_ STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, ” Petitioner, SO Gase No. 2013005360 V8. GENE COWLES AND AMELIA COWLES”. ‘d/b/a HILLANDALE ASSISTED LIVING, Respondent. - / ADMINISTRATIVE COMPLAINT CONES NOW, the. Agency for Health Care Administration (“Agency”) and files this Adminiatrative Complaint against Gene Cowles and Amelia Cowles d/b/a Hillandale Assisted Living ‘ (“Respondent” or “Respondent Facility”), pursuant to §§ 120.569. and 120.57, Pla. stat., and alleges: NATURE OF THE ACTION . This is an action to revoke Respondent’s license to operate an assisted living facility in the State of Florida, to impose “an administrative. fine in the amount of twenty thousand dollars ($20,000.00) and to impose a ‘survey fee of five hundred dollars ($500.00) based on two State Class I deficiencies pursuant to ss 408.813 and 429.19, Fla. Stat. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to $§§ 20.42, 120.60, 408.802, and Chapter. 429, Part I, Pla. Stat. Page 1 of 40 2. Venue lies pursuant to Fla. Admin. Code R. 28-106. 207. PARTIES 3. The Agency is the regulatory authority licensing assisted living facilities and enforcing all ‘applicable state statutes and rules governing assisted living facilities pursuant to Chapters 408, Part II, and 429, Part I, Fla. Stat., and Chapter 58A-5 Fla. Admin. Code. 4, Respondent operates a 24-bed assisted Living facility (“ALF”) located at 6333 Langston Avenue, New Port Richey, Florida 34652, and is licensed by the Agency as an ALF, License number 10549, with licensure for Limited mental health. ° 5. At all times material to the allegation of this complaint, Respondent was required to comply with all applicable rules and statutes. 6. Section 429.02, Florida Statutés, defines: (1) “Activities of daily living” means functions and tasks for self-care, including ambulation, bathing, dressing, eating, grooming, and toileting, and other similar tasks. (2) “Administrator” means: an individual at least 21 years of age who is responsible for the operation and maintenance of an assisted living factlity, . (5) “Assisted living facility” means any building or buildings, section or distinct part of a building, private home; boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator. Page 2 of 40 2 an a (2) “Community living support plan” means a written document prepared by a mental health resident and the resident’s mental health cage manager in consultation ‘with the administrator of an assisted living facility ‘with a limited mental health license or the administrator's designee. A copy must be provided to the. administrator. The plan must include information: about the supports, services, and’ special needs of the resident which enable the resident to live in the - assisted living facility and a method by which facility staff can recognize and respond to the signs and symptoms particular to that resident which indicate the need for professional services. : (8) “Cooperative agreement” means a written statement of understanding between a mental health gare provider and the administrator of the assisted living facility with a limited mental health license in which a mental health resident is living. The agreement’ must specify | directions for accessing emergency and after-hours care for the mental health reaident, A single cooperative agreement may service all mental health residents who.are clients of the same mental health care provider, 7. Section 429.075, Florida statates, requires: An assisted living facility that serves three or more ' mental health residents must obtain a limited mental health. license. : (1) To obtain a limited mental health. license, a . facility must hold a standard license as an assisted living facility, must not have any current uncorrected. deficiencies or violations, and must ensure that, within 6 months after receiving a limited mental health license, the facility administrator and the staff of the facility who are in direct contact with mental health residents must complete, training of no less than 6 hours related to their duties, Such designation may be made at the time of initial licensure or relicensure or upon request in writing by a licensee under’ this part and part II of chapter 408. Notification of approval or denial of such request shall -be made. in accordance with this part, part II of chapter 408, and applicable tules. This training will ‘be provided by or approved by the Department of Children and Family Services. Page 3 of 40 _ (2) Facilities licensed to provide services to mental ‘health residents shall provide appropriate supervision and staffing to provide for the health, safety, and welfare of such residents. (3) A facility that has a limited mental health license must: (a) Have a copy of each mental health resident's community living support plan and the cooperative agreement with the mental health care services provider, The. support plan and the agreement may be combined. 4 : (b) Have documentation that is provided by the Department of Children and Family Services that each mental health resident has been, assessed and | determined to be able to live in the community in an assisted living facility with a limited mental health Ticense. {c) Make the community living support plan available for inspection by the resident, the resident's legal guardian, the resident’s health care surrogate, and other individuals who have a lawful basis for . reviewing this document. (d) Assist ‘the mental health. resident in, carrying “out the activities identified in the individual’ s community living: support plan. (4) A facility with a limited mental health license may enter into a cooperative agreement with a private mental health provider. For purposes: of the Limited mental health license, the private merital health | ~ provider may act as the case manager. 8. Rule 58A-5.0182, Florida Administrative Code, requires: An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. (1) SUPERVISION. Facilities shall offer personal supervision, as appropriate for each resident, Aneluding the following: (b) 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. (oc) General awareness of the resident's whereabouts, Page 4 of 40 The resident may travel independently in the community. (ajo... (a) 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. (a) ACTIVITIES OF DATLY LIVING. Facilities shall offer supervision of or assistance with activities of daily living as-needed by each resident, Residents shall: be encouraged to be as independent as possible in’ performing ADLs. (6) RESIDENT RIGHTS AND FACILITY PROCEDURES. (a) A copy of the Resident Bill of Rights as described in Section 429.28, F.S., or a summary provided by the ' Long-Term Care Ombudsman Council shall be posted in full view in a freely accessible resident area, and included in the admission package provided ‘pursuant to Rule 58A-5.0181, F.A.C. (b) In accordance with Section 429.28, F.S., the facility shall have a written grievance procedure. for receiving and responding to resident complaints, and for residents to recommend changes to facility policies, and procedures. The facility must be able to ‘ demonstrate that such procedure is implemented upon receipt of a complaint. (e) The facility shall have a written statement of its house rules and procedures which shall be included in the admission package provided pursuant to Rule 58A- 5.0181, F.A.C. The rules and procedures shall address the facllity’s policies with respect to such issues, for example, as resident responsibilities, the facility’s alcohol and tobacco policy, medication storage, the delivery of services to residents by third party providers, resident elopement, and other administrative and housekeeping practices, schedules, and requirements. . (g) The facility shall provide residents with convenient. access to a telephone to facilitate the resident’s right to unrestricted and private Page’5 of 40 we ‘communication, pursuant to Section 429.28(1)(d), F.S, The facility shall not prohibit. unidentified telephone Galls to residents. For facilities with a licensed capacity of 17 or more residents in which residents do not have private telephones, there shall be, at.a ‘minimum, an accessible telephone on each floor of ‘each building where residents reside, (8) ELOPEMENT STANDARDS, (a) Residents Assessed at Risk for Elopament. All residents assessed at risk for elopement or with any history of elopement shall be identified so staff can be alerted to their needs for support and supervision. (ob) Facility Resident Elopement Response Policies and Procedures. The facility shall develop detailed written policies and procedures for responding to a resident elopement. At a minimum, the policies and procedures shail include: 1. An immediate staff search of the facility and premises; . 2. The identification of staff responsible for implementing each part of the elopement response . policies and procedures, including specific duties and responsibilities; 3. The identification of staff responsible for contacting law enforcement, the resideht’s family, guardian, health care surrogate, and case manager if the resident is not located pursuant to subparagraph ' (8) (b)1.3 and 4. The continued care of all residents within the facility in the event of an elopement. (¢) Facility Resident Elopement Drills. The facility shall conduct resident elopement drills pursuant to Sections 429,41(1) (a)3. and 429.41(1)(1), F.S. ‘ (9) OTHER STANDARDS. Additional care standards for residents residing in.a facility holding a limited mental health, extended congregate care or limited nursing services license are provided in Rules 58A- 5.029, 58A-5.030 and 58A-5.031, F.A.C., respectively. 9, Section 429.28(1), Florida Statutes, guarantees each resident of.an assisted living facility: “§ 429.28. Resident bill of rights Page 6 of 40 (1) No resident of a facility shail be deprived of ‘any civil or legal rights, benefits, ox 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: (a) Live in a safe and decent ‘living environment, free from abuse and neglect. (b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy. _(c) Retain and use his or her own clothes and other personal property in his.or her immediate living’ quarters, so as to maintain individuality and personal dignity, except when the facility can demonstrate that such would be unsafe, impractical, or an Anfringement upon the rights of other residents. . (d) Unrestricted private communication, including receiving and sending unopened correspondence, access “to a telephone, and visiting with any person of his or her choice, at any time between the hours of 9 a.m. and 9 p.m. at.a minimum, Upon request, the facility | ‘shall make provisions to extend visiting hours for caregivers and out-of-town guests, and in other _ Similar situations. (j) Access to adequate and appropriate health care consistent with established and recognized standards within the community. (3) (a) The agency shall conduct a. survey to determine general compliance with facility standards and compliance with residents’ rights as a prerequisite to initial licensure or licensure renewal. (b) In order to determine whether the facility is adequately protecting residents’ rights, the biennial survey shall. include private informal conversations with a sample of residents and consultation with the ‘ ombudsman council in the planning and service area in which the facility is located to discuss residents’ ‘ a@xperiences within the facility. (c) During any calendar year in which no survey is conducted, the agency shall conduct at least one monitoring visit of each facility cited in the previous year for a class I or class II violation, or . More than three uncorrected class III violations. Page 7 of 40 ' { i aq (d) The agency may conduct periodic followup inspections as necessary to monitor the compliance of facilities with a history of.any class I, class II, or class III violations that threaten the health, safety, | er security of residents. : (e) The agency may conduct complaint investigations as warranted to investigate any allegations of noncompliance with requirements required under this part or rules adopted under this part, 10, Section 415.102, Florida Statutes, defines: (1) “Abuse” means any willful act or threatened act by a relative, caregiver, 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. : (2) “Activities of daily Living” means functions and tasks for self-care, including ambulation, bathing, ‘dressing,’ eating, grooming, toileting, and other similar tasks. (4) “Caregiver” means a person who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a vulnerable adult on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person's guardian that a caregiver role exists. "Caregiver" includes, but is not limited to, relatives, household members, guardians, neighbors, and employees and volunteers of facilities as defined ‘dn subsection (8). For the purpose of departmental investigative jurisdiction, the term "caregiver" does not include law enforcement officers or employees of municipal or county detention facilities or the . Department of Corrections while acting in an official capacity. (6) "Facility" means any location providing day or residential care or treatment for vulnerable adults. The term "facility" may include, but is not limited to, any hospital, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, residential facility licensed under chapter 393, adult day training center, or mental health treatment center. Page 8 of 40 (15) "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. (19) “protective investigation” means acceptance. of a ‘report from the central abuse hotline alleging abuse, neglect, or exploitation as defined in this section; investigation of the report; determination as to whether action by, the court is warranted; and referral _ of the vulnerable adult to another public or private agency when appropriate. (20) “Protective investigator” means an authorized agent of the department who receives and investigates reports of abuse, neglect, or r exploitation of vulnerable adults. (21) “Protective services” means services to protect a vulnerable adult from further occurrences. of abuse, neglect, or exploitation. Such services may include, but are not limited to, protective supervision, . placement, and in-home and community-based services. (22) “Protective supervision” means those services arranged for or implemented by the department to protect vulnerable adults from further occurrences of abuse, neglect, or exploitation. (23) “Psychological injury” means an injury to the intellectual functioning or emotional state of a vulnerable adult as evidenced by an observable or measurable reduction in the vulnerable adult's ability to function within that person’s customary range of performance and that person's behavior, (26) "Vulnerable adult" means a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or ‘Page 9 of 40 her own care or protection is impaired due to a mental, emotional, long-term physical, or developmental disability or dysfunctioning, or brain damage, or the infirmities of aging. . 11. Rule 58A~5.019, Florida Administrative Code, requires: (1). ADMINISTRATORS. Every facility shall be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including the management of all staff and the provision of adequate care to'all residents as required by Part I of Chapter 429, F.