STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SENIOR LIFESTYLES, LLC, d/b/a, KIPLING MANOR RETIREMENT CENTER,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
/
Case No. 13-4660
RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted in this case commencing on February 25-26, 2014, and then reconvening on March 25-28 in Pensacola, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative
Hearings.
APPEARANCES
For Petitioner: John E. Terrel, Esquire
Law Office of John E. Terrel Suite 11-116
1700 North Monroe Street Tallahassee, Florida 32303
For Respondent: Richard Joseph Saliba, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
STATEMENT OF THE ISSUE
The issue in this case is whether there is sufficient cause for Respondent, Agency for Health Care Administration (AHCA or the Agency), to deny the licensure renewal application filed by Petitioner, Senior Lifestyles, LLC, d/b/a Kipling Manor Retirement Center (Kipling or the Facility), to continue operating a 65-bed assisted living facility (ALF) located in Pensacola, Florida.
PRELIMINARY STATEMENT
By way of a letter entitled Notice of Intent to Deny Renewal, dated September 6, 2013, the Agency notified Petitioner that AHCA would be denying Kipling’s renewal application for licensure. Kipling timely filed a Request for Administrative Hearing, which was forwarded to the Division of Administrative Hearings and assigned to the undersigned Administrative Law Judge. The final hearing was set for February 10-14 and 25-28, 2014, in Pensacola, Florida. Respondent filed a motion seeking to relinquish jurisdiction on the basis that Petitioner’s failure to do background screening for an employee was a violation of applicable laws. Respondent argued that because that violation had already been litigated in DOAH Case No. 11-4673 (in which Judge Staros recommended a fine for the violation), AHCA could in the present case again use that violation as a basis for denying
renewal of Kipling’s licensure application. The motion was denied.
Motions were filed concerning discovery disputes and were resolved by way of Orders. Kipling filed a motion for continuance and the final hearing was continued until
February 25-28. The final hearing was conducted on those days and then recommenced on March 25-28, 2014. Motions to compel and a motion in limine were filed and disposed of prior to recommencement of the final hearing.
At the final hearing, Kipling called six witnesses: Belie Williams, the owner and administrator of the Facility; Margaret Bonnell, RN surveyor; Brenda Golden, unit manager; Cathy Cristostomo, nurse consultant; Arnold Rosenbleeth, pharmacist; and Adrienne Taylor, assistant administrator.
Kipling’s Exhibits 1-3, 5, 10-12, 14-16, 18-19, 21, 23-25, and 35-36 were admitted into evidence. The Agency called 13 witnesses: Shadrick Haston, ALF manager for AHCA;
Belie Williams; Yvonne Andrews, nurse surveyor for AHCA; Peter Fedorovich, retired nurse surveyor; Elizabeth Dunn, activities director and assistant administrator at Kipling;
Carolyn Walton, nurse; Yahika Brown; Ferral Wendell, RN surveyor; Lela Jackson, health facilities evaluator; Peggy Hamilton, RN specialist; Norma Endress, RN surveyor; Anne Cone-Avery, acting ALF unit manager; and (in rebuttal), Laqueta Teamer. AHCA's
Exhibits 1-18 and Rebuttal Exhibits 1-2 were admitted into evidence.
Despite the parties’ representation at the conclusion of final hearing to the contrary, a transcript of the final hearing was ordered. Kipling had been given leave on the final day of hearing to take the deposition of nurse Betsy McCormick to submit in lieu of live testimony. The deposition was held, but Kipling opted not to offer the transcript into evidence “due to the actions of AHCA counsel during that deposition.” The parties were given until 10 days after the McCormick transcript was filed at DOAH to submit proposed recommended orders (PROs). After deciding not to submit that transcript, the parties requested and were allowed until May 30, 2014, to file their PROs. Upon AHCA’s request for a page limit extension for the PROs, parties were allowed a 75-page limit.1/ Kipling and AHCA each timely filed its PRO on May 30, 2014. Both parties’ submissions were duly considered in the preparation of this Recommended Order.
The final hearing in this matter was emotionally charged.
The denial of Kipling’s application for licensure renewal is tantamount to closure of the Facility. The Agency aggressively sought to guarantee compliance with all rules and regulations governing assisted living facilities, regardless of the ultimate impact on the residents. Kipling battled furiously to maintain its license without acknowledging its own shortcomings. Neither
party seemed willing to compromise, view the evidence objectively, or pursue resolution; there was instead an air of all-out war during this entire proceeding.2/ The actions of both counsel in this proceeding brought to mind these words contained in the Oath of Admission to the Florida Bar: “To all opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications. I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged.” That being said, the following Findings of Fact are made from the evidence presented at final hearing. It must be noted, however, that the evidence presented was not extremely helpful in making a final determination of the facts in this case. Most of the evidence addressing the surveys at issue was unsubstantiated hearsay, without competent supportive evidence. For example, the various survey reports contained statements that a surveyor was told by a resident or facility employee that some thing or another occurred at some point in time. Surveyors made conclusory findings concerning “facts” on the basis of what they found (or did not find) in documents. Subjective standards of neatness or cleanliness were imposed without any base-line determination. Kipling’s witnesses offered perfunctory statements which lacked credibility.
