chapter 393, Florida Statutes, or the rules supplementing that Chapter. If you have questions regarding your response or best course of action, you may wish to seek the advice of competent legal counsel.
Your receipt of this Administrative Complaint packet constitutes service upon you. Your rights under Florida law (Chapter 120, Florida Statutes) are as follows:
You may elect to not dispute the violations alleged in the Complaint and request that a hearing be held to present testimony or documents you wish the Agency to consider in mitigation of the alleged violations prior to disposition of this case. Any penalty levied will be included in a Final Order. If a dispute of material fact arises, the hearing will be terminated and the case referred to the Division of Administrative Hearings.
You may elect to dispute the violations alleged in the Complaint and request a hearing before an Administrative Law Judge, which is an administrative “trial”. You and the Agency may present evidence and witnesses to prove or disprove the facts alleged and submit a written proposed recommended order after the hearing for the Judge’s consideration. Based on the evidence and any proposed recommended orders submitted, the Judge will issue a Recommended Order containing Findings of Fact, Conclusions of Law, and Recommended Penalty, if any. Following review of the Recommended Order, the Agency will issue a Final Order.
You may also choose not to respond to this Administrative Complaint. By choosing not to respond within 21 days of your receipt of this Administrative Complaint, you will have waived your right to request a hearing regarding this matter and the Agency shall pursue the sanction indicated in the complaint.
An Election of Rights form is included with the Administrative Complaint. The Agency must receive it within 21 days of your receipt of this Administrative Complaint packet. After the Agency determines whether a dispute of material fact exists, it will make arrangements on your behalf for the appropriate hearing. You will receive notice of the date, time, and place of hearing at the address designated by you on your Election of Rights.
Please note, per Chapter 120.573, Florida Statutes, mediation is not available in this action.
RESPONDENT: Excelsior Care, Inc., Tampa, Florida.
I have read the accompanying Administrative Complaint and Explanation of Rights in this matter, I would like to request a hearing, and I elect for the following hearing option:
I do not dispute the facts alleged in the Administrative Complaint and wish to be heard on the issue of penalty or conclusions of law. I request an informal hearing pursuant to Section 120.57(2), Florida Statutes. I understand that at that hearing I will be permitted to submit only written or oral evidence in mitigation of the charges or explain why the facts alleged do not constitute a violation of law.
I dispute the material facts alleged in the Administrative Complaint and request an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes. Specifically, I dispute the following material facts:
Please be advised this is a legally binding document and contains important information regarding your rights. Should you desire advice regarding your response, you may wish to seek legal counsel before proceeding. By signing this document, you represent you are authorized to act on behalf of the establishment named herein and accept responsibility for compliance with any final order
resulting from this action. Failure to complete, sign and return the election of
Telephone number for contact: Fax
Signature: Date:
Print Name: Title:
Business Location Address: | City | State | Zip |
Mailing Address | City | State | Zip |
You are advised, per Section 120.573, Florida Statutes, that mediation is not available for this action. Please keep a copy of this document for your records.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 20, 2013 | Agency Final Order |