$., and this rule ‘chapter. 12; Section 429.23, Fla. Stat., requires: (2) Every facility licensed under this part is required to maintain adverse incident reports. For purposes of this section, the term, “adverse incident” means: . (a) An event over which facility personnel could exercise control rather than as a result of the resident's condition and results in: u 1. Death; . . 2. Brain or spinal damage; 3. Permanent disfigurement} 4. Fracture or dislocation of bones or joints; 5. Any condition that required medical attention to which the resident has not given his or her consent, . including failure. to honor advanced directives; 6. Any condition that requires the transfer of the resident from the facility to a, unit providing more acute care due to the incident rather than the resident’s condition before the incident; or 7. An event that is reported to law enforcement or its personnel for investigation; or (b) Resident elopement, if the elopement places the resident at risk of harm or injury. - (3) Licensed facilities shall provide within 1 business day after the occurrence. of an adverse incident, by electronic mail, faceimile, or United States mail, a preliminary report to the agency on all adverse incidents specified under this section. The report must include information regarding the identity of the affected resident, the type of adverse incident, and the status of the facility's Page 10 of 40 investigation of the incident. (4) Licensed facilities shall provide within 15 days, . by electronic mail, facsimile, or United States mail, a full report to the agency on all adverse incidents . Specified in this section. The report must include the results of the facility’s investigation into the adverse incident. : . , . 13, Rule 58A~-5.0241, Florida Administrative Code, “requires: 58A-5.0241 Adverse Incident Report. (1) INITIAL ADVERSE INCIDENT REPORT, The preliminary adverse incident report required by Section 429.23(3), F.S., must be submitted within: one (1) business day after the incident on AHCA Form 3180-1024, Assisted ; Living Facility Initial Adverse Incident Report-1 Day, January 2006, and incorporated by reference. The form shall be submitted via electronic mail to riskmgmtps@ahca.myflorida.com; on-line at http: //ahca.myflorida.com/ reporting/index. shtml; by facsimile to (850)922-2217; or by U.S. Mail to AHCA, Florida-Center for Health Information and Policy Analysis, 2727 Mahan Drive, Mail Stop 16, Tallahassee, Florida 32306-5403, telephone (850) 412-3731. AHCA Form 3180-1024 is available from the Florida Center for Health Information and Policy Analysis at the address : stated above. The Initial Adverse Incident Report is : 4 in addition to, and does not replace, other reporting requirements specified ‘in Florida Statutes, (2) FULL ADVERSE INCIDENT REPORT. For each adverse incident reported under subsection (1) above, the facility shall submit a full report within fifteen (15) days of. the incident. The full report shall be submitted on AHCA Form 3180-1025, Assisted Living Facility Full Adverse Incident Report-15 Day, dated January 2006, and incorporated by reference. The : methods for obtaining and submitting the form are set forth in subsection (1) of this rule. : - ; COUNT I 14. - The Agency re-alleges and incorporates paragraphs one (1) through thirteen. (13), as if fully set forth in this count. Page 11 of 40 15. The Agency conducted a complaint investigation survey of Respondent on April 29 and 30, 2013, 16. Based on the Agency’s surveyor’s review of Respondent’s records and interviews, the Agency determined that Respondent failed to protect Respondent’s residents from : suffering violations of resident’s rights while residing in the Respondent’ s assisted living facility and failed to adequately train Respondent’s staff. 17. On April 29, 2013, at approximately 10:30 a.m., the Agency’s surveyor requested the Respondent’s log'of Incident Reports from Respondent’s staff #A. Staff #A did not know of _ any Incident Log being kept. Staff #A told the Agency’s surveyor, “We don’t document all incidents unless they’ re bad enough.” - 18. On 4/29/13 at approximately 11:30 ‘a.m., the Agency’s ‘surveyor requested the log of Incident Reports from the facility Administrator. The Administrator responded: "I don't keep a log of the incidents, but I have plenty of Incident Reports." The Administrator handed the Agency’s surveyor a folder containing 5 Incident Reports dated 2012 and 11 Incident Reports dated 2011. The Agency’s surveyor made copies of the 2012 reports for purposes of the survey. 19, On 4/30/13 at approximately 11:00 a.m.,.a representative of another State agency observed copies: of the .Page 12 of 40 reports given to the Agency’ s ‘surveyor by Respondent's Administrator and provided 2 more reports. ‘The representative of the other State agency stated that the Administrator had. . pulled the 2 reports out from under his desk mat. The reports were not included in the file presented to the Agency’ s Surveyor on 4/29/13, . | . 20. The Agency’s surveyor reviewed the -7 Incident Reports provided for 2012. All reports involved Resident #23, Resident #23 became a ‘resident of Hillandale on 4/5/2012, The following events, as documented in Hillandale's records, show an escalating pattern of aggression towards others, which the facility failed to redirect: { 1. On 5/6/12, " was upset over | : relationship break-up ... got aggressive ... wouldn't i : _ comply with staff ... fell on floor, hit staff." Actions i taken: " called 911. Police came out took i oS report. I spoke to Administrator.” Notified Administrator 1 5/6/12 at "12:30 noon" . Staff I and B added note at bottom | Of page: "5/7/12-spoke with sheriff they stated was cop shopping to get what s/he wanted. Not Adverse. No one knows how incident happened-~she has made i wild accusations not supported by witnesses," initialed } . ‘ "JR.". The initials “JR” are the initials of Respondent's i . . . , . i Administrator, John Ross. Nothing is written in the oo a Page 13 of 40 "Pollow Up" section at the end of the Incident Report, form, ‘There was no documentation of efforts made to prevent reoccurrence. 2.. “6/2/12 "Assault on Resident-Living Room 6/2/12 at 10215 ( (am/pm not provided)." " and (not listed as current resident) got into, a squabble, thought was going to nit . hit «Resident #23>. " - Laceration & Bite--treated by physician: Northbay 6/2/12 at : | “AL asin, "Steps taken to prevent recurrence: to get evaluated at hospital." This report was prepared by Staff B 6/2/12 at 1:15, a.m. or p.m. not provided. Note at ‘bottom: " ds having mental lapses." The _ Incident Report was faxed to Consult Care. and FACT. No additional follow-up was provided, There was no documentation of efforts made to prevent reoccurrence, 3, 6/12/12 "Client was outside trying to kill a spider, | S/he fell trying to kill the spider and twisted ankle." Called 911, Notified 6/12/12 at 4:10 pm, Follow Up; “primary care/doctor" (no results provided) 4, 9/18/12 " signed (out) September 13, 2012 Did not return" "Called 911, filed missing ae Report, Baker Acted white in community" Notified 9/18/12 (changed to. 9/17/12 ) at 4:00- p,m, ~ Page 14 of 40 ~Physician & Case Manager completed py Administrator ... Staff H& CC... Follow Up:. " was Baker Acted the 14th of September. S/he is now in treatment at Largo Medical Center in Indian Rocks." This report was dated as written 5 days after the resident signed out from the facility ard did not. return. . a 5. undated, 2/26/13 ? " adamantly refuses’ to cooperate with staff, been aggressive toward other ‘ clients and staff, walking around the facility with feces and urine, refusés to shower." "Talked to FACT Team and will be baker acted." Notified doctor and ‘Case Manager on 2/26/13 at 1:30 p.m. --Attached: " was attacking ", , and “, also 2 staff-members. is walking around smearing feces on the walls, couches, and people, walking around without clothes and refuses to cooperate, take shower. This is the 3rd time law enforcement have been called. FACT Taam member signed form for her to be baker acted." Follow Up: blank -- There wag no documentation of efforts made to prevent reocourrence. There was no documentation of effects of, or potential harm caused by, being attacked for the. 3 residents, Residents #13, $21, and #8, 6. 3/24/13 " went into "'s Page 15 of 40 room to gat Christmas iPad and " just started hitting for no reason." Staff D - Called 911-Baker Acted Resident #23; "3/24/13 6:40"- Notified: blank; Administrator Listed--not as being . ‘contacted. Follow Up; blank -- there was no documentation of efforts made to prevent reoccurrence, vi 4/10/13 " was attacking other clients then requested something was wrong. wanted to cut (own) throat. s/he requested to call 911 and be Baker Acted." - staff D and Ex~called 911; Admin and FACT Team notified at 6 p.m, ... Follow Up: blank. 21. The Agency's surveyor interviewed the Respondent's Administrator on 4/29/13 at approximately 3:00 p.m. Respondent’s Administrator stated that Resident #23 had been ‘discharged on 4/10/13, Resident #23 was listed as admitted to the facility on 4/5/12; but no discharge date or information is recorded on the facility Admission /Discharge log. There was no documentation. of facility efforts to prevent reoccurrence of incidents involving Resident #23, or to provide adequate protection for the health, safety, and welfare of other facility residents. oo 22. The Agency's surveyor’ s review of the Respondent's _xesident records revealed: 22.(a) Resident #13 became a resident on 11/26/2011. aA Page 16 of 40 lL... plenary guardian was appointed for Resident #13 on 11/10/2008. Resident #13's diagnoses include schizophrenia, grand mal seizures and ‘pseudo-seizures. 22.(b) Resident #21 became a resident of the facility on (6/1/2012. A plenary guardian was appointed for Resident #21 on 11/2/2011, Resident #21's diagnoses include bipolar affective disorder, attention deficit hyperactivity disorder (ADHD) , Learning disorder and Asperger's syndrome. An ‘evaluation dated 6/29/2011 states: "He needs constant redirection ' ~» He appears to have developed aggressive behaviors as a manipulative technique..." A 3/27/2012 evaluation states that Resident #21 "has a tendancy [sic] to become extremely physically violent...” 22.(c) An evaluation of Resident #23 dated February 27, 2013, recounts: " This is a ~year-old female, admitted under BAS2 [Baker Act] from the ALF Hillandale, wheze she had been found with a large amount of urine and feces on her body, smeared on the walls, aggressive with clients, attempted to burn another resident with cigarettes, slapped and attacked two staff members, refusing medications. While in the ER, the patient lunged at the ER nursing staff. She also pushed her fingernails into the arm of . another nurse." 23. Resident interviews were conducted by the Agency’s ' Page 17 of 40 surveyors beginning 4/29/13 at 11:50 a.m. The interviews further confirmed instances of resident abuse and Respondent’ s failure to provide adequate protection for the health, safety, and welfare of facility residents: . 23. (a) In the Agency's .surveyor’s interview with Resident #9.on 4/29/13. at 11:50 am, the resident stated: "Staff and residents get into fights. I just stay out of : it. started smacking me on my head, All were on the couch watching TV." 23. (b) In the Agency's surveyor’ s interview with Resident #17 on 4/29/13 at 12:45 p.m, the resident stated: " moved out ... won't be coming back ... 2 incidents ... got up in my face and pushed all the time .,, “ moved back home and won't be ‘coming back, s got in a fight with perfume given to my roommate s/he was ‘trying. to claim, pushed down +a. Sregsident> had a water: bottle . sswater went all over, I pushed out of my room and locked my door, I heard was evicted, not allowed back due to tantrums and running away. hole in-back fence, . sneak away or slip out when car comes through." 23.(¢) In the Agency’s surveyor’s interview with | Resident #5 on 4/29/13 at 1:05 p.m., the resident stated, bo when asked if he has been attacked or hit by any staff or Page 18 of 40 residents: : “, my roommate, stabbed me on the arch of my foot, but there was no blood, no skin cut, no wound ... No, I didn't go to the ‘doctor, They said it was okay.” 23.(e) In the Agency’ s surveyor’ s interview with | Resident #8 on 4/29/13 at 1:30 p.m., the resident stated, when asked about staff treatment of residents: "We're treated like doormats: and 2nd class citizens here, I believe they steal things, but I've never seen them. They're rude to me and others." When asked about resident fighting, Resident #8 stated, "I never hit anybody. got locked up." 23.{f) In the Agency’s surveyor’s interview with Resident #14 on 4/30/13 at 11:30 a.m., the resident stated: "Tt don't feel safe. punched me. one time in Page 19 of 40 wee ed. eee sete ee tte ee the back." 24, The Incident Reports provided to the Agency’s surveyor were all pertaining to Resident #23, who was named frequently during resident interviews. No Incident Reports were provided to the Agenoy’s surveyor by Respondent’ s Administrator pertaining to other residents or to incidents mentioned during interviews, and no records were found of Respondent's staff's interventions or attempts to protect residents from violence. 25. The Pasco. Sherifé’s pepartinent provided a log of calls from the Hillandale facility resulting in visits by deputies during the period from 3/20/13 to 5/1/13. When the Agency’s surveyor reviewed the six calls in the Sheriff’ s Department’ gs ; log, two ~ calls on 3/24/13 and 4/10/13 - had written Incident Reports, Following are the 4 additional incidents involving police intervention: . . 1. 3/20/13 Missing person left facility 2 days ago and has not returned, does not have meds with her ~~ ‘staff sald "Because she leaves so frequently it is normally not reported right away _ . 7reported niseing 4 times in the past year." Thare was no documentation of facility interventions to provide adequate’ protection for . the health, safety, and welfare of Resident #19. 2, "4/2/13 at 6157 p.m. dispatched to facility regarding runaway/missing person . reported Page 20 of 40 ‘that resident escaped out of facility on 3/13/13 3 p.m. by climbing through a.hole in the fence." ° Clearwater Police picked up resident and transported to Morton Plant , Hospital, There was no documentation of the 3/13/13 elopement and no documentation of the 4/2 reports there was no evidence of concern. regarding thé 20 days. that passed - between elopement and police dispatch. 3. "4/7/13 simple battery Suspect attacked standing in line for medicine when attacked , said started to slap and scratch on neck, face, and back. said s/he was standing in line for meds; Staff gaid it - happened when came out of , said attacked & hit in the face--case transferred to State Attorney's Office." A facility incident report dated 4/10/13. was provided-~referencing Resident #23 "attacking other clients," but no’ documentation of the 4/7/13 incident. There was no docunentat ion of facility interventions to provide adequate protection for the . health, safety, and welfare of either of Residents #21 or #23, On 4/10/13, Resident #23 said she knew something was ‘wrong, wanted to’ cut (own) throat, and requested facility Page 21 of 40 a staff call 911 to be Baker Acted, There was no evidence of staff concern for resident welfare. 