All-in-all, the evidence did little more than provide a general basis for each party’s position rather than evoke a clear understanding of what circumstances actually existed.
FINDINGS OF FACT
Kipling is a 65-bed assisted living facility located at 7901 Kipling Street, Pensacola, Florida. It has been in operation for approximately 20 years and is licensed by AHCA as an assisted living facility with a limited mental health license and a limited nursing services license. Kipling is an older facility and its residents are some of the hardest residents to place, i.e., many are homeless, have serious mental illnesses, and do not have money to pay for amenities and extra care. As described by a former assistant administrator at Kipling,
“[The residents] are a very tough bunch. However, they are loving. They don’t always communicate as well as you and I do. At times they’re – they have internal stimuli. They hear things and see things that aren’t there. They don’t have the full grasp of why they have to be there, their illnesses and what are, . . . that they may be doing wrong, if they’re not clean, they’re not taking a bath, they don’t understand why they have to do that or they don’t have the internal stimuli telling them not to do that. But, overall, you know, the residents are very happy and loving, unless they are agitated, which comes with mental illness.”
(Elizabeth Dunn, Respondent Exhibit 18, pp. 18-19)
AHCA is the state agency responsible for licensing and monitoring assisted living facilities in this State. As part of
its duties, AHCA makes a determination whether applications for initial licensure or license renewal should be approved. Such determinations are made, in part, based upon findings made by Agency surveyors who visit facilities to inspect and monitor compliance with regulatory guidelines. Surveyors make findings as to what they observe at the specific point in time during which their investigation is conducted. Their observations and interviews with staff and residents are reduced to writing in AHCA Forms 3020 or 5000, the Statement of Deficiencies report.
On June 25, 2013, Kipling filed an application for renewal of its operating license. The application was filed timely with AHCA. AHCA found there to be three items missing from the application: 1) There was an outstanding balance of
$47.35 due on a fee; 2) There was no current fire safety inspection report; and 3) There was no fictitious name registration.
Kipling responded to the omissions letter and all three outstanding items were presumably provided to AHCA (although no evidence to that effect was presented at final hearing). AHCA did not assert that failure to provide those three items constituted a basis for its decision to deny the licensure renewal.
On September 6, 2013, AHCA issued a Notice of Intent to Deny Renewal, advising Kipling that its renewal application was
being denied. The stated basis for the denial was “the applicant’s failure to meet minimum licensure standards pursuant to 408.815(1)(d), Florida Statutes.” That statutory section states in pertinent part: “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: . . . A demonstrated pattern of deficient performance;
. . .” The Notice then listed a number of surveys that had been conducted at the Facility and the general findings therein.
On October 15, 2013, AHCA issued an Amended Notice of Intent to Deny Renewal Application. The Amended Notice included information from two surveys which had been conducted after the date of AHCA’s first notice of denial. The Amended Notice cited as “legal grounds for the denial of the renewal application” three distinct bases: 1) Violation of the Health Care Licensing Procedure Act; 2) A demonstrated Pattern of Deficient Performance; and 3) A failure to comply with the Background Screening Standards.
At final hearing, the Agency presented evidence of alleged deficiencies at Kipling during ten inspection surveys conducted over the past three years. The surveys, which will be discussed individually below, are identified by the following dates (although some of the surveys lasted more than one day):
February 17, 2011; February 1, 2012; June 11, 2012; October 26,
2012; December 19, 2012; March 14, 2013; April 24, 2013;
August 8, 2013; September 18, 2013; and October 2, 2013.3/
AHCA is claiming a “pattern of deficient performance” by Kipling which, if proven, could establish a basis for not renewing the licensure application. The findings made in the ten surveys ostensibly form AHCA’s basis for the alleged pattern of deficient performance. AHCA’s findings in and Kipling’s response to each of the aforementioned surveys is set forth in more detail below. There are several different kinds of surveys performed by AHCA, but during each survey AHCA is generally looking for compliance with the same rules and regulations. A survey may be one of the following: A biennial survey, required for continued licensure as an ALF; a follow-up survey to determine if cited deficiencies have been corrected; a complaint survey based on allegations made by someone, usually anonymously and sometimes maliciously; or a re-visit, much like a follow-up survey.
