Petitioner: AGENCY FOR HEALTH CARE ADMINISTRATION
Respondent: RUDY'S AGAPE HOUSE, LLC
Judges: LYNNE A. QUIMBY-PENNOCK
Agency: Agency for Health Care Administration
Locations: Sarasota, Florida
Filed: Jun. 09, 2017
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Friday, September 1, 2017.
Latest Update: Oct. 31, 2017
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION
STATE OF FLORIDA, AGENCY FOR
HEALTH CARE ADMINISTRATION,
Petitioner,
Vv. AHCA Nos. 2017002836
Former License No. 10666
RUDY’S AGAPE HOUSE, LLC, File No. 11966465
Provider Type: Closed Assisted Living Facility
Respondent.
/
ADMINISTRATIVE COMPLAINT
COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration
(“the Agency”), by and through the undersigned counsel, and files this Administrative Complaint
against the Respondent, Rudy’s Agape House, LLC (“the Respondent”), pursuant to Sections
120.569 and 120.57, Florida Statutes (2016), and alleges:
NATURE OF THE ACTION
This is an action to impose an administrative fine of $12,500.00 against the Respondent,
Rudy’s Agape House, LLC, for closing an assisted living facility without providing the Agency
prior notice of the closure and discharging 15 residents from the assisted living facility without
providing the residents sufficient notice of the discharge.
PARTIES
1. The Agency is the licensing and regulatory authority that oversees assisted living
facilities in Florida and enforces the applicable state statutes and rules governing such facilities.
Ch. 408, Part II, Ch. 429, Part I, Fla. Stat. (2016); Ch. 58A-5, Fla. Admin, Code. The Agency
may deny, revoke, and suspend any license issued to an assisted living facility and impose an
administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing
statutes or applicable rules. §§ 408.813, 408.815, 429.14, 429.19, Fla. Stat. (2016). In addition
to licensure denial, revocation or suspension, or any administrative fine imposed, the Agency
may assess a survey fee against an assisted living facility. § 429.19(7), Fla. Stat. (2016).
2. The Respondent was issued a license by the Agency to operate an assisted living
facility (“the Facility”) located at 5426 18th Street West, Bradenton, Florida 34207, and was at
all times material required to comply with the applicable statutes and rules governing assisted
living facilities. The Respondent was licensed for this location until it voluntarily surrendered its
license to the Agency on March 13, 2017. In addition, in May of 2016, the Respondent was
issued a license by the Agency to operate a second assisted living facility (Rudy’s Agape House
II) at 2104 55th Avenue West, Bradenton, Florida 34207.
COUNT I
Failure to Provide the Agency Prior Notice of Facility Closure
3. Under Florida law,
(4) Whenever a licensee discontinues operation of a provider:
(a) The licensee must inform the agency not less than 30 days prior to the
discontinuance of operation and inform clients of such discontinuance as required
by authorizing statutes. Immediately upon discontinuance of operation by a
provider, the licensee shall surrender the license to the agency and the license
shall be canceled.
(b) The licensee shall remain responsible for retaining and appropriately
distributing all records within the timeframes prescribed in authorizing statutes
and applicable rules. In addition, the licensee or, in the event of death or
dissolution of a licensee, the estate or agent of the licensee shall:
1. Make arrangements to forward records for each client to one of the following,
based upon the client’s choice: the client or the client’s legal representative, the
client’s attending physician, or the health care provider where the client currently
receives services; or
2. Cause a notice to be published in the newspaper of greatest general
circulation in the county in which the provider was located that advises clients of
the discontinuance of the provider operation. The notice must inform clients that
they may obtain copies of their records and specify the name, address, and
telephone number of the person from whom the copies of records may be
obtained. The notice must appear at least once a week for 4 consecutive wecks.
§ 408.810(4), Fla. Stat. (2016).
4. Under Florida law, in addition to the requirements of part II of chapter 408, the
facility shall inform each resident or the next of kin, legal representative, or agency acting on
each resident’s behalf, of the fact and the proposed time of discontinuance of operation,
following the notification requirements provided in s. 429.28(1)(k). In the event a resident has
no person to represent him or her, the facility shall be responsible for referral to an appropriate
social service agency for placement. § 429.31(1), Fla. Stat. (2016).
5. Under Florida law, the Agency may levy a fine in an amount no greater than
$5,000 upon each person or business entity that owns any interest in a facility that terminates
operation without providing notice to the Agency and the residents of the facility at least 30 days
before operation ceases. This fine shall not be levied against any facility involuntarily closed at
the initiation of the Agency. The Agency shall use the proceeds of the fines to operate the
facility until all residents of the facility are relocated. § 429.31(4), Fla. Stat. (2016).
6. In February 2017, the Respondent’s landlord filed a county court action against
the Respondent seeking possession of the assisted living facility premises.
7. On March 13, 2017, the Respondent sent correspondence to the Agency stating
that it had attempted to negotiate a new lease with its landlord without success and believed that
as of March 1, 2017, it would still be able to negotiate a new lease.