4. 4/15/13 7:20 p.m. Responded in reference to suicide threats; reported by Staff F - harming ‘ himself-upset that. he lost game charger-threw picture frame-" began bashing his head into the wall, causing.a laceration on his forehead. into office and attempted to calm down. . then began bashing his head into the wall, causing a laceration ‘on his forehead. immediately called the Pasco Sheriff's Office to report the inoéident ‘and have Baker Acted for safety." : Transported to Trinity Hospital to be treated for injury; Baker Act form completed while at Trinity. On 4/29/13 and 4/30/13, two Agency surveyors were approached multiple times, 2-3 times each, by Resident 418 regarding needing a charger for his game. There were no documented attempts by the facility to assist the resident with concern causing him considerable distress and documented suicide threat, There was no documentation: of efforts by facility to prevent _ reoccurrence of resident self-harm. 26. The Agency determined that Respondent’s above . violation of residents’ rights is a condition or occurrence related to the operation and maintenance of a provider or to the Page 22 of 40 whee \ care of clients which the ‘agency determines presents an imminent danger to-the clients of the provider or a substantial probability that death or serious physical or emotional harm would result, and which the Agency determined to be a class I violation for the purposes of sections 408.813 and 429,19, Florida Statutes. WHEREFORE, thé Agency intends to impose an administrative fine in the amount of $10,000.00 against Respondent, Pursuant to §§ 408.813 and 429.19, Florida Statutes, or such further relief as this tribunal deems just. ‘COUNT II 27. The Agency re-alleges and incorporates paragraphs one .(1) through thirteen (13), ag if fully set forth in this count, 28. Based on observations, interviews, and record review, the assisted living facility failed to ensure residents lived in a safe and decent living’ environment, specifically allowing a _ continued and ongoing bed bug infestation, originally identified on August 2, 2012, and identified on April 29 and 30, 2013, as directly effecting at least 7 residents.- Residents #1, #2, #10, #11, #12, #14 and #15 - of 20 current residents and failed to follow all recommended procedures set forth by the County Health Department on 4/30/13 to .include removing residents from the affected rooms immediately, until pest control is complete. 29. The Agency’s surveyor's review of a County Department Page 23 of 40 | | { | of Health inspection report dated 8/02/12 revealed "Per conversation: with the... ‘administrator, inspector was advised of the presence of the pests (beg bugs) two weeks ago." 30. The Agency’ s surveyor" s review of a County Department of Health inspection report dated 10/09/12 revealed the county inspector identified the presence of bed bugs. The teport indicated: "Violation #27 Live bedbugs ‘observed, in rooms 3 and ‘8. Residents must be removed from these rooms until problem resolved, Staining on some beds in other roome may indicate previous or current infestation. All bedding must be thoroughly inspected and situation monitored on ongoing basis." 3i. The Agency’s surveyor’s review of a County Department of Health inspection report dated 1/09/13 revealed the county inspector identified the presence of bed bugs. The report ‘indicated: "Violation #27 Active widespread bedbug infestation, " 32. The Agency’s surveyor observed several of Respondent’ s . vegidents waiting for medications on 4/30/13. at approximately “7205 a.m. Resident #10 was among the residents standing in line. Resident. #10 was observed to scratch his back and left shoulder and make a guttural noise, “ugh.” When the surveyor asked if he was.ok, he indicated, "those (deleted word) bugs." Upon the Agency’s surveyor’s request, Resident #10 removed his long-sleeved jacket. He was observed to wear a sleeveless t- shirt under the long-sleeved jacket. His left arm-was observed Page 24 of 40 to have multiple xed blotches on ‘the lower half, while his shoulder and upper part of his arm were covered with multiple bumps characteristic of bedbug bites. 33. The Agency’ s surveyor observed Respondent's resident room ‘#7 at 7:40 a.m, on 4/30/13. A twin size bed was up against - the west ‘wall, with the head of the bed against the north wall, this was the only bed in the room. The bed was made.. the surveyor pulled the top sheet back. Multiple live insects, which looked like bedbugs, were observed on the top sheet of the’ bed. The pillow was pulled up and the surveyor viewed the area where the fitted sheet and mattress abutted the head board. Insects were observed to scurry upon exposure. | The top sheet was pulled back from the foot of the bed. Two insects ‘ware observed on the fitted sheet along the seam. The insects that were observed ‘on this bed were ovoid in shape, flattened, reddish brown, in color and many of them were observed to have distended abdomens. Many of the insects were the size of apple seeds. A single insect was picked up by the surveyor from the top sheet, placed on the floor and stepped on with the tip of his right shoe. ‘The bug exploded, and red fluid, resembling blood, spattered on the floor. The above actions were witnessed by Respondent’s employee HA. 34, ‘the Agency’ s surveyor observed Respondent’ s room #8 at approximatély 7:50 a.m. on’4/30/13. Two beds were present. One Page 25 of 40 of the beds abutted the. north wall, with the head of, the bed against the east wall; the bed linens were pulled up to the head of the bed. The bedspread and top sheet were pulled back fron the head of the bed. A few small rust colored spots were observed on the pillow and the sheet, .Two insects were observed on the southern, long outside, edge of the bed. One bug was the size of an apple seed.. It was reddish brown in color with a distended abdomen. _ 35, “In an interview with Respondent's employee #A, after the observations on 4/30/13 at approximately 8 a.m., the Agency’ s surveyor was told that employee #A would remove the residents’ bed linens and their clothes and wash them as well as spray the beds. 36. The Agency’ s ‘surveyor’ observed the spray utilized by, .and concurrently interviewed, employee #A on 4/30/13 at 9:30 - a.m, Respondent's employee #A stated that she had removed bed linens from rooms #7 and #8. According to employee #A, the _ product she used to spray the beds was an ecologically friendly product. - The main ingredient in this product was listed as 95% d-limonene,- per the label that was affixed to the can’of spray. She indicated this is the product the pest control company uses, 37. An interview was conducted with a representative of the County Health Department 4/30/12 at 11: 40 a.m. “She indicated there was a current infestation of bed bugs. She Page 26 of 40 ee confirmed that the insects identified’by the surveyor in room #7 and 48 were bedbugs. She indicated that bédbugs are very resistant to poisons so the best methods of extermination are heat or freezing. She also indicated the bugs. she observed at Respondent’s assisted living faallity were well fed. . 38.. A County Health Department inspection report dated “4/30/12 with a beginning time of 11:00 a.m. and an ending time of 11:50 a.m. documented: "Violation #27 Active infestations observed in rooms 1, 7, 8, and 10. Residents must be removed from these rooms until: professional pest control is completed. All linens and clothing must be washed and dried on high heat and room, furniture and mattresses thoroughly vacuumed. " 39. - On April 30, 2013, at 9:20 a.m., the Agency’ s surveyor conducted an interview with Resident: #10. "39. (a) 10110 a.m, - I meet with resident #10, who resides in room #7. He was oriented to self, place and date. ) 39.(b) He stated that he had been getting bitten by bugs © in his room for approximately one month, 39, (c) He stated he informed the administrator, and that staff #A had sprayed his room, He was not sure of the specific date. - 39.(d) ‘Observation of his arms, back and lower legs and feet revealed visible small red marks covering his upper Page 27 of 40 } i. back, upper and lower arms ‘and his lower legs including his feet. He indicated he has not seen.a doctor for the bites. 40. The Agency’s surveyor conducted an interview with Respondent’s staff #A on 4/30/13 at 12:45 p.m. regarding ) Resident #10 in room #7, She indicated she was not aware of Resident #10 bringing to the facijity’s attention that he was being bittén by bedbugs. She stated that she contacted the pest control company that Respondent has contracted with to provide pest control. She stated that the pest control company will ‘come out “this Friday,” May 3, 2013, and treat for bedbugs. When agked about moving the residents in the infested rooms to uninfested rooms, she indicated she would wash all bed linens in affected rooms in hot water and dry with high heat.. She also stated that she‘ is spraying the: bedfranes with pesticide, 95% -d- 1imonene, which was provided by the pest control company to . treat. for bedbugs. She confizmed there was an empty room available in the building with 2 beds. 41. On 4/30/13 at approximately 12:55 p.m, the Agericy’s surveyor ‘conducted a telephone interview with the branch manager of the pest control company with whom Respondent contracted. He confirmed that a representative of the pest control company will be on-site at ‘the Respondent! 8 building on Friday, May 3, 2013, to treat for pedbugs. He stated they are going to all xooms in. the facility. He also stated that they will be using liquid. Page 28 of 40 .nitrogen to provide freezing treatment for bedbugs. 42. On 4/30/13 at approximately 1:45 p.m., the Agency’ s surveyor was able to interview Resident #11. She stated that ; ‘the bedbugs have affected her. She showed the Agency's surveyor her lower arms. Observed were small. red marks on ‘each arm; ‘appearing to be bedbug bites. 43. A County Health Department inspection report was reviewed on 5/8/13. The report was dated 5/7/13 and indicated: "Live adult bedbugs observed. in bed on right side of toom 10." 44,. The Agency determined that Respondent violated resident’ s rights by: not immediately taking the corrective action indicated by the County Health Department inspector on ' April 30, 2013, to immediately remove the residents from infected rooms #1, #7, #8. and #10, and that this violation is a condition or occurrence ‘related to the operation and maintenance of a provider or to the care of residents which. the agency determined presents an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result, which the Agency determined to be a class I violation for the purposes of sections 408.813 and 429.19, Florida Statutes. ) WHEREFORE, the Agency intends to: impose an administrative fine in -the amount of $10,000.00 against Respondent, pursuant to $§ 408.813 and 429.19, Florida Statutes, or such further relief Page 29 of 40 as this tribunal deems just. . COUNT III SURVEY FEE 45. The Agency re-alleges and incorporates above Counts J and II, as if fully set forth in this count. “46, Pursuant to Section 429.19(7), Florida Statutes, in _ addition to any administrative fines imposed, the Agency may assess a survey fee equal to the lesser of one half of a ‘facility! a biennial license and bed fee, or $500, to covet the ‘cost of conducting an initial complaint investigation that results in the finding of a violation that was the subject of the complaint, or to cover the cost of a future monitoring ‘survey where the current survey finds’ one.or more Class I or Class II violations. 47. On of about April 29 and-30, 2013, the Agency conducted a complaint investigation at the Respondent ‘Facility which resulted in the finding of a violation that was the subject of the complaint to the Agency, or which found one or more Class I violations, or both. 48. Pursuant to Section 429.19(7), Florida Statues, such a . Finding as specified in above paragraph 47 subjects the Respondent Facility to a survey fee equal to the lesser of one half of the Respondent's biennial license and bed fee, or - $500.00. | 49. Respondent is therefore subject to an additional ‘Page 30 of 40 2 oealee ene . survey fee of five hundred dollars ($500.00), pursuant to Section 429.19(7), Florida Statutes, in addition to the fine applicable to the violations found at the above Agency survey of. April 29 and 30, 2013. WHEREFORE, the Agency intends additionally -to impose a survey fee of five hundred dollars ($500.00) against Respondent, pursuant to Section 429.19(7), Florida Statutes. COUNT V_REVOCATION QF LICENSE 50. The Agency re~alleges and incorporates paragraphs one (1) through thirteen (13) and above Counts I and II, as if fully set forth in this. count, | | 51. Bursuant to section 429.01, Florida Statutes: (2) The purpose of this act {the Assisted Living Facilities Act] is to promote thé availability of: appropriate services for elderly persons and adults with disabilities in the least restrictive and most homelike environment, ‘ta encourage the development. of facilities that promote the dignity, individuality, privacy, and decisionmaking ability of such persons, to provide for the health, safety, and welfare of ' residents of assisted living facilities in the state, to promote continued improvement of such facilities, to encourage the development of innovative and affordable facilities particularly for persons with low to moderate incomes, to ensure that all agencies of the state cooperate in the protection of such residents, and to. ensure that needed economic, social, mental health, health, and leisure services are made available to residents of such facilities through the efforts of the Agency for Health Care Administration, the Department of Elderly Affairs, the Department of Children and Family Services, the Department of Health, assisted living facilities, and other community agencies. To the maximum extent possible, appropriate community-based programs must be available Page 31 of 40 to state-supported residents to augment the services provided in assisted living facilities. The . legislature recognizes that assisted living facilities are an important part of the continuum of long-term care in the state. In support of the goal of aging in place, ‘the Legislature further recognizes that assisted living facilities should be operated and regulated as residential environments with supportive - services and not as medical or nursing facilities, The services available in these facilities, either directly or through contract or agreement, are intended to help residents remain as independent as. possible. Regulations governing these facilities must be sufficiently flexible to allow facilities to adopt policies that enable residents ‘to age in place when resources are available to.meet their needs and accommodate their preferences. (3). The principle that a license issued under this part is a public trust and a privilege and is not an entitlement should guide the finder of fact or trier of law at any administrative proceeding or in a court action initiated by the Agency for Health Care Administration to enforce this part. 52. Section 408.815(1), Florida Statutes, provides that: In addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: ‘ (bo) An intentional or negligent act materially affecting the health or safety of a client of the provider. . (c) A violation of this part, authorizing statutes, or applicable rules, (d) A demonstrated pattern of deficient performance. - (e) The applicant, licensee, or controlling interest has been or is currently excluded, suspended, or terminated from participation in the state Medicaid program, the Medicaid program of any other state, or the Medicare program. : 53. Pursuant to Section 429.14, Florida Statutes, administrative penalties include: Page 32'of 40 ce ate (1) In addition to.the requirements of part II of chapter 408, the agency may deny, revoke, and suapend any license issued under this part and impose an administrative fine in the manner provided in chapter 120 against a licensee for a violation of any. provision of this part, part II of chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under s. 408.809, or for the actions of any facility employee: (a) An intentional or negligent act seriously affecting the health,: safety, or welfare of a resident of the facility. . (e) A citation of any of the following deficiencies as specified ins. 429,19: 1. One ‘or more cited class I deficiencies. 