February 17, 2011
This biennial survey, conducted almost two-and-a-half years before the Notice of Intent to Deny Renewal (and before Kipling’s current license was issued), resulted in a finding of seven Class III4/ (that is, potentially or indirectly threatening) deficiencies. Those deficiencies include:
The latest inspection report was not assessable to persons visiting the Facility.
Two bottles of over-the-counter medications used to treat constipation did not have prescribing instructions on them.
The same medication error as above, but cited under a different standard.
The Facility was using Lancets (tools for taking blood samples) which had expired.
There was no evidence that one employee had received required HIV/Aids training.
There was no documentation showing that one employee had received first aid training.
There was not a complete substitution log for meals.
Each of the cited deficiencies was corrected immediately or was otherwise cleared prior to the follow-up survey. As to the specific citations: 1) The inspection report was available in the administrator’s office on the date of the survey, but would hereafter be kept in the lobby area for easier access by interested persons. Kipling is a closed facility, so that anyone seeking entry must wait for the door to be unlocked. Such visitors could then request to look at the inspection report and it would be made available to them. However, the inspection reports could have been kept in the outer lobby area, which is accessible to the general public. 2) The over-the-counter medications should have been labeled to show which resident was
taking them, and at what times; that failure was a documentation issue rather than a medical issue. There was never any potential for harm to the resident. 3) The old Lancets were disposed of immediately; no explanation was given as to why outdated lancets were at the facility. 4) Documentation showing that each of the employees had the appropriate training was presented. 5) The prior food services director had taken the meal substitution logs, so they were indeed missing as of the date of the survey.
The logs are being redrafted by current staff. Note: A meal substitution log is simply a sheet of paper showing that the planned meal for that day was not going to be served. Rather, a substitute meal would be provided. This happened when the Facility was unable to acquire the foods listed in the original meal log. For example, if fried chicken was on the menu but the Facility could not purchase chicken that day, it might substitute beef for the chicken.
As this February 2011 survey was the first utilized by AHCA in this proceeding, it is presumed that some or all of the deficiencies cited therein form the basis for the alleged pattern of deficient performance. As set forth below, none of these cited deficiencies constitute the first instances of a pattern followed by Kipling.
At the same time the biennial survey was going on, two simultaneous surveys were being conducted by AHCA related to
Kipling’s Limited Mental Health license and its Limited Nursing Services license. Those surveys resulted in no findings of deficiencies.
February 1, 2012
Seven deficiencies were found by AHCA during this complaint survey. Each of them was a Class III, and each had been corrected by the time of the revisit survey the following month. The cited deficiencies were:
The Facility failed to provide supervision or assistance to four of 16 sampled residents (according to statements allegedly made by some residents and family members to the surveyor – although there was no valid corroboration for these hearsay-based findings). One example given was that a particular resident had not had a shower in over a month, according to the resident’s statements;
The Facility failed to act on the grievances or complaints of seven of 18 sampled residents, but again there was no competent and substantial evidence to support this allegation;
A medication technician rather than a nurse assisted a resident with taking medications;
There were incorrect medication observation records (MORs) for two of six sampled residents;
Medications needed by some identified residents were not in stock;
The heat in one resident room was not working properly, and washers and/or dryers were not working at one point in time; and
Medications were documented as having been given, but were not in fact given.
Note: None of the deficiencies in the prior (February 1, 2012) survey were repeated in this survey.
The Facility corrected each of the seven deficiencies within the time prescribed by AHCA. In direct response to the cited deficiencies, however, the Facility stated that:
1) Kipling has a bath schedule for its residents. Many of them simply choose not to bathe and the Facility cannot force them to do so. 2) There are no confirmed instances of resident complaints being ignored. 3) It may be that a medication technician--rather than a nurse--assisted one resident with his/her medications. While improper, the technician was conscientiously attempting to make sure the resident received his/her medication. 4) The medication issues surrounding one of the residents existed because the resident was under hospice care. Once hospice became involved, medications fell under their purview rather than being administered by Kipling’s staff. The evidence was unclear as to whether any or all of the cited errors were because of the resident’s status as a hospice patient. 5) It was difficult to ascertain from the evidence whether the medication errors alleged actually existed. There was scant non- hearsay evidence provided to make a legitimate determination of whether an error was made. 6) The facility is old, and it is
probable that there could be heating or cooling issues in some rooms. Nonetheless, all identified issues were addressed immediately. 7) There were errors on the MORs forms for some residents.