8. The negotiations allegedly failed on or about March 7, 2017.
9. In the March 13, 2017, correspondence, the Respondent also stated that it was
closing this assisted living facility, moving all of the residents of this assisted living facility, and
requesting the Agency to “please close license #10666 effective immediately.”
10. The Respondent failed to inform the Agency not less than 30 days prior to the
discontinuance of operation and inform clients of such discontinuance as required by law.
11. The Respondent terminated its operation without providing notice to the Agency
and the residents of the facility at least 30 days before the operation of the facility ceased.
WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration,
seeks to impose an administrative fine of $5,000 against the Respondent.
COUNT II
Resident Rights
12. Under Florida law, no resident of an assisted living 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: ... At least 45 days’ notice of relocation or termination of
residency from the facility unless, for medical reasons, the resident is 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 or 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.
§ 429.28(1)(k), Fla. Stat. (2016):
13. Under Florida law, if the facility is unable to meet the resident’s needs, as
determined by the facility administrator or health care provider, the resident must be discharged
in accordance with Section 429.28, Florida Statutes. Fla. Admin. Code R. 58A-5.0181(5).
14, In February 2017, a county court civil action was filed against the Respondent for
possession of the assisted living facility premises.
15. On various dates in early March 2017, the Respondent discharged fifteen (15)
residents from this assisted living facility without providing the residents 45 days prior written
notice as required by Section 429.28, Florida Statutes (2016).
16. On March 13, 2017, the Respondent sent correspondence to the Agency stating
that it was closing this assisted living facility, moving all of the residents of this assisted living
facility, and requesting the Agency to “please close license #10666 effective immediately.”
17. | The Respondent did not have and did not demonstrate good cause to terminate the
residency of these fifteen residents from this assisted living facility.
18. The abrupt termination of residency of each of the fifteen residents without prior
written notification to the resident constituted a violation of resident rights for each resident as
set forth within Section 429.28, Florida Statutes (2016).
19. Under Florida law, as a penalty for any violation of this part, authorizing statutes,
or applicable rules, the Agency may impose an administrative fine. § 408.813(1), Fla. Stat.
(2016).
20. Under Florida law, the Agency may impose an administrative fine for a violation
that is not designated as a class [, class II, class III, or class IV violation. Unless otherwise
specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified
violations include: Violating any provision of this part, authorizing statutes, or applicable rules.
§ 408.813(3)(b), Fla. Stat. (2016).
WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration,
seeks to impose an administrative fine of $7,500.00 against the Respondent.
Respectfully Submitted,
/ 7)
Antdnio Lozada, Assistant G al Counsel
Florida Bar No. ee
Office of the General Counsel
Agency for Health Care Administration
2727 Mahan Drive, Mail Stop 7
Tallahassee, Florida 32308
Telephone (850) 412-3699
Facsimile (850) 922-9634
Email: Antonio. Lozada@ahca.myflorida.com
NOTICE
Pursuant to Section 120.569, F.S., any party has the right to request an administrative
hearing by filing a request with the Agency Clerk. In order to obtain a formal hearing
before the Division of Administrative Hearings under Section 120.57(1), F.S., however, a
party must file a request for an administrative hearing that complies with the requirements
of Rule 28-106.2015, Florida Administrative Code. Specific options for administrative
action are set out in the attached Election of Rights form.
The Election of Rights form or request for hearing must be filed with the Agency Clerk for
the Agency for Health Care Administration within 21 days of the day the Administrative
Complaint was received. If the Election of Rights form or request for hearing is not timely
received by the Agency Clerk by 5:00 p.m. Eastern Time on the 21st day, the right to a
hearing will be waived. A copy of the Election of Rights form or request for hearing must
also be sent to the attorney who issued the Administrative Complaint at his or her address.
The Election of Rights form shall be addressed to: Agency Clerk, Agency for Health Care
Administration, 2727 Mahan Drive, Mail Stop 3, Tallahassee, FL 32308; Telephone (850)
412-3630, Facsimile (850) 921-0158.
Any party who appears in any agency proceeding has the right, at his or her own expense,
to be accompanied, represented, and advised by counsel or other qualified representative.
Mediation under Section 120.573, F.S., is available if the Agency agrees, and if available,
the pursuit of mediation will not adversely affect the right to administrative proceedings in
the event mediation does not result in a settlement.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and
Election of Rights fo
a2
designated on this day of March, 2017.