2. Three or more gited class II deficiencies. . 3. Five or more cited class III deficiencies that have been cited on a single survey and have not been corrected within the times specified. (h) Failure of the license applicant, the licensee during relicensure, or a licensee that holds a provisional license to meet the minimum license requirements of this part, or related rules, at the time of license application or renewal. (k) Any act constituting a ground upon which application for a license may be denied. (4) The agency shall deny .or revoke the license of an assisted living facility that has two or more class I violations that are similar or identical to violations identified by the agency during a survey, inspection, monitoring visit, or complaint investigation occurring within the previous 2 years. 54 Section 429,11, Florida Statutes, requires: (1) Bach applicant for licensure must comply with all provisions of part II of chapter 468 and must: (5) The applicant must furnish documentation of a satisfactory sanitation inspection of the facility by the county health | department . Page 33 of 40 ) 55. Pursuant to a complaint investigation survey “concluded on August 15, 2007, Respondent was cited, among other violations of residents’ rights, alleging that Respondent had committed a _ Class II violation, in eummary: ; 55. (a) Based upon record review, staff interview and observation, ‘the Respondent failed to provide a safe and decent living envizonment, in that residents were subjected to unpredictable and violent behaviors from other facility residents, resulting in injury, due to incomplete or absent medical examination reports, inappropriate placement of , residents with. a history of aggressive behavior, insufficient staffing to meet resident supervision needs, the failure to report changes in resident conditions and” behaviors to the appropriate parties and the maintenance of a a written record.of such, for 4 of ‘4 sampled discharged “residents, Former Residents #20, #21, #22 and #23, and 20 of 20 current ‘residents, Residents #1 through #19 and #24, ' 55,(b) An administrative complaint based on the above was ‘served on Respondent on November 27, 2007. . ‘55. (c) On December 5, 2007, Respondent filed with the 4 Agency's clerk an Election of Rights which admitted the allegations of fact and law contained in the Agency’s ‘Administrative Complaint which had been served on Page 34 of 40 es ae Respondent on November 27, 2007. : 55.(d) On January 7, 2008, the Agency entered a final | order determining that the allegations of the administrative complaint served on Respondent on Novenioar 27, 2007, were a Class II violation, fining Respondent | $1,000 and imposing a survey fee of $167.50. 56. On April 16, 2013, the Agency entered a Final Order against Respondent, a true and: correct copy of which is attached as exhibit A to this administrative Complaint, which states on page 4 of the Pinal Order: The ALJ [Administrative Law Judge from the Division of Administrative Hearings] concluded, and neither party has disputed, that Respondent failed to provide a safe and decent environment free from abuse and neglect ‘and failed to treat its residents with consideration and respect and with due recognition of personal dignity and individuality in violation of § 429:28(1) (a) and .(b), Fla. Stat. See Paragraph 50 of the Recommended Order. 57, Paragraphs 16, 1 17 and 18 of the ALJ’s Recommended 7 Order of January 17, 2013, find: 16. The Hillandale staff did not have adequate training to manage the residents, other than moving them from one activity to another. 17. In 2007, an Administrative Complaint was issued alleging Hillandale had failed to provide 6nough qualified staff to provide a safe Living . : environment for the residents. Hillandale was alleged = ; to have violated the residents rights to live ina Safe and decent living environment, free form abuse : , and neglect, and the residents were not treated with consideration, respect, and due recognition of their ‘personal dignity. Hillandale admitted the allegations, and, on January 3, 2008, AHCA [the Page 35 of 40 Agency] issued a Final Order finding that Hillandale was in violation of section 429,28(1)(a) and (b), ‘Florida Statutes (2007). An administrative fine was _ imposed as wéll as a fee for the survey. 18. In August 2012, Katherine Benjamin [an Agency surveyor] was at Hillandale to conduct a survey. In conducting that survey, Ms. Benjamin reviewed several Facility Event Reports (reports). —In ’-@ach report reviewed, a resident had suffered some kind of injury, either self-inflicted or caused by another resident. These reports, when initially reviewed by the surveyor, did not contain ‘ documentation that the residents’ health care ‘provider, the residents’ representative, or their appropriate case worker had been notified. further, the report form specifically directs that the date and . time that. those persons were notified should be : - vecorded, That specific information was not present. These reports are. required to be completed by Hillandale staf£ to document what happened and how the events were resolved. Ms. Benjamin found deficiencies in three different instances. Mr. Ross described the discrepancies as. merely “a paperwork problem” that was corrected. When other deficiencies or problems were pointed out by surveyors, Mr. Ross discounted, ; disputed or otherwise found fault with the surveyors as opposed to accepting that there was or might be a problem and embracing the opportunity to improve the care. 58. Paragraph 50 and 51 of the ALJ’s Recommended Order of January 17, 2013, find: 50. AHCA has established by-clear and convincing evidence that Hillandale has failed to provide a safe and decent environment free from abuse and neglect and has failed to treat its residents with consideration and respect and with due recognition of personal dignity and individuality. Hillandale failed to mo ensure that its residents were not abused by either = other residents or staff members. Hillandale’s i - administrator [John Ross] failed to appreciate the significant vulnerability of its residents when : screening potential new residents and then failed to implement staff training to ensure a safe environment, §§ 429.14(1) (a) and (e); 429.19 (2) (a} and (5); and i i i t | Page 36 of 40 | ] | i 429,28 (1) (a) and (b), Fla, Stat. 51. AHCA has established by clear and convincing evidence that Hillandale’s participation in the state Medicaid provider network’ has been terminated, §408.815(1) (a). . 59. Each of Counts I and IT of this administrative complaint are individually the Respondent’ s intentional or negligent acts materially affecting the health or safety or welfare of a resident of Respondent's assisted living facility, for purposes of §§ 408.815 (1) (b) and 429,.14(1) (a), Fla. Stat., each count individually providing the Agency with a ground to revoke Respondent’ g license as an assisted living facility. 60. Each of Counts I and II of this administrative complaint are individually the ‘Respondent's violations of Chapter 429, Part I, Fla. Stat., or Rule Chapter 58A-5, Fla. Admin. Code, ox both for purposes of § 408, 815(1)(0), Fla. Stat. , each count individually providing the Agency with a ground to revoke Respondent’s license as an assisted Living facility. . | 61. Count x, together with paragraphs 55 through 58 of this administrative complaint are a demonstrated pattern of deficient performance for purposes of §. 408.815(1) (d), Fla. _ Stat. “Specifically, Respondent has repeatedly failed to provide a safe and decent environment free from abuse and neglect and has failed to treat its residents with consideration and respect and with due recognition of personal dignity and individuality, Page 37 of 40 thus providing the Agency with a ground to revoke Respondent’ s license as an assisted living facility. _ 82. . As set forth in above paragraph 58, the Respondent was , terminated from the State.of Florida’s Medicaid program, thus | providing the Agency with a ground to revoke Respondent’s ‘ License pursuant to 5 408. 8151) (e); Fla. stat. 63. Bach of Counts I and II of this administrative complaint are individually the Respondent's class I : deficiencies, for purposes of § 429.14(1) (e), Fla. Stat., each count individually providing the Agency “with a ground to revoke Respondent’ s license as an “assisted living facility. 64. Count II of this administrative complaint demonstrates that due to the on-going, over nine months long bedbug infestation of Respondent’ s assisted living facility,’ Respondent cannot furnish documentation of a satisfactory sanitation inspection of the facility by the county health department, a requirement for license under § 429,11(5), Fla. Stat., thereby furnishing the agency with a ground to revoke Respondent's license pursuant to § 429,14(1) (h) and (k), Fla. Stat. 65. Count I, together with paragraphs 56 through 58 of this administrative complaint are two or more class I violations - that are similar or identical to violations identified by the agency during a survey, inspection, monitoring visit, or complaint investigation occurring within the previous 2 yeara, Page 38 of 40 ween eet for purposes of § 429,14(4), Fla. Stat, requiring that the ‘Agency revoke Respondent's License as an assisted living facility. . Specifically, by the Agency’s surveys of May 28 and June 1 and 6, 2011, the Agency identified two Class I violations due to Respondent’ s: failure to provide Respondent’s residents with a safe and decent environment free from abuse and neglect, ° and Respondent’s failure to treat its residents with consideration and respect and with due recognition of personal - dignity and individuality, as set forth in above paragraph 56, 57 and 58. As set forth in Count I of this: administrative complaint, by the Agency's suxvey or April 29 and 30, 2013, the Agency has again identified a Class I violation due to Respondent’ s failure to provide Respondent's residents with a . safe and decent. environment free from abuse and neglect and Respondent's failure to treat its residents with consideration and respect and with due recognition of personal dignity and individuality. Since the Agency’s survey of April. 29 and 30, 2013, is within two years of the Agency's surveys of May 28 and gune 1 and 6, 2011, the Agency is statutorily requixed to revoke Respondent’ s license as an assisted living facklity. ) WHEREFORE, the Agency intends additionally to revoke . Respondent's license as an assisted living facility in the State. of Florida. NOTICE OF RIGHTS Page 39 of 40 Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set. out in the attached Election of _ Rights. All requests for hearing shall be made to the Agency for Health Care Administration and delivered to Agenoy Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg. #3, MS #3,. Tallahassee, FL 32308, whose telephone number is 850-412-3630, RESPONDENT IS FURTHER NOTIFIED THAT THE WALLURE TO REQUEST A. HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. CERTIFICATE OF. SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing will ba served by Personal Service on the day and date indicated on the Return Service Receipt to Hillandale Assisted Living, 6333 Langston Avenue, New Port. Richey, Florida 34652. Assistant General Counsel Fla. Bar. No, 817775 Agency for Health Care Administration .525 Mirror Lake Drive, 330D St. Petersburg, Florida 33701 727-552-1944 (office) 727-552-1440 (facsimile) james .harris@ahca.myflorida.com Copies furnished to: Paul Brown, HFE Supervisor, st. Petersburg Page 40 of 40 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Gene Cowles. and Amelia Cowles ; . . CASE NO. 2013005360 d/b/a Hillandale Assisted Living ‘ . This Election of Richts form is attached to a proposed action by the Agency for Health Care Administration (AHCA), The title may be Notice of Intént to Impose a Late Fee; Notice of Intent to Impose a Late Fine or Administrative Complaint. if your. Election of Rights with your selected option is not received. by AHCA within twenty- one (21) days ftom the date you received this notice of proposed action by AHCA, you will have. given up your right to contest the Agency’s proposed action and a final order will be issued, (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes (2006) and Rute 28, Florida Administrative Code.) - .PLBASH RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agenoy for Health Care Administration Attention; Agency Clerk - 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308, - Phone: 850-412-3630 Fax: 850-921-0158, OPTION ONE(1)___--_“ Lad mit to the allegations of facts and law contained in the Notice - Of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing, I understand that by giving up. my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action, OPTIONTWO(2)_- ss Tadmit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative ‘ Complaint, but I wish to be heard at aw informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show ‘that the proposed administrative action is too severe.or that tlie fine should be reduced, OPTION THREE (3)__'’ I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsestion 120.57(1), Florida Statutes). before an Administrative Law Judge appointed by the Division of Administrative Hearings. RELEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing, You also must file a written petition in order to obtain a formel hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes, . ie. Tt must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action, The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: » 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, ifany. ” ink 2. The file number of the proposed action, ; , 3. A statement of when you received notice of the Agency’s proposed action, me 4. A statement of all disputed issues of material fact. If there afe none, you must state that there are none. ; : _ Mediation under Section 120,573, Florida Statutes, may be available in this matter if the Agency agrees, License type: (ALF? nursing home? medical equipment? Other type?) ‘Licensee Name: . “__*____ License number. Contact person; oo ; Name Title Address:__- : . : Street and number City Zip Code Telephone No. Fax No, Email(optional) Thereby certify that J am duly authorized to submit this Notice of Blection of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: a nts Title; Print Name: Late fee/fine/AC STATE OF FLORIDA FILED "AGENCY FOR HEALTH CARE ADMINISTRATION + AHCA Agtucy CLERK STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, a NB APR Ib A Guy, Petitioner, : DOAH CASE NO. 11-3721 AVICA NOS, 2011006466 Y¥, . - —* 2011006798 LICENSE NO. 10549 GENE COWLES AND AMELIA.COWLES FILENO. 