There were, as in the prior survey, citations concerning medication errors. The deficiencies were not exactly the same, though some fell under the umbrella of “medication deficiencies.” Based upon the kind of residents being served at Kipling and the pool of available employees willing to work there, it is not surprising that such errors occurred.5/
June 11, 2012
During this complaint survey only one deficiency was cited, a Class III. It had to do with cleanliness of the Facility in general, with four rooms specifically mentioned. The Agency found that Room 22 had a strong odor; Room 23 had a “fist- sized break” in the door and the ceiling vent was hanging down; the vent in Room 18 was missing; and Room 6 had missing baseboards. These deficiencies, euphemistically listed as “environmental” concerns, are to be expected in a facility such as Kipling. They are not excusable and must be addressed--but they are not all that surprising.
By the time of the follow-up survey, the deficiency had been corrected. Meanwhile, the Facility provided information about each of the maintenance type deficiencies, to wit: The
resident in Room 22 used a bedside commode which was the source of the smell. The damaged door and ceiling vent were in the queue to be repaired at the time of the survey. The vent in Room
18 was replaced immediately upon discovery. (Some residents removed vents, window screens, etc., from time to time and they would have to be replaced when discovered.) The missing baseboards in Room 6 were due to the fact that a new vanity had just been installed and the old baseboards were found not to fit any longer. New baseboards had been ordered.
October 26, 2012
The Agency found two Class III deficiencies in the complaint survey conducted on this date:
Room 35 had a strong odor; Room #17 had an odor and a used adult diaper was found on the shower stool; and Room 26 had a dirty floor.
Room 20 did not have a vent cover over the exhaust fan; a common area bathroom had no vent fan or air conditioning vent cover.
Note: The missing vent covers were a repeat from the prior survey, although for different rooms.
Upon revisit, the deficiencies were not corrected. At the time of the second revisit, one deficiency had been corrected but not the other. At the last revisit, all items had been corrected.
The Facility has a full-time maintenance person who tries to keep up with repairs, but sometimes things get broken
faster than he can repair them. Further, some of the residents are destructive because of their mental illness, resulting in more physical plant problems than in other ALFs. This, coupled with the fact that this is an old facility, indicates that the existence of some physical plant issues is to be expected. These deficiencies confirm the difficulty faced by Kipling regarding its physical plant; they do not, however, constitute a pattern of deficient performance so much as they indicate slow responses to the problems.
December 19, 2012
On this complaint survey (which included a follow-up review from the October 26 survey), three additional Class III deficiencies were cited. There were two medication errors cited and one other deficiency:
Residents 13 and 15 were receiving medications which did not appear on the MOR; Resident 17 received Tylenol which was on the MOR, but for which there was no physician’s order. Also, as-needed (PRN) Tylenol tablets for Resident 15 were not in stock and neither was the PRN acetaminophen for Resident 17.
The other deficiency had to do with failure to file an adverse incident report when a resident had eloped. All of the deficiencies were ultimately corrected.
Note: The MORs deficiencies were similar to those cited in a prior survey.
The Facility explained that it is often difficult, because of the nature of the residents it serves, to keep up with
medications. Many of the residents are unable to fully communicate with their physicians, many are without any financial means of obtaining medications, many have had their medications reduced by governmental agencies upon whom they rely. Often a physician who is responsible for calling in the medications simply fails to act because their patients (the ALF residents) cannot or will not complain if nothing is done. Thus, the Facility does often receive citations for failures relating to medication issues. While such deficiencies may constitute repeated errors, they do not necessarily constitute a pattern of deficient performance due to the reasons behind the failures.
As to the elopement issue, the resident left the facility and went to his mother’s house. The facility failed to report the “elopement” because the resident was generally allowed to come and go at will. However, he was supposed to sign out each time he left and returned, but did not do so this time. While the resident did not truly “elope” from the facility, his failure to sign out should have been noted and technically constituted a deficiency.
AHCA also cited Kipling for some physical plant deficiencies during this survey:
The window screen in Room 2 was missing;
Room 6 had “very dirty floors” and a noxious chemical odor;
Room 12 had dirty floors;
Room 14 had dirty floors and the bathroom door frame had rust on it;
In Room 18 the bathroom shower area had a “large amount of black substance” on the shower walls and the room had an “earthy smell” to it;
Room 20 has filthy floors and the toilet has feces stains around the lid;
Room 22 has a “receptor missing and the bed has a torn mattress”;
Room 25 had dirty pillow cases, dirty floors, and a portable urinal sitting near the bed had urine in it. There was also urine on the bathroom floor;
There were flies in Room 31 and 34; Room 34 “needs sweeping and mopping” and the air conditioner grill cover was missing;
Room 36’s window screen was missing and the closet door was broken;
Room 26 had a dirty floor and the room was cluttered;
Room 35 had dirty floors.