were served to the below
named persons/entities by the method
|
Antonio Lozada, Assistant Genera
Florida Bar No. 112613 —
Office of the General Counsel
Agency for Health Care Administration
2727 Mahan Drive, Mail Stop 7
Tallahassee, Florida 32308
Telephone (850) 412-3699
Facsimile (850) 922-9634
Email: Antonio.Lozada@ahca.myflorida.com
Nancy Cushman, Administrator
Rudy’s Agape House, LLC
5426 18th Street West
Bradenton, Florida 34207
(U.S. Mail)
Nancy Cushman, Administrator
Rudy’s Agape House, LLC
2104 55th Avenue West
Bradenton, Florida 34207
(U.S. Mail)
Nancy Cushman, Registered Agent
Rudy’s Agape House, LLC
1502 27th Street West
Bradenton, Florida 34205
Certified Mail
Copy: Patricia Caufman, Field Office Manager
Paul Brown, Supervisor
Laura Manville, Unit Manager
i Nancy Cushman, Administrator
Electronic Mail
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION
Re: Rudy’s Agape House, LLC ACHA No. 2017002836
ELECTION OF RIGHTS
This Election of Rights form is attached to an Administrative Complaint. It may be
returned by mail or facsimile transmission, but_must_be received _by the Agency Clerk
within 21 days, by 5:00 pm, Eastern Time, of the day you received the Administrative
Complaint. If your Election of Rights form or request for hearing is not received by the
Agency Clerk within 21 days of the day you received the Administrative Complaint, you
will have waived your right to contest the proposed agency action and a Final Order will be
issued imposing the sanction alleged in the Administrative Complaint.
(Please use this form unless you, your attorney or your representative prefer to reply according to
Chapter120, Florida Statutes, and Chapter 28, Florida Administrative Code.)
Please return your Election of Rights form to this address:
Agency for Health Care Administration
Attention: Agency Clerk
2727 Mahan Drive, Mail Stop #3
Tallahassee, Florida 32308
Telephone: 850-412-3630 — Facsimile: 850-921-0158
PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS
OPTION ONE (1) I admit to the allegations of fact and conclusions of law alleged
in the Administrative Complaint and waive my right to object and to have a hearing. I
understand that by giving up the right to object and have a hearing, a Final Order will be issued
that adopts the allegations of fact and conclusions of law alleged in the Administrative
Complaint and imposes the sanction alleged in the Administrative Complaint.
OPTION TWO (2) I admit to the allegations of fact alleged in the Administrative
Complaint, but wish to be heard at an 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 agency action is too severe or that the sanction should be reduced.
OPTION THREE (3) I dispute the allegations of fact alleged in the Administrative
Complaint and request a formal hearing (pursuant to Section 120.57(1), Florida Statutes)
before an Administrative Law Judge appointed by the Division of Administrative Hearings.
PLEASE 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 formal hearing before
the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be
received by the Agency Clerk at the address above within 21 days of your receipt of this
proposed agency 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. The name, address, telephone number, and facsimile number (if any) of the Respondent.
2. The name, address, telephone number and facsimile number of the attorney or qualified
representative of the Respondent (if any) upon whom service of pleadings and other papers shail
be made.
3. A statement requesting an administrative hearing identifying those material facts that are in
dispute. If there are none, the petition must so indicate.
4. A statement of when the respondent received notice of the administrative complaint.
5. A statement including the file number to the administrative complaint.
Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency
agrees.
Licensee Name:
Contact Person: Title:
Address:
Number and Street City Zip Code
Telephone No. Fax No.
E-Mail (optional)
I hereby certify that I am duly authorized to submit this Election of Rights form to the Agency
for Health Care Administration on behalf of the licensee referred to above.
Signed: Date:
Printed Name: Title:
Docket for Case No: 17-003334
Issue Date |
Proceedings |
Oct. 31, 2017 |
Settlement Agreement filed.
|
Oct. 31, 2017 |
Agency Final Order filed.
|
Sep. 01, 2017 |
Order Closing File and Relinquishing Jurisdiction. CASE CLOSED.
|
Sep. 01, 2017 |
Motion to Relinquish Jurisdiction filed.
|
Jul. 28, 2017 |
Amended Respondent's Response to Agency's First Request for Admissions filed.
|
Jul. 14, 2017 |
Respondent's Response to Agency's First Request for Admissions filed.
|
Jul. 14, 2017 |
Respondent's Notice of Serving Answers to Agency's First Set of Interrogatories filed.
|
Jul. 06, 2017 |
Order Granting Continuance and Rescheduling Hearing by Video Teleconference (hearing set for September 19 and 20, 2017; 9:00 a.m.; Sarasota and Tallahassee, FL).
|
Jul. 06, 2017 |
Joint Motion for Continuance of Hearing filed.
|
Jun. 14, 2017 |
Exhibit 2 filed.
|
Jun. 14, 2017 |
Exhibit 1 filed.
|
Jun. 14, 2017 |
Agency's First Request for Admissions filed.
|
Jun. 14, 2017 |
Agency's Notice of Service of First Set of Interrogatories filed.
|
Jun. 14, 2017 |
Agency's Request for Production to Petitioner filed.
|
Jun. 14, 2017 |
Order of Pre-hearing Instructions.
|
Jun. 14, 2017 |
Notice of Hearing by Video Teleconference (hearing set for July 19 and 20, 2017; 9:00 a.m.; Sarasota and Tallahassee, FL).
|
Jun. 13, 2017 |
Joint Response to Initial Order filed.
|
Jun. 12, 2017 |
Initial Order.
|
Jun. 09, 2017 |
Petition for Formal Hearing filed.
|
Jun. 09, 2017 |
Election of Rights filed.
|
Jun. 09, 2017 |
Administrative Complaint filed.
|
Jun. 09, 2017 |
Notice (of Agency referral) filed.
|
Orders for Case No: 17-003334