11966321 d/bla HILLANDALE ASSISTED LIVING, . FACILITY TYPE:. ASSISTED LIVING FACILITY Respondent, RENDITION NO: AHCA-(8- 3 SY-FOF-OLC FINAL ORDER This cause was teferred to the Division of Administrative Hearings where the assigned - Administrative Law Judge (ALJ), Lynne A. Quimby-Pennock, conducted a formal ‘administrative hearing, At issue in this case is whether Respondent committed the violations -alleged in the Amended Administrative Complaint, and, if so, .what penalty should be imposed. The Recommended Order dated January 17, 2013, is attached to this Finel Order and incorporated herein by referetice, except where noted infta. - BULING ON EXCEPTIONS The Petitioner filed exceptions to the Recommended Order, and the Respondent filed a ~ eal. response to Petitioner's exceptions, In determining how to rule upon Petitioner’s exceptions and whether to adopt the ALJ’s Recommended Order in whole or in part, the Agency for Health Care Administration (“Agency” a or “AHCA”) must follow Section 120.57(1)(), Florida Statutes, which provides in pertinent part: The agency may adopt the recommended order as the final order of the agency, The agency in its final order may reject or modify the conclusions of law over _ which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such — conclusion of law or interpretation of administrative rule, the agency must state en Dee with particularity its.reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable ; than that which was tejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The-agenoy may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings‘on which the findings were based did “not comply with essential requirements of law... , , Fla, Stat. § 120.$7(1)(). Additionally, “[t]he final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed " portion-of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that-does not include appropriate and specific citations to the record.” § 120.57(1)(k), Fla,. Stat. In accordance with these legal standards, the Agency makes the following rulings on Petitioner's exceptions: In its exceptions, Petitioner takes exception to the ALJ’s recommended penalty, arguing that, in addition to the fine and survey fee imposed by the ALJ; Respondent's assisted living ‘facility license should also be revoked, The Petitioner asks the Agency to either increase the recommended penalty or remand the case back to the ALJ for further consideration of this issue, Respondent filed a response to Petitioner’s exceptions, arguing ‘that the exceptions were not in compliance with § 120.571), Fla. Stat., because they did not identify the portion of the recommended order to which Petitioner took exception by page number or paragraph and that there are no grounds for increasing the recommended penalty, The Agency rejects Respondent's first argument because in ‘the first numbered paragraph of Petitioner’s exceptions, Petitioner identifies the portion of the Recommended Order to which it was taking exception by both page | umber and paragraph in compliance with § 120.57(1)(0, Fla, Stat, ‘The Agency rejects Respondent's second argument because, as set forth below, the record suppor an increase in the ALPs recommended penalty to include revocation, Ih order to increase an ALJ's recommended penalty, the Agency must review the complete record and state with particularity its reasons for the penalty increase by citing to the record in justifying its action, § 120.57(1)(), Fla. Stat, CininilSusoe Stuns. Tiinng , Comin’a, v, Bradley, 596 So, 2d 661, 663 (Fla. 1992). A review of the complete record of: this case reveals, that. there | is ample record evidence supporting the revocation of Respondent's | assisted living facility license. ‘This evidence includes: | ‘= ‘Respondent had previously bsen: cited for failing to provide enough qualified staff to provide a safe living environment for its residents. See Paragraph 17 of the Recommended Order; Petitioner’s Exhibit 8. ‘s During’ an August 2010 survey, the Agency found three instances in which a resident had been injured. and the injury was not properly reported by Respondent. See Paragraph 18 of: the Recommended Order; Transoript, Volume I, Pages 95-96 and 99-109; Petitioner’s Exhibit 13, 14 and 15, - Respondent aliowed a resident with a known propensity towards violence to continue to’ reside at its facility after the resident had struck another resident, See: Paragraphs 19 through 23 of the Recommended Order; Transcript, Volume TI, © Pages 170-182; Petitioner's Exhibits 18, 19 and 20. - Respondent failed to properly report inappropriate behavior "exhibited by one of its employees towards a resident. The employee later engaged in sexual’ conduct with the same resident. See Paragraphs 26 through 33 of the Recommended Order; Transcript, Volume I'V, Pages 420-433. This evidence demonstrates that solely imposing a fine and survey fee in this case would not provide adequate protection to the health, safety and welfare of Respondent's residents. - Respondent cates for a very vulnerable segment of Florida's population: young persons with mental arid physical problems. Respondent has demonstrated that-it cannot adequately. care for such residents and safeguard them from harm. Thus, Respondent should no longer ‘be allowed to have its license, The ALJ concluded, and neither party has disputed, that Respondent failed to provide a , - safe and decent environment free from abuse and neglect and failed to treat its residents with - cotislderation and respect and with due recognition of personal dignity and indivieluality in violation of § 429.28(1)(a) and (b), Fla, Stat. See Paragraph 50 of the Recommended Order. Also, Respondent was terminated as a Medicaid provider, which i is grounds for revocation or denial of licensure under §. 408. 815(1)(e), Fla, Stat. See Paragraph 51 of the Recommended Order. As stated in the Amended Administrative Complaint, these violations. give the Agency the authority to revoke Reapondent’s assisted living facility pursuant to § 429.14(1)(e)L., Fla. Stat., for having been cited for one or more Class I defictensies, and pursuant to § 429, 14¢1)09 Fla. Stat. for having conimited an act constituting a ground upon which an application for licensure may be denied. See Paragraph 60 of" the Amended Administrative Complaint Therefore, the Agency’ grants Petitioner's exceptions to, the ALJ’s Recommended Penalty. In ‘addition to the fine aod survey fee impased by the ‘ALJ, the Agency hereby ‘imposes the additional penalty of revocation of Respondent's assisted living facility license, Because the Agency finds that it has grounds to increase the ALJ’s recommended penalty, it denies the Petitioner's motion for remand as moot. FINDINGSOR FACT The Agency adopts the findings of fact set forth in the Recommended Order. IO) LAW The Agency adopts the conclusions of law set forth in the Recommended Order. ORDER __ 1. The Agency's Amended Administrative Complaint is UPHELD and the above- ; named Respondent's license is REVOKED. 2, Additionally, 2 $20,000 fine-and $1;000 survey fee are hereby imposed, Unless payment has already been made, payment in the amount of $21,000 is now due from the Respondent as a result of the agency action, Such payment shall be made in full within 30 days ‘of the filing of this Final Order. The payment shall be made by check paryable 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, Mail Stop #14, Tallahassee, FL 32308. 3. In onder to ensure the health, safety, and welfare of the Respondent’s clients, the revocation of the Respondent's license is stayed for 30 days from the filing date of this Final Order for the sole purpose of allowing the safe and orderly discharge of clients, § 408,815(6), Fla, Stat, The Respondent is prohibited ftom accepting any new admissions during this period and must immediately notify the clients that they will soon be discharged, The Respondent must comply ‘with all other applicable federal and state laws. At the _ conclusion ‘of the stay, or upon the discontinuance of operations, whichever is first,.- the Respondent shall promptly return the license certificate which is the subject of this agency action to the sopropeino licengure unit in Tallahassee, Florida, Fla, Admin. Code R, 59A- 35, 040(5). 4, In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. ’ 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. . 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes, ‘The Respondent should also’ consult the applicable authorizing statutes and administrative code provisions. The Respondent is-notified that the cancellation of an Agency license may-have ramifications potentially affecting accrediting, third party billing including but.not limited to ‘the Florida Medicaid program, and private contracts.. ORDERED in Tallahassee, Florida, oni this _/&- day of pret 2013, , 7 RLZABETH DUDEK, Secretary AGENCY FOR. ALTH CARE ADMINISTRATION - | Agenoy for Health Care Admninistration 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 1 CERTIFY that a true and correct copy of this Final Order was served.on the below- tamed, perso by the method designated on this /G4*"~day of Agen) 2013, ° et eee : RICHARD J, SHOOP, Agency ( AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, MS #3 . - Tallahassee, Florida 32308 Telephone: (850) 412-3630 Copies furnished to: Tari Mills Facilities Intake Unit Agency for Health Care Administration Shaddrick A. Haston, Unit Managet Assisted Living Unit Agency for Health Care Administration Finance & Accounting Revenue Management Unit Pat Cautinan, Field Office Manager Area 5/6 Field Office . Agency for Health Care Administeation Katrina Derico-Harris ; Medicaid Accounts Receivable Agency for Health Care Administration James H, Harris, Esquire Assistant General Counsel Agency for Health Care Administration Shawn McCauley Medicaid Contract Management so Agency for Health Care Administration (slectronio Mail) t Geng Cowles and Amelia Cowles Hillandale Assisted Living 6333 Langston Avenue New Port tRichey, Florida 34652 ee Augustine Smythe Weekley, Esquire Weekley Schulte Valdes, LLC 1635 North Tampa Street, Suite 100 Honorable Lynne A. Quimby-Pennack Administrative Law Judge Division of Administrative Hearings The DeSoto Building Tampa, Florida 33602. 1230 Apalachee Parkway (U.S. Mail) Tallahassee, Florida 32399-3060 (Electronic Filing) | NOTICE OF FLORIDA LAW - 408.804 License required; display.-- (1) Ttis unlawf to provide services that require licensure, or opersie or 1 maintain a provider that offers or provides services. that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider, . (2) A license must be displayed in a conspicuous place really visible to clients who enter at the ‘address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily, The " Hicense is valid only for the licensee, provider, and location for which the license is issued, 408,812 Unlicensed activity, “- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from - the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license, (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes. harm that materially affects the health, safety, and welfare of clients. The agency or any state attomey may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing ntatutas and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. oe 3 t $1,000 for sach day of noncompliance. (4) Any person or entity that fails to cease Operation after agency notification may be fined ~ , (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 pet day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation, ! : (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of -the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules, (7) Any person aware of the operation of an unlicensed provider miust report that provider to the agency, j meso nereenenenameenasts “STATE OF FLORIDA é 3 . DIVISION OF ADMINISTRATIVE HEARINGS MP Ate sit! aan AGENCY FOR HEALTH CARE m0 a 19 A ¥a ADMINISTRATION, Petitioner, vs. . Case No. 11-3721. ) } ) ) ) | GENE COWLES AND AMELIA COWLES;. ) d/b/a: HILLANDALE. ASSISTED ) LIVING, } ) Respondents. ) ) RECOMMENDED ORDER Pursuant to notice, on September 18 through ai, 2012, a: formal hearing in this cause was held. in New port Richey, Plorida, hefore Administrative. Law Judge Lynne A. Quinby-Pennock of the Division of Administrative Hearings (Division) . - APPEARANCES For Petitioner: James H. Harris, Esquire : Agency for Health Care Administration The Sebring Building; Suite 330D 525 Mixror’ Lake Drive, North St. Petersburg, Florida 33701 For Respondents: Augustine smythe. Weekley, Esquire So Weekley Schulte Valdes, LLC © Suite 100 1635 North Tampa Street ! > Tampa, Florida 33602 i i ! | ee nie de ae STATEMENT OF THE SSUES Whether. Respondents committed the ‘violations alleged in the ae Amended Administrative Complaint, and, if so, what penaity should be imposed. | PRELIMINARY STATEMENT on June 27, 2011, Petitioner, Agency for Health Care Administration (ARCA) , issued a five-count Administrative Complaint (AC) against. Reapondents “Gene Cowles and Amelia . Cowles, d/b/a Hillandale Assisted. Living (Hillandale: or Respondents) . The ac alleged violations of varlous sections of chapters 408 and 429, ‘Florida Statutes (2010), and various ‘ Florida Administrative Code rules. Pursuant to sections 408, 815, 429.14, 429, 19, and 429. 49, AHCA is seeking $20,000.00 in fines, two survey fees of $500.00 each, and the revocation of. Hillandale’ 8 license. | . On July 15, 2014, Hillandale filed a Petition for Formal — : Administrative Hearing (Petition). . On July 26, AHCA referred the: _ Betition to the Division for a disputed-fact hearing and the issuance of a recommended order, A Notice of Hearing was issued setting the case for formal hearing on August 31, 2011. On August 12, a Joint Motion for . Continuance was filed. _ The hearing wag re-scheduled to . “November 16 through 18, 2011,. On October 28, another Joint Motion for Continuance was filed.?/ The continuance was granted. 2 In December 2011, AHCA filed a Motion to. Continue Case for Trial and Notice of Substitution of Counsel. ‘herein, AHCA noted that we the case had been continued twice, "the parties wish[ed] to continue to attempt to gettle," and there was insufficient time ; for a new AHCA counsel to prepare for the hearing. */ The case was re-scheduled to February 2012. On January 24,. 