Note: Again some of the environmental issues had been cited previously, but as noted this was an old and poorly maintained facility.
These allegations by AHCA surveyors did not reflect whether the conditions found at the time of the survey had existed for a long period of time, what constituted “dirty” in the minds of the surveyors, or whether any explanation was given by the facility for the cited issues. Rather, the survey report
indicates that maintenance staff was made aware of the issues and would take care of each one as time allowed. Again, this older building, serving mentally unstable residents, is likely to experience some of these physical plant issues.
The facility has a full-time maintenance person, plus two full-time housekeepers. Due to the nature of the individual residents (many with mental health issues), it is difficult to keep up with housekeeping demands. Each employee of the facility is charged with assisting in maintaining the facility to the extent possible.
March 14, 2013
On this biennial survey coupled with a revisit for past surveys, one Class III deficiency--concerning food service and dietary--was cited. The Facility provided a lunch of chicken alfredo, mixed nuts and a roll. However, the posted menu for that day indicated there would be ham and beans, cabbage, rice, and cornbread. The Facility simply failed to log the substituted meal on a substitution log.
On the re-visit portion of the survey, two Class II deficiencies were cited concerning resident care and medication issues:
One resident care issue had to do with the cleanliness, or lack thereof, of resident rooms, missing vents, etc.
Resident 1 was not receiving his Remeron; Resident 2 had an expired prescription for Lortab on a PRN basis, but the medication had not been reordered and was not available. Resident 13 was not given his mucinex on two different days and did not have lortisone cream applied between his toes twice daily as prescribed. Resident
14 did not have vitamin B-12 available as prescribed.
Kipling employs two full-time housekeepers to keep the rooms as neat and tidy as possible. The housekeepers do a “full scrub” on a certain number of rooms each day and a superficial cleaning of the others. All employees are expected to help keep the rooms clean. The urine odor in one room on the date of the survey was likely due to the fact that the resident had left a used adult diaper in the trash can. It was removed as soon as it was found. A missing closet door in one room was due to the resident’s preference; a missing dresser drawer in one room was remedied as soon as it was discovered. (Many of the residents at Kipling suffer from schizophrenia and other mental illnesses, so they are prone to mistreating the physical plant.)
The Facility explained that many of its employees are not conscientious and do not perform their duties as directed. The poor work habits of employees caused problems that the Facility tried to correct as quickly as possible. The best and most well-trained employees were hired by nicer facilities. As the place that accepted and cared for the lower stratum of
society, the Facility was only able to attract the least trained and less motivated individuals.
All medications were available and had been given as prescribed, according to the Facility’s DON. However, the assistant administrator admitted that Resident 1’s medication had been ordered but had not yet come in because the facility had difficulty dealing with Vanguard, the pharmacy. Thus, the medication could not have been provided to the resident on the day of the survey.
The citation concerning medication errors appears to be a legitimate deficiency in this instance. Kipling was required to correct those errors by the time of the follow-up survey, which it did.
April 24, 2013
This was a multi-purpose survey, including a follow-up or revisit survey. According to AHCA, the following deficiencies were found:
Resident 1’s MOR was not up to date;
Resident 2 did not have enough vitamin D available for his/her weekly dosage;
There was a mistake made with Resident 3’s medications after s/he returned from a hospital visit;
Resident 4 was given the wrong dosage of a medication; and
Resident 6 was getting the wrong dosage of some medications and some of his/her medications had been discontinued.
The facility disputed the claims by way of the following facts:
The MOR for Resident 1 was filled in retroactively by the appropriate person.[6/] The problem had been an irregular discontinuation notice used by Lakeview, one of many providers with whom the facility does business.
Although the MOR showed the vitamin D being given every day, that was an error. At the outset, only four days’ worth of vitamin D was ordered; the MOR should not have shown it being given every day. The MOR was corrected, but the AHCA surveyor refused to accept the corrected version or the explanation.
AHCA was correct in finding some errors occurred with Resident 3’s medications upon return from his/her hospital visit.
The proper medications for Resident 4 were attached to his/her admission form and signed by his/her physician.
The MOR for Resident 6 was in error, but the medication (Plavix) had been given appropriately. This was a documentation error only.
There were obviously some inconsistencies between the MOR, the appropriate dosages, and what medications some residents received. Those errors are an area of concern and should be addressed. The Facility showed, by competent and substantial evidence, that any and all such errors were corrected or
explained. Nonetheless, the medication errors are repeated deficiencies.
August 8, 2013
This was a complaint survey. Two Class II deficiencies were cited at this survey: Resident 4 did not receive required medications the first four days of his stay at the Facility. Resident 2 needed eye drops that were not available. Resident 1 needed Baclofen but there was none on the medication cart. A bottle was found in the resident’s closet.