2012, AHCA filed an unopposed Motion to ‘Amend . Administrative Complaint. The motion was granted, and all future references will be to the Amended Administrative Complaint (ABC) filed with the Division on January. 31, 2012, ‘The AAC retained the same allegations as the original | AC; however, a new paragraph, nuitbered 61, was added that alleged a “demonstrated pattern of deficient performance" by Respondents. . On January 31, 2012, a Joint, Agreed Motion to Continue Case . for Trial was filed. Both parties expressed their continued. : ‘desire ‘to resolve the case via settlement. However, ‘both ‘parties had "undertaken [discovery] ‘in earnest," and additional time was. - needed to secure: the depositions of, witnesses for both parties and to complete the discovery. ‘Following one additional continuance, */ the parties were noticed for hearing on September 18 through 21, 2012. | AHCA presented’ the testimony oft Jill Sutter: Sergio Soto; Pamela Aromola; Katherine Benjamin; Sally H. Leonard; Patricia Duval Anderson; Jorge Juliab Villalba, M:D.; Gillian 3 Allane; and Patricia Reid Kaufman. °/ Ms. Kaufman also provided rebuttal testimony. -AHCA's Exhibits a through 20° and 22. ne through 56 were admitted into. evidence under seal. AHCA'S ixhibite 57 through 64” were also. admitted. AHCA's Exhibit 21 “was offered into evidence, and that ruling was reserved at hearing. Exhibit 21 is now admitted. During the hearing, Respondents made an oral motion to strike certain portions of ANCA's Exhibit 58, the deposition of . _ Me. Rice. That motion is hereby denied. HiLlandale presented the testimony of: Clarice T. Roberts; Marilyn Sue Ward, M.D.; Deborah A. Martinez, ‘registered nurse (R3N.)? and John Ross. Beverly Buchan reported to the hearing; however, she became 11k prior to being called. The parties agreed to ‘obtain Ms. Buchan’s testimony via deposition. — Hillandale's ixhibits 2 through 13," 16 through 30, 55a, 55b, 63, 10, 71, and 76 through 78” were admitted into evidence. At the conclusion of the hearing, the parties requested 30 days from the filing of Ms. Buchan's deposition in which to | submit: their respective proposed vaconmended orders (PROs) . The request was granted. .Ms. Buchan's deposition was filed on November’.19, 2012, and was admitted as Hillandale’s Bxhibit 79. The eix~volume Transcript of the proceeding was filed with the Division on October 12, 2012, sec eed Le we. Following the conclusion of the hearing, the undersigned, Petitioner's counsel, Respondents! counsel, and My. Ross, . . Ht Respondents’ representative, conducted a walk-through of the , Hillandale facility. No testimony was taken, nor was any descriptive commentary allowed; the participants simply walked * through the facility. On October 25, 2012, a Joint, Agreed Notion to Increase” Page Limit for Proposed Order, Rule 28- 106. 215, Pla. Admin. Code was’ filed. Therein, the parties requested that the ‘page limitation’ be increased to 80 pages per party. An Order was issued on October 29, allowing each paxty 50 pages in which to present its respective PRO. Rach party timely submitted its PRO, and each PRO has been considered in the preparation of this Recommended order ’ . BINDINGS OF FACT 1. at all times material hereto, Hillandale operated asia 24-bed Limited mental health care (LMHC), assisted living facility (ALF) located at 6333 Langston Avenue, New Port Richey, Florida. ‘ ‘Hillandale's license number is 10549. . 2.0 AHCA is the requiatory agency that has jurisdiction over Wi llandale, Pursuant. to chapter 408, Part II, and chapter 429,, Part I, Florida statutes (2022), and Florida. Raninistzative ‘Code’ Chapter 58A-5. 3. On dune 13, 2011, AHCA notified Hillandale by certified ‘letter that its Medicaid Provider Agreement in Florida was being terminated .2¥/ 4. Zero tolerance te a collective name "given to all of our. [Florida] state laws, administrative rules, policies, procedures, standards of care, et cetera, related to abuse, neglect and exploitation." Although initially instituted in response to reported sexual abuse instances, in either 2004 or 2005, the zero. tolerance initiative’ was expanded to include all forms of abuse, heglect, and exploitation involving persons with developmental disabilities. 5. . Caregivers for persons with. developmental disabilities “must be properly trained to assist dn. some of the most intimate a tasks. of daily living. Additionally, those caregivars must be aware of the reporting requirements for any known ox ‘“suepected abuse, neglect. ox exploitation. 6. Amelia Cowles isa co-owner, with her husband Gene Cowles; of Hillandale. Mrs. Cowles continuas to hold credentials to be an administrator of the ALP, At times when John Ross is not at the facility, Mrs. Cowles serves as its administrator, | 7. My. and Mrs. Cowles also own three other ALFs: Mapleway Community,: Ine. , 12/ in Safety Harbor, Florida, and Amelia's House . and 80 Place, both located in Pinellas Park, Florida. pNRO™’; zero tolerance!®’; and abuse, neglect, and exploitation.1® weed. @. Mr. Ross serves as the administrator for Hillandale and Mapleway. He has ‘served Hillandale since its opening in 2005. wie Mr. Ross has a high school diploma.™/ He does not have any ‘specdalized training in health care, but has some training in health care administration. "9, Mr. Baez provided direct care to residents at Hillandale, His exact length of service at Hillandale is unknown, although he was terminated in May 2011, Mr. Ross explained his reasoning for hiring Mx. Baez as, Mr, Ross "needed \ someone to york ‘there [Hillandale]," he (Mx. Baez) passed his background screening," he had a military background, he got. high recommendations, ‘he had done some work ina church, and . Mr. Baez's "pastor spoke very highly of him.” Mr. Baez did not have any health care-related. training prior to working at Hillandale. Mr. Baez may have had cardiopulmonary resuscitation " (CPR) training when he started at Hillandale, Mr. Ross updated Mz. Baez's CPR and provided the following training classes: first. aid; HIV and 4nfection control; major incident reporting; emergency disaster planning; food and nutrition; elopement ; / 10. Hillandale fixst opened its deors for operation in 2005, ‘he facility has approximately 12 sleeping rooms, two living areas, four pathrooms, a laundry room, a dining room, a - kitchen, a closet, and an office. Hillandale is laid out in two zones. The number of staff present ‘at any given time fluctuates based on the day and time and how many residents are present, ae During peak weekday periods (between 3:00 p.m. and 7:00 pom.), ‘there are three stafé members present. However, on the weekends, there are only two staff members present. il. Hillandale, along with its sister facilities (anelias House and Mapleway), has "Abuse Reporting" guidelines that require the following: The purpose of this is to establish ; “guidelines for reporting abuse. If [a]: Client has [an] active case worker. with the agency [sic] for. Persons with Disabilities it must be reported to them within 24 hours. AHCA has eliminated the adverse Incident ° requirement as of July 2009.. ‘the Florida Statutes on the reporting of Abuse 415.1034 ' Any person, anchuding, but not limited to, any: * ee 4. Nursing home staff; assisted living: ‘facility staff; adult day care center staff; . . . social worker; ox other professional adult care, : residential, or ‘institutional staff; * * * : ; who knows, or hag reasonable cause to | . suspect, that a vulnerable adult has been or ] .is being abused, neglected; or exploited shall: immediately report such knowledge or “suspicion to the central abuse hotline. “Abuse” means any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant ‘impairment to a vulnerable adult's physical, mental, or emotional - -health. . Abuse includes act and omissions. at "Sexual abuse” means acts of a sexual nature committed in the presence of a vulnerable adult without’ that person's informed consent. . . .. "Sexual abuse” does not include any act intended for a valid medical purpose or any act that may reasonably be construed to be normal caregiving action or appropriate display of affection. * * * "Caregiver": means a person who has been entrusted with or has assumed the © responsibility for ‘frequent and regular care of or services to a vulnerable adult on a temporary or permanent basis and who has a commitment, agreement, or understanding with. that person... that a caregiver role exist. "Caregiver" includes, but is not limited to, .. . employees and volunteers of facilities as defined in. ‘subsection (8)... ... Request, that the administrator be told of the report if filed with the hotline as soon as is possible. : - Revised July 2009 12. ° Hillandale caters to a youngér-age clientele who have mental health issues with cognitive impairments ox developmental disabilities. _ Bach of Hillandale's residents {at any given time. there could be 20 to 24 residents, also known aa clients) has a . variety of medical or psychological . conditions ineluding (but not’ limited to): autism: mental retardation; Asperger's; traumatic 8 ae ea is "the nature of the population that's being served." The brain injury; Down syndrome; ‘schizoaffectives post traumatic ‘stress disorder; bipolar; impulse control disorder; depressive disorder; mood disorder; attention deficit and hyperactivity _ isoxder; borderline intellectual functioning; low IQ; and/or seizures of various types. These residents are vulnerable - individuals, who need assistance in many aspects of daily living “we and need to-be kept safe ag they may be unable to act or react in ~ self~defense. ‘Vulnerable individuals may be unable to distinguish between right and wrong, good and bad, and/or . . Gangerous or innocent gestures or situations. 13. Since opening its doors in. 2005, there have been behavioral problems with the residents at Hillandale because. that ‘behavioral problems include: yelling; screaming? cursing; getting into other people's business; ‘elopement; and threats of .physical violence. This diversity in residents requires more oversight from ‘well-trained staff. ue All of these conditions are manageable, to some degree, when routines are established and adhered to. Hillandale's residents are considered vulnerable adults, Some residents are violent; others are slow or have conditions that cause them to react to new or different routines in unusual ways. The : ‘residents can be hurt during altercations, “10 ee 15. -The residents who are able to pexform their own activities of daily living do 80, and they axe allowed wide latitude in such. However, when another resident gets upset or bothered by either a change in routine or by someone! s words or gestures, a violent | outburst can erupt with fighting, hitting, and/or biting. ) 16. The Hillandale staff did not have ‘adequate training ¢ to manage the residents, other than moving them from one activity to another. 17. In 2007, an Administrative Complaint was, issued . alleging Hillandale had failed to provide enough qualified staff to provide a safe living envizonnent for the residents. Hidlandale was alleged to have violated the residents rights to | live in-a safe and decent living environment, free from abuse and neglect, and the residents were not treated with consideration, xespect, and due recognition of their ‘personal dignity. Hillandale ‘admitted the allegations, and, on January 3, 2008, “AHCA issued a Final Order finding that Hillandale was in violation of section 429.28(1) (a) and (b), Florida statutes (2007). An administrative fine was imposed as well as a fee for the survey. . “18. In August 2010, Katherine Benjamin was at Hillandale to conduct a survey. In conducting that eutyey, Ms. Benjamin reviewed several Facility Event Reports (reports). In each 4h report reviewed, .a resident had suffered some kind of injury, either self-inflicted or caused by another resident. These reports, when initially reviewed by the surveyor, did not contain documentation that the residents' health care provider, the residents! representative, . or their appropriate case workex: had : been notified. Further, the report form specifically directs ‘that the date and time that those persons were notified should be recorded, That. specific information was not present. ‘these , reports are required to bé completed by Hillandale staff to document what happened and how the events were resolved.” Ms. Benjamin found deficiencies in three different instances. Mr. Ross described the discrepancies as nezely "a paperwork problem" that’ was cortected. When other deficiencies or problema were pointed out by surveyors, Mr. Ross discounted, disputed or otherwise found fault with the surveyors ‘as opposed to accepting _ that there was or inight be a problem and embracing the Opportunity to improve the care, 19. In February 2011, L.?. became a vesident at Hillandale. Mr. Ross first met L.T, through PACT. ‘/ LT, suffered from mental ‘dliness, was about to turn 18-years old, and was about to age out of the foster care system. Although Mr. Ross testified ; that he had received a Large fax from FACT regarding L.T., Mr. Ross claimed that he. did not know of L.t."s propensity for violence. The fax included information that, in 2009, L.T. had "42 neta te at been fighting with his peers at school, had threatened or. stated “that he heard the devil tell him to hit his sister, and, in late ,, 2010, U.T.. was incazcerated on a charge of battery on the elderly (his foster father). Despite this information being available, . Mr. Ross, as Hillandale's administrator, admitted L.T. to , Hillandale without ‘appropriately accounting for L.T.'s propensity -for violence, 20. Mr, Ross learned that L.T. had struck a Hillandale resident in late February 2011, A mental health case manager was interviewing L.T. in the common area. Anothex resident, C.J., apparently felt compelled to ‘answer the questions for L.T. LT. took exception to C,d.'s. repeated interruptions of his interview, and, after C.J. pushed L.T., L.T. hit C.d. C.J. then called the police who arrested L.T, Although tir. Ross conducted the investigatdon,. he failed to obtain the name of or interview the mental health case manager who was with Lt. at the time. Mr. Ross attended the court hearings regarding L.7. 4,7. spent approximately 22 days in jail. Once he was released, L.T. returned to Hillandale. Mr. Ross felt he had dealt with the “situation by having C.J. leave Hillandale, as he felt she was the instigator. There was no evidence that this incident was _ ‘reported to the abuse hotline. 21. In April or May 2011, L.T. was accused of hitting or attempting to hit another resident, M.A. the police were called; 13 . yet, they declined to intervene becauge neither person was injured. Mr. Ross was "chewed out" by the police for this call. Mr, Ross believed he was. chewed out because the police were frustrated with the repeated calls from Hillandale residents for minor incidents. for which police involvement was not warranted. Mr, Ross. did not institute any new staff proceduzes to reduce or eliminate the unwarranted calls by residents to the police, , 22- Sometime in May 2011, L. .-T, started telling the Hillandale staff he did ‘hot have to ‘listen to them tell him (L. T,) what to do. Mr. Ross Goatacted FACT and asked ‘that FACT. | move LT, to another location. : 23, - Tn late May, prior to L.T. being moved, LT. was arrested for touching another resident, A, m. Hillandale staff witnessed Lif. slapping A.W. across ‘his face. L.T. was told to stop slapping A.W, and he refused. the police were called, and L, T. was arrested for battery. There was no avidence that ‘this: ' ineident was reported to the abuse hotline. 24. M.A. was initially a . reaident/client of Mapleway. Prior to ner admission to Mapleway, Mr. Ross. had reviewed M.A, ‘gs psychological: evaluation, psychological workup, and her discharge paper from: a crisis stabilization unit. . Mr. Ross accepted M.A. because the Mapleway staff had worked with similar individuals for approximately 15 years. M.A. suffers from mental retardation _ 14 - ye. 1 | | ween ol (autism) and is in her 20s, however, she acts like a person in. her teens. , : tak 25, ‘After approximately four to six months’ at Mapleway, M.A. transferred to Hillandale in early 2011, The stated reasons for transferring M.A. to Hillandale were for her to be with: people around her own age, and there were more staff to watch her, M.A. required a lot of attention. M.A. wanted or neaded a - Lot of attention. from the Hillandale staff because she had lots of questions and wanted answers. M.A. could not receive that kind of attention at the other facility. . - 26. Mr. Baez became a caregiver to M.A. on the day she- moved into Hillandale. Mr. Baéz was told that Moa. suffered fron autiem. - 27. In April 2011, Mrs. Cowles confronted Mr. Baez after -hearing from residents that Mr. Baez had kissed the resident, ‘M.A. Mrs. Cowles told Mr. Baez that he was not to kiss a resident again. Mr. ‘Baez conceded to Mrs. Cowles that he had kissed M.A. on the ‘cheek, "Like a child. " Mrs. Cowles did not , report her conversation with Mr. Baez to any abuse hotline as : required or to the ‘administrator, Mx. Ross, at the time of the confrontation, because she thought she had "take[n] care of the situation." ) 28. on April 27, 2011, Me. Ross conducted a meu staff meeting, " wherein Mr. Ross "restated the need for the client- 15 caregiver relationship to be respected and used the Zero Tolerance outline for bb [developmentally disabled] clients and let them [staff] know that this was to be taken very seriously." Specifically, Mx, Ross told Mr. Baez he needed to establish an appropriate boundary with. MOA, as she was interfering with Mr. Baez's wotk commitments. Mr. Baez did not ask or tell M.A. to do other things, and she continually followed Mr. Baez axound the Hillandale facility.. 29. On April 30, 2011, three days after this staff meeting with the zero tolerance inatruction, Mr. Ross suspended Mr. Baez from his -Hillandale employment for four days. The basis for the suspéensiion was Mr, Baez's inability to establish a proper boundary with MAL Mr. Ross testified he became aware that. Mr. Baez had kissed resident M.A. "just before" Mr. Ross suspended, Mr. Baez. . 30. tIt.is unclear when Mr. Baez's suspension actually - started or ended. However, Mr. Baez's scheduled days to work | were : Tuesday, Wednesday, Friday, Saturday, and Sunday, the 3300 p.m. "to 11:00 p.m. shift. Mz, Baez returned to. work on or after Thursday, May 5. 31. According to Mr. Ross, upon Mr. Baez's return to work: following the suspension, Mr. Baez was not allowed "ko work solo at any time." Additionally, Mr. Ross dizected other Hillandale ‘ staff members to watch Mr. Baez to make sure he respected the t 16 | ah boundary issues. Mr. Ross “had him [Mr. Baez] watched just to - sae about the boundary issue, and that was all." There was no ' evidence that additional staff were on duty to watch both the residents and Mr, Baez, possibly diminishing the staff's ability to ‘care for the residents, ) 32. On May 14, 2011, less than ten days ‘after serving a four-day suspension, Mr. Baez was terminated from his Hillandale employment . The basis for the termination was Mr. Baez's "failure to keep an appropriate boundary with her (MeA.) as far as the amount of. time he spent." The written iillandale report, created on May 4 by Mr. Ross when Mr. Baez was terminated; recorded that Mr. Ross was. told by other staff (at Hillandale) that Mr. Baez had been acoused of "having sex with a client [MsA.}." The report continued in part: [O]n May 14th a client made accusation I brought Orlando into the office and he said he was guilty of not setting the boundary and was not thinking clearly. He had also been talked with by two other staff members. (Joseph Costa and Erasmo Cintron) encouraging © him to set the boundary, he told me he did not listen as he did not. think it was that . -gerdous. I also asked him about photos of her on his phone he admitted he took them and had them[.]. I informed him that was a HIPPA violation and he needed consent from her guardian. All of this is a clear cut - violation, of facility policies and state guidelines of client care.. ; 33. Although Mr. Costa and Mr. Cintron jointly or individually advised Mr. Ross of the accusation, neither staff 17 took it upon themselves to contact the hotline until Mr. ‘Ross directed then to do ‘so... The staff may not have known specifics -of the alleged liaison; however, an “immediate” call to the hotline might have altered the course of events. The staff did ‘not have adequate training to handle the cixcumstance. 34, The termination of Mr, Baez's employment ended the possibility for Mr, Baez being a perpetrator, but the overall -lack of staff training persisted. (35. “As the owner of several ALia, including Hillandale, the Cowleses have been previously aware of the vulnerability of their clientele,’ In particular, in 2005, Richard Langston was an | employee at Mapleway vhen he was arrested and ultimately “convicted of lewd or lascivious molestation of a disabled adult. . The fact pattern of the Mapleway alnagation is similar to the alleged abuse herein. 36. Hillandale’ 8 abuse policy: (whch is ‘the same policy| for Mapleway) requires. specific reporting and documenting, yet Mrs. Cowles failed to follow that policy. CONCLUSIONS OF LAW 37. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to sections 120.569, 120.57(1), and 429.19, Florida Statutes, 18 38, In the instant case, AHCA has the burden of proving by . clear and convinaing evidence that Hillandale committed the ig violations as alleged and, if there are ‘yiolations,. the’ appropriateness of any fine resulting from the alleged violations. Dep't. of Banking & Fin., Div, of Sec. & Investor Prot. v. Osborne Stern &.Co., 670 So. 2d 932 (Fla.. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla.1987). 39. "In, Slomowitz v. Walker, 429. So, 2d 797, 800 (Pla. 4th DCA 1983), the court held that: Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and axplicit 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. | ; jo . 40, In pertinent part, rule 58A-5.0182 provides: An assiated living facility shall provide . care and services appropriate to the needs of residents accepted for admission to the facility. “WQ) SUPERVISION. ‘Facilities shall offer personal supervision, as appropriate for each resident, including: the following: * * * (b) 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. - 19 (c) General awareness of the resident's whereabouts. ‘The resident may travel independently in .the community. . Tg * * * (4) ACTIVITIES. OF . DAILY LIVING [ADL]. Facilities shall offer supervision of or assistance with activities of daily living as needed by.each resident. Residents shall. be encouraged to be as independent as possible _in performing ADs. * a x, (6) RESIDENT RIGHTS AND FACILITY PROCEDURES. _ (a) A copy of the Resident Bill of Rights » + « Shall be posted in full view in a freely accessible resident area, and included ‘. dn the admission package provided pursuant to Rule “§8A-5.0181, F.A.C, ok. * ot (e) “The facility shall have a written ~ statement of its house rules and procedures which shall be included in the admission package provided pursuant to Rule 58A-5.0181, “F.A.C. The rules and procedures shall. address the facility's policies with respect to such issues, for example, as resident. ' responsibilities, the facility's alcohol and tobacco policy, medication storage, the : delivery of services to residents by third party providers, resident elopement, and ‘other administrative and housekeeping practices, schedules, and requirements, * * * (g) The facility shall provide residents with convenient access to a telephone to facilitate the resident's right to unrestricted.and private communication, . pursuant to Section 429.28(1)(d), F.S. The . facility shall not prohibit. unidentified - 20 settee eb ee os 41, telephone calls to residents, For facilities with a licensed capacity of 17 or more residents in which residents do not have we private telephones, there shall be, at a minimum, an accessible telephone on each floor of each building where residents reside. 7 * * (9) OTHER STANDARDS. . Additional care standards for residents residing in a facility holding a limited mental health, . . . are provided in Rules 58A- 5.029, . . . F.A.C., respectively. In pertinent part, rule 58A-5,019(1) provides: ADMINISTRATORS. Every facility shall be under the supervision of an administrator who .is' responsible for the operation and . Maintenance of the facility including the . 42, following management of all staff and the provision of ‘adequate care to all residents as required by Part I of Chapter 429, F.8., and this rule chapter, Section 415.102, Florida Statutes, provides the | definitions: (1) "Abuse" means any willful act or threatened: act by a relative, caregiver, or ‘household member which causes or is likely to . cause significant impaizment to'a vulnerable ’ adult's physical, mental, or emotional “health. Abuse includes acts.and omissions, (2) " "Activities of daily living” means - functions and tasks for self-care, including ambulation, bathing, dressing, eating, grooming, toileting, and other similar tasks. * * * (19) "Protective investigation” means acceptance of a report from the central abuse 21 hotline alleging abuse, neglect, or exploitation as defined in this section; ; investigation of the report; determination as. a to whether action by the court is. warranted; and referral of the vulnerable adult to another public or private agency when appropriate, (20) "Protective investigator" means an authorized agent of the department who receives and investigates reports of abuse, heglect, or exploitation of vulnerable adults, (21) "Protective services" means services to protect a vulrierable adult. from further . occurrences of abuse, neglect, ox . exploitation. Such services may include, but are ‘not limited to, protective supervision, Placement, and in-home and community~based ‘services, m, (22) "Protective supervision" means those . services arranged for or implemented by the department to protect: vulnerable adults from further occurrences of abuse, neglect, or exploitation. . _* * * (25) | "Sexual abuse" means acta of.a sexual nature committed in the presence of a vulnerable adult without that person's informed consent. "Sexual abuse" includes, ‘ but ds not limited to, the acts defined in 8, 794.011(1) (h), fondling, exposure of a vulnerable adult's sexual, organs, or the use. of a vulnerable adult to solicit for or ; engage in prostitution or sexual parformance. "Sexual abuse" does not include any act intended for a valid medical purpose or any act that may reasonably be construed to be normal caregiving action or appropriate. display of affection. * * w 22 nC OE DOTS ORES i FE nn we eee Le ee, (27) "Vulnerable adult" means a- person ' 18 years’ of age or older whose ability to perform the normal activities of daily living ib or to provide for his or her own care or : protection is impaired due to a mental, . ‘emotional, sensory, long-term physical, or. . developmental disability or dysfunction, or 43. provides: brain damage, or the infirmities of aging. Section 429.28 (known as the Resident's 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: (a) Live in a safe and decent living environment, free from abuse and neglect. (b) Be treated with consideration and respect and with due recognition of personal ‘dignity, individuality, and the need for privacy. * ek {(d) Unrestricted private communication, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his or her ‘choice, at any time between the hours of 9.a.m. and 9 p.m. at a minimum. Upon xequest, the facility shall make provisions to extend visiting hours for caregivers and out~of-town guests, and in other similar situations. ’ * *¥ : * (J) Access. to adequate and appropriate health care consistent with established and recognized ‘standards within the community. 23 (k}) At least 45 days' notice of relocation or termination of residency from the facility on unless, for medical reasona, the resident is ik certified by a physician to require an’ emergency relocation to a facility providing ‘a More skilled. level of care or the resident engages.in a pattern of conduct that is harmful or offensive to other residents. ‘In the case of a resident who has been adjudicated mentally incapacitated, the guardian shall be given at least 45. days’ notice of ‘a nonemergency relocation ox. residency termination. Reasons for relocation shall be set forth in writing. In_ order for a facility to terminate the ; residency of an individual without notice as provided herein, the facility shall show good cause in a court of competent jurisdiction. * * * (6) The agency may conduct complaint investigations as warranted to investigate any allegations of noncompliance with requirements requixed under this part or rules adopted under this part. (4). The facility shall not hamper or prevent residents from exercising their rights as specified in this section. a ‘ (5) No facility or employee of a facility may serve notice upon a resident to leave the premises or take any other retaliatory action against any person who: ‘(a) Exercises any right.set forth in this section. . (b) Appears as a witness in any hearing, inside or outside the facility. (c) Files a civil action alleging a violation of the provisions of this part or ‘notifies a state attorney or the Attorney General of a possible violation of such ° provisiona. : 24 44, 45.. Section 429, 02 provides, in pertinent part: (5) "Assisted living facility” means any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, ‘which undertakes through its ownership or Management to provide housing, meals, and.one or more personal services for a period , exceeding 24 hours to: one or more adults who are not relatives of. the owner or administrator, Section 429.075 provides, in pertinent part: An assisted living facility that serves three ory more mental health residents must obtain a ‘ limited mental health license. (1) To obtain a limited mental health license, a facility must hold a standard . license as an assisted living facility, must not have any current uncorrected deficiencies — or violations, and must ensure that, within _6 months after receiving a limited mental health license, the facility administrator and the staff of the facility who are in direct contact with mental ‘health residents must complete training of no less than 6 hours related to their duties. Such designation may be made at the time of initial licensure or relicensure or upon . request in writing by a licensee under thie ; part and part II .of chapter 408 _Notification of approval or denial of such’ request shall. be made in accordance with this part, part II of chapter 408, and applicable rules. -This training will be provided by or approved by the Department of Children and Family Services. (2) Facilities licensed to provide services to mental health residents shall provide appropriate supervision and staffing to provide for the health, safety, and welfare of | such residents. 