The Facility was also cited due to an alleged scabies outbreak, but there is no credible evidence that a single case of scabies was confirmed among the residents. Nonetheless, all scabies-like rashes were treated with an appropriate cream. Several dozen residents had rashes of some kind (or shared a room with someone who did), so the facility treated them all. It is Kipling’s belief that a new clothes detergent could have been causing the rashes, but there was not any credible evidence to support that contention.
Resident 4 did not get his/her medications immediately upon admission; the nurse responsible for that mistake was terminated from employment.
Resident 1 received one of his medications in an improper dosage amount and another of his medications had run out. Also, one employee (a re-hire from prior employment at the
Facility) did not have proof that she had taken the two-hour Assistance with Medication training, which is required.
The surveyors also found a box of expired medications in the facility “hurricane room.” The medications should have been disposed of by sending them back to the pharmacy or via some other method. When the medications were discovered they were immediately disposed of, but the existence of the medications in the hurricane room constituted a deficient practice by Kipling.
September 18, 2013
This survey, which was conducted after Kipling’s license renewal had been denied, resulted in two Class II deficiencies.
This was a complaint survey. The survey remains “open” as the Facility still has an opportunity to correct and/or challenge the alleged deficiency.7/ AHCA cited one Class III deficiency having to do with how and when residents were evicted from the Facility. Although the resident’s admission contract indicates that 45 days’ notice will be provided, only 30 days’ notice was given to Resident 1. Resident 2 was also given an immediate termination notice, but still remained at the Facility at the time of the survey, some 33 days later. In each case, there were extenuating circumstances for the expedited eviction; in one case the resident was not paying his rent and in the other case the resident was bringing illegal substances into the ALF.
The Facility notes that this survey remains open and there has not been a final determination as to the cited deficiencies. The survey occurred after the denial of the licensure renewal application.
October 2, 2013
Two Class III deficiencies were cited at this follow-up survey. However, the survey remains open at this time.
A resident allegedly told an AHCA surveyor that s/he did not receive a medication (Lexapro) and another did not receive his/her Robitussin. One resident allegedly ran out of a medication (Ativan) and another was not receiving his/her medications (Combigan and Vigamox). One resident was not getting trazodone although it had been prescribed. However, there was no non-hearsay evidence to support these findings. Besides, Kipling explained that these residents were difficult to care for and did not have good relationships with their physicians. The Facility often found it difficult to get residents’ prescriptions filled timely.
Background Screening Issue
AHCA also cites Kipling for failing to properly conduct background screening on one of its employees. The employee in question was hired in April 2011. During a survey by the Agency in July of that year, it was determined that the employee had a disqualifying offense in his background. Kipling had not
initiated a background screening of the employee because, as a cook for the facility rather than someone working directly with residents, it did not feel the screening was necessary. Once his disqualifying offense was discovered, the employee was dismissed from employment with Kipling. The failure to obtain background screening for the employee was addressed in DOAH Case No. 11- 4643. In that case, ALJ Staros determined that the failure constituted a Class III deficiency; she imposed a fine of $2,000 (which was actually the total for two Class III deficiencies found during the survey, one of which was the background screening issue). The Recommended Order was adopted by the Agency in its Final Order.
Sanctions for the background screening deficiency have already been imposed and paid. There is no basis for any further penalty against Kipling related to that event. The facts of DOAH Case No. 11-4643 will not be revisited in the present Recommended Order.
Kipling offered into evidence a certificate for employee Yahika Brown showing that Brown had received a TB test from Sacred Heart Medical Group (SHMG). Brown testified that she never received such a certificate, but that she saw one with her name on it in the assistant administrator’s office. The assistant administrator, Adrienne Taylor, said that Brown brought the certificate to the Facility and gave it to her. The charge
nurse from SHMG, Laqueta Teamer, testified that the Brown certificate was a forgery. Teamer presented another certificate which had been issued to S—-S--, another former employee of Kipling. The S—S-- certificate was signed the same day by the same individuals and contained the same markings as Brown’s alleged certificate. There was no evidence in the SHMG files that Brown had been present at their office on the date stated in the certificate, nor could the nurse find Brown’s name in any of SHMG’s files. The greater weight of the evidence is that Brown’s certificate is fraudulent.
General Observations
It is patently clear that Kipling is not a pristine, state-of-the-art assisted living facility. The physical plant is old and severely abused by its residents. The competency level of many staff is extremely low, resulting in less effort being made to clean up the general messiness of the Facility. Many of the residents are on multiple medications and have little or no support from their treating physicians in maintaining their prescriptions.
The Facility staff often appears to operate in a shoot- from-the-hip fashion concerning its duties. There are multiple errors on the MOR documents; there does not seem to be a strong sense of concern or empathy between residents and staff; and many problems seem to be met with a shrug. The fact that the Facility
apparently falsified a certificate to indicate that one of its employees received a TB test that had not occurred is most concerning. It brings into question much of the testimony by some Kipling witnesses, especially Adrienne Taylor. Nonetheless, the owner and operator of Kipling seems to be genuinely willing to provide assisted living services to the most marginalized strata of humanity in the Pensacola area. That is to be commended, despite other negative actions.
Looking at the entirety of the evidence, the demeanor of the witnesses, and the corroboration (or not) of hearsay evidence, it is clear that the Facility has some on-going issues which must be addressed regularly. There is insufficient evidence, however, that a “pattern of deficient performance” exists concerning operation of the Facility.
CONCLUSIONS OF LAW
The Division has jurisdiction over the parties and subject matter in this case. § 120.57(1)(k), Fla. Stat. (2013). This proceeding is de novo. Id. Unless specifically stated otherwise herein, all references to Florida Statutes will be to the 2013 codification.
The burden of proof in this proceeding is on Kipling to prove that it meets the minimum standards for approval of its license renewal application. Dep’t of Banking & Fin. v. Osborne
Stern & Co., 670 So. 2d 932 (Fla. 1996). The standard of proof
for Kipling is the preponderance of evidence standard. Once Kipling meets that burden, AHCA then has a burden to prove, by clear and convincing evidence, that the allegations forming the basis of its denial are true.
The clear and convincing evidence standard of proof has been described by the Florida Supreme Court thusly:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
The denial of Kipling’s license renewal application is tantamount to revocation of its license to operate. In either case, the end result would be that Kipling would lose its license. “Where a statute provides for revocation of a license the grounds must be strictly construed because the statute is penal in nature. No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor of the licensee.” McClung v. Crim. Just. Stds. & Training Comm’n,
458 So. 2d 887, 888 (Fla. 5th DCA 1984).
AHCA’s denial letter states three bases for denial of Kipling’s license renewal application: A violation of the Health Care Licensing Procedures Act; A demonstrated pattern of deficient performance; and A failure to comply with the background screening standards. Those bases are set forth in the following statutory sections.
Section 408.815, which states 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 license or change of ownership applications include any of the following actions by a controlling interest:
* * *
A violation of this part, authorizing statutes, or applicable rules.
A demonstrated pattern of deficient performance.
Section 429.14, which states in pertinent part:
(1) In addition to the requirements of 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 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:
* * *
(f) Failure to comply with the background screening standards of this part, s. 408.809(1), or chapter 435.
Inasmuch as the Agency has already imposed sanctions against Kipling for its failure to properly initiate a background screening for its employee (see DOAH Case No. 11-4643), it is inappropriate and contrary to law to impose another penalty against the Facility based upon the same charge. And looking at the nature of the violation, i.e., a mistake as to the need for the screening in the first place and Kipling’s decision to dismiss the employee, there is no basis for such a draconian action as denial of the license renewal.
As for the “demonstrated pattern of deficient performance” allegation, while the Agency certainly established that the Facility has numerous licensure issues and is not operated as well as it should be, the deficiencies cited by AHCA do not indicate a pattern of deficient practice as much as they represent the nature of the on-going problems faced by Kipling in trying to serve its unique class of residents. It is clear from the evidence that the Facility will likely continue to experience problems with physical plant deficiencies as residents continue to abuse their living quarters. The errors and omissions in the MORs, however, could be corrected with proper training and due diligence. That being said, it must be recognized that Kipling
is unable to attract and retain better employees who would be more diligent about their record-keeping duties.
The term “demonstrated pattern of deficient performance” is not defined in rule or statute. There is no case law which can be relied upon to ascertain exactly what would constitute such a pattern. In AHCA v. W.T. Holdings, Case No. 95-0128 (Fla. DOAH Nov. 4, 1996), ALJ Parrish found a “pattern of deficiencies” to have existed. However, in that case, each of the deficiencies had been found to exist on the basis of final orders that had been entered, not simply upon the allegations set forth in a survey report. That case is distinguishable from the instant situation.
If this was a case that involved the finding of deficiencies and a determination of what sanctions to impose, it is likely the sanctions would be imposed commensurate with the violations which were proven. But this case contains an absolute--whether the license to operate should be renewed or
whether the facility would have to be closed. There is no way to establish a moderated or mitigated punishment. That being the case, it must be determined as a matter of law based upon a preponderance of the evidence whether Kipling met the basic requirements for licensure. It must also be determined by clear and convincing evidence whether Kipling engaged in a pattern of
deficient performance which would warrant denial of its license renewal application.