25 thie 46. Section 429,14 provides, in pertinent part: (1) In addition to the requirements of pe part II of chapter 408, the agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in chapter. 120 against ‘a licensee for a violation. of any provision — of this part, part IZ of chapter 408, ox applicable rules, or for any of the following actions by a licensee, for the actions af any . person subject to level 2 background screening under s. 408.809, or for the actions of. any facility employee: (a) An intentional or negligent act serlously affecting the health, safety, ox welfare of a resident of the facility. * oH * - (a) A citation of any of the following deficiencies as specified ins, 429,19: ‘1. One ox more. cited class I deficiencies, ' 2. Three or more cited class II deficiencies. . . ‘te * * (h) Failure of the license applicant, the licensee during relicensure, or a licensee ’ that holds a provisional license to meet the - minimum license requirements of this part, or -¥elated rules, at the time of license application or renewal. . . ek * ; ' (k) “Any act constituting a ground upen which a . application for a license may be denied. 47. Section 429.19. provides, in pertinent part: (1) In addition to the requirements of part II of chapter 408, the agency shall - 26 impose an administrative fine in the manner provided in chapter 120°‘for the violation of any provision-of this part, part II of ; . if. ‘chapter 408, and applicable rules by an assisted living facility, for the actions of any person subject to level 2 background screening under s. 408.809, for the actions Of any facility employee, or'for an - intentional or negligent act seriously affectirig. the health, safety, or welfare of a: resident of the facility. _ (2) Bach violation of this: part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents, _ The agency shall indicate the classification ‘on- the written notice of the violation as followa: - (a) Class "I" violations are defined in 8. 408,813. The agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation. ‘{b) Class "II" violations are defined in s. 408.813, The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not t exceeding $5,000 for each violation. \ k * : * (3) For. purposes of this section, in determining 1f a penalty 1s to be imposed and in fixdng the amount of the fine, the agency shall consider the following factors: {a) 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 liarm, and the extent to ‘which the provisions of. the applicable Laws or rules were violated. 27 ‘(b) Actions taken by the owner or administrator to correct violations. , . : : i. (c) Any previous violations. (a) The financial benefit to the facility of ‘committing or continuing the violation. (a) The licensed capacity of the facility. (4) Bach day of continuing violation after the date fixed for tarmination of the violation, as ordered by the agency, constitutes an additional, separate, and distinat violation. (5) Any action taken to correct a violation shall be documented in writing by the owner or administrator of the facility and verified through followup visits by agency personnel. The agency may impose a fine and, in the case of an owner-operated facility, revoke or deny a facility's license when a facility administrator fraudulently misrepresents. action taken to correct a violation, .(6) Any facility whose owner fails to apply . fora change-of-ownership license in - accordance with part II of chapter 408 and ‘operates the facility under the new ownership is subject to a fine of $5,000," - (7) 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 - ’ o£ the complaint or monitoring visits conducted under §. 429.28(3) (c) to verify the correction.of the violations. (8) During an inspection, the agency shall make a reasonable attempt to discuss each violation with the owner or administrator of the facility, prior to written notification. 28 . “4B. 49. - Section 408.815.provides, in pertinent part: (1) In addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a License or change of ownership application dnelude any of the following actions by a controlling interest: . (b) An intentional or negligent act materially affecting the health or safety of | a client of the provider. . (oc) A violation, of this part, authorizing ’ statutes, or applicable rules. (d) A demonstrated pattern of deficient ’ performance. (e) The applicant, licensee, or controlling interest has been or is currently excluded, suspended, or terminated ‘from participation in the state Medicaid program, the Medicaid program of any other state, or the Medicare . _ program. Section 408.813 provides, in part4nent part: As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an, administrative fine. (1) Unless the amount or aggregate limitation of the fine is prescribed by authorizing statutes or applicable rules, the agency may establish criteria by rule for the ‘amount or aggregate limitation of . administrative fines applicable to this part, authorizing statutes, and applicable rules. Each day of violation constitutes a separate violation and is subject to a separate fine. For fines imposed by final order of the agency and not subject to further appeal, the violator shall pay the fine plus interest at the rate specified in s. 55.03 for each day beyond the date set by the agency fox payment _O£ the fine. 29 tae (2) Violations of ‘this part, authorizing statutes, 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 deficiericy 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 sama client or clients have heen affected by repeated occurrences of the same deficient practice but the effect of the deficient practice 15 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 followa: — (a) 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 regult 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 30 we" .clted class I- ~violation. A fine shall be levied notwithstanding the correction of the — violation, (b). Class "II" violations are those conditions or occurrences related to the operation and maintenance of a provider ox to . the care of clients which the agency determines dizectly threaten the physical ox emotional health, safety, or security of the clients, other than clase I yiolations. ‘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, 50. AHCA has established by clear and convincing evidence that Hillandale has failed to provide'a safe and decent envizonment free from abuse and neglect and: has failed to treat its residents with consideration and respect and with due recognition of personal dignity and individuality, . Hillandaie failed to ensure that its residents were not abused by either other residents or staff members. Hillandale's administration failed to appreciate the significant vulnerability of its residents when screening potential new residents and then failed to implement staff training to ensure a safe environment. $§ 429. 14(1) (a) and (ee 429. 19(2) (a) and (5); and 429.28 (1) (a) and (b),;- Fla. Stat. 51. AHCA has establisted by clear and-convincing evidence that Hillandale's participation in the state Medicaid provider network has been terminated. § 408.815(1)(e), Fla. Stat. 31 oe he ee 52. Pursuant to sections 408.813(2)(a) and 429.19, an administrative fine of not less than $5,000. 00 and not exceeding = $10,000.00 shall be imposed for a Class I violation, even after | the condition or practice has been eliminated. The removal of a violent resident and the employment termination of a staff member "were warranted. < ' §3, Pursuant to section 429,19(7), the agency may assess a survey fee of $500.00 to cover the cost of conducting the investigation. RECOMMENDATION’ “4 Based on the foregoing Findings of Fact and Conclusions of _ Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding that. Gene Cowles and Amelia Cowles, . d/b/a Hillandale Assisted Living, violated sections 429.28 (1) (a) ‘and (b) and 408.815 (1) (e), imposing an administrative fine of $20,000.00, and assessing a survey fee of $1,000.00 ($500.00 for each investigation) associated with this case. -— 32 - DONE AND ENTERED this 17th day of January, 2023, in ‘Tallahassee, Leon County, Florida. fnbteliffeat LYNNE A, QUIMBY~PENNOCK 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. f1,us Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 2013. ENDNOTES Vv ‘this joint motion expressed that Respondents had secured different counsel for representation and needed additional time . '-to complete discovery. 2/ The second joint motion expressed that "The parties expect to amicably resolve their differencea raised by the Administrative | Complaint in a proposed Settlement Agreement" and that the parties were "actively pursuing settlement options" and had delayed additional discovery to seek a resolution. ” The original counsel for AHCA left the agency without notice, leaving the current counsel with little recourse other than to ask for additional time to prepare. Although Respondents objected to the continuance, the motion reflected that continued settlement discussions were being explored, to which Respondents did not object. af in circuit court for the enforcement.of a properly~noticed, non~ party expert witness who was scheduled for a deposition and failed to attend. The outcome of that action was not disclosed. 33 The last request for continuance was to allow AHCA to petition - 1 5’ Respondents had also Listed some of these witnesses for its own case-in-chief. To provide an orderly hearing flow and allow | Respondents the opportunity to elicit the direct testimony Of ‘i each witness, the undersigned allowed Respondents’ cross examination to go beyond Petitioner's dixect. ° penibit 12 indicates it is eight pages in length, and it is. However, the last sentence on the eighth page is incomplete, giving the impression that there was more to the document . V Bxhibits 57 through 61 include the deposition testimony of: Marilyn Ward, M.D.; Tom Rice; Rachel Agustines, M.D. Amelia Cowles; and John Ross, respectively, . Exhibits 63 and 64 are the depositions of Carmen Cintron and Erasmo cintron, respectively, * Hillandale's Exhibit 13, Mr. Ross employment file, has been tearranged in chronological order in order to follow his training and certifications. : % Hillandale's Exhibit 78, a not-to-scale sketch of the facility, was created at the hearing at the request of the undersigned. Both parties reviewed the sketch prior to its -admission into evidence, and a copy of the sketch was provided to both parties. | , an %/ All future references to Florida Statutes will be to 2012, unless otherwise. indicated. : ‘Vv the letter stated the agreement. would terminate 30 days after. the date of the letter. . On July 13, 2011, the agreement ended. 2) Mapleway Community, Inc., was referred to as Mapleway — throughout the hearing. , 1. tt is noted that several of Mr. Ross' training certificates or notification letters are addressed to "Dr. John Ross" ox: "John Ross, Ph.D." Between 2006 and February 2011, Professional Crisis Management wrote Mz. Ross no less than four letters addressing him as "Dr, Ross." In 2010, Vanguard Advanced Pharmacy Systems issued a continuing education certificate of attendance to "John Ross, Ph.D." These distinct designations ‘are unwarranted as Mr. Ross does not have the requisite education to © utilize the titles, . , 147 pyro was never defined. It is assumed to be "Do Not Resuscitate Order.” _ 34 8 rhe only certificate evidencing Mr. Baez's “zero tolerance . Sexual abuse prevention” is dated "November 30, 2008." ya. 1/ Several of Mr. Baez's certificates of completion, executed by Mr. Ross, contain his title as-"Dr. John Ross IT Trainers" “John Ross, Ph.D, Instructor," or "John Ross, Ph.D. Administrator ." These distinct designations are unwarranted, as Mx. Ross does not have the requisite education to utilize the titles. “/ Both parties asked witnesses abqut FACT. Neither party provided an overview of the services provided by FACT. The . undersigned finds that generally FACT is an organization that somehow facilitates services to and monitors progress of those | persons affected by significant mental health iasues in the Tampa Bay area. 4 tn his deposition, Mr. Ross responded "Five or six months" to the question of how long M.A. had been a resident at Mapleway. Yet, a moment later, Mr. Rosa recounted and stated "I don't ‘believe. I said six months" and instead stated "I believe I said four to five [months]" was how long M.A. was at Mapleway. _ COPIES FURNISHED: : Augustine Smythe Weekley, Esquire Weekley Schulte Valdes, LLC Suite 100 1635 North Tampa Street . Tampa, Florida 33602 James H, Harris, Esquire Agency for Health Care Administration The Sebring Building, Suite 330D 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 . Elizabeth Dudek, Secretary , Agency for Health.Care Administration - 2727 Mahan Drive, Mail Stop 1 — Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 35 Richard J. Shoop, Agency Clerk _ Agency for Health Care Administration . ‘ik 2727 Mahan Drive, Mail’ Stop 3. ‘ Tallahassee, Florida 32308 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS Ali 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. 36

Docket for Case No: 13-003111

Issue Date	Proceedings
Feb. 14, 2014	Settlement Agreement filed.
Feb. 14, 2014	(Petitioner's) Status Report and Renewed Motion to Relinquish Jurisdiction filed.
Feb. 14, 2014	Order Closing File and Relinquishing Jurisdiction. CASE CLOSED.
Feb. 14, 2014	Agency Final Order filed.
Jan. 22, 2014	Order Canceling Hearing (parties to advise status by February 14, 2014).
Jan. 21, 2014	Motion to Relinquish Jurisdiction filed.
Dec. 03, 2013	Order Re-scheduling Hearing (hearing set for January 30, 2014; 9:00 a.m.; New Port Richey, FL).
Dec. 02, 2013	Joint Status Report filed.
Oct. 22, 2013	Order Granting Continuance (parties to advise status by December 2, 2013).
Oct. 21, 2013	Joint Motion for Continuance of Trial filed.
Sep. 03, 2013	Notice of Service of Agency's First Set of Interrogatories, Request for Admissions and Request for Production of Documents to Respondent filed.
Aug. 27, 2013	Notice of Hearing (hearing set for November 6 and 7, 2013; 9:00 a.m.; New Port Richey, FL).
Aug. 27, 2013	Order of Pre-hearing Instructions.
Aug. 26, 2013	Joint Response to Initial Order filed.
Aug. 19, 2013	Initial Order.
Aug. 16, 2013	Administrative Complaint filed.
Aug. 16, 2013	Petition for Formal Administrative Hearing filed.
Aug. 16, 2013	Notice (of Agency referral) filed.

Orders for Case No: 13-003111

Issue Date	Document	Summary
Feb. 13, 2014	Agency Final Order