The evidence shows that Kipling had a number of cited deficiencies during the ten surveys conducted during a
two-and-a-half year time frame. It is evident that some of the deficiencies were repeated from time to time. Many of the deficiencies fell under the general category of “medication deficiencies.” However, not all of the deficiencies were similar in nature or could be called the same deficiency. The same can be said about the physical plant citations; they fell within the same umbrella term but were not all exactly the same. AHCA attempts to take numerous citations and make them the same based upon the tag number under which they are cited.
Upon consideration of all the evidence, although it is clear Kipling is a poorly operated and maintained facility, there is insufficient clear and convincing evidence to deny renewal of its application based upon a pattern of deficient performance.
It cannot be stated, as AHCA attempts to do, that the number of deficiencies constitutes a “pattern of deficient performance.” If that were the case, AHCA could simply cite as many deficiencies as possible and then conclude, ipso facto, that a pattern of deficient performance exists. This concept fails to
consider the nature of the deficiencies, whether the deficiencies were challenged as untrue, whether the facility was provided an
opportunity to contest the cited deficiencies as unwarranted,
etc.
Kipling is undeniably a substandard facility, compared
to other ALFs in the state system. However, considering the population it serves and the staff it is able to attract, that is not a surprise. Whether AHCA wishes to place Kipling on probationary status or otherwise put the facility on notice that further failures could result in loss of its license is within the Agency’s discretion. But there is not clear and convincing evidence that Kipling operated with a pattern of deficient practices as contemplated by the statute.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered by Respondent, Agency for Health Care Administration, rescinding its Notice of Intent to Deny Renewal Application.8/
DONE AND ENTERED this 10th day of June, 2014, in Tallahassee, Leon County, Florida.
S
R. BRUCE MCKIBBEN Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2014.
ENDNOTES
1/ Petitioner’s PRO was 51 pages; Respondent’s PRO was 55 pages.
2/ This fact was also evidenced by the parties’ proposed recommended orders. Each was so completely prejudiced in favor of their respective position and fraught with completely biased conclusory statements as to the facts, that it was hard to glean any helpful or objective arguments from them.
3/ Kipling’s licensure renewal application was filed June 25, 2013, meaning that its previous renewal application had been filed around June 2011. The first three surveys addressed by AHCA would have occurred prior to issuance of Kipling’s current license being issued.
4/ Deficiencies are assigned in one of three classes, which are described generally as follows: I – Deficiencies which present an imminent danger or substantial probability of death or serious physical or emotional harm; II – Those deficiencies which directly threaten the physical or emotional health, safety, or security of residents; III – The kinds of deficiencies which indirectly or potentially threaten the well-being of residents.
5/ AHCA went to great lengths to list the number of deficiencies within each area of interest investigated by surveyors. The presumed conclusion of that list is that a great number of deficiencies in any one area constitute, ipso facto, a “pattern of deficient performance.” The very nature of the survey process militates against such a conclusion; the areas of deficiencies are merely a guide for surveyors to follow so that they cover the entire spectrum of possible operations at an ALF. There is no provision in rule or statute that suggests that the number of cited deficiencies in any one area establishes a pattern of deficient practice. If that were the case, then those areas in which Kipling had fewer citations during later surveys would have to be deemed areas of exceptional performance.
6/ Kipling frankly admitted that the MORs were often corrected retroactively by staff. From the evidence presented, it is impossible to ascertain whether any or all of the corrections were legitimate updates or contrived falsifications.
7/ The “open” surveys are not pertinent to this proceeding. Inasmuch as the Facility still has an opportunity to challenge the survey findings, those findings cannot constitute competent, substantial evidence of a deficiency.
8/ The attitude of the attorneys in this case made it one of the more difficult hearings the undersigned judge has ever conducted. While strong client advocacy has a place, it can sometimes do more damage to the ultimate decision making process than is necessary. Although both counsel in this proceeding are competent professionals, and their efforts are commended, the animosity between them adversely affected their effectiveness in this case.
COPIES FURNISHED:
John E. Terrel, Esquire
Law Office of John E. Terrel Suite 11-116
1700 North Monroe Street Tallahassee, Florida 32303
Richard Joseph Saliba, Esquire
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308
Elizabeth Dudek, Secretary
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308
Stuart Williams, General Counsel Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 29, 2014 | Agency Final Order | |
| Jun. 10, 2014 | Recommended Order | Petitioner met burden of proof regarding entitlement to license; Respondent did not prove by competent and substantial evidence that Petitioner was guilty of a pattern of defective practice. |
