STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PINEWOOD ESTATES ASSISTED LIVING FACILITY,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
/
Case No. 17-6584
RECOMMENDED ORDER
A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on July 11, 12, 19, and 20, in Viera, Florida.
APPEARANCES
For Petitioner: Lourdes A. Naranjo, Esquire
Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration
525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701
For Respondent: Peter Fellows
Pinewood Estates Assisted Living Facility 4055 Pinewood Road
Melbourne, Florida 32934
STATEMENT OF THE ISSUE
The issue is whether Pinewood Estates Assisted Living Facility’s (“Pinewood” or “Petitioner”) application for renewal of its assisted living facility (“ALF”) license should be granted.
PRELIMINARY STATEMENT
The Agency for Health Care Administration (“AHCA” or the “Agency”) served its Notice of Intent to Deny Renewal (“NOI”) against Pinewood on November 6, 2017, based upon the findings of the seven survey reports conducted at Pinewood from April 27, 2017, through August 17, 2017. Ten statutory grounds were given by AHCA for its determination not to renew the license.
At the hearing, Petitioner presented the testimony of its administrator, Peter Fellows, and AHCA Surveyor Victor Kruppenbacher. Petitioner also offered Exhibits B through I, K, L, BB, CC, DD, and EE, which were admitted into evidence over the objections of AHCA. Respondent presented the testimony of Robin Williams, Lorienda Crawford, Keisha Woods, Victor Kruppenbacher, Krystal Hinson, Jan Meyering, Vera Standifer (by deposition), and Lorraine Henry; and offered Exhibits A through K, KK, LL, MM, N (pages 1-19 only), O, P, Y, AA (pages 5-6 only), BB (pages 8-24 only), CC, and DD, all of which were admitted into evidence.
A four-volume Transcript of the final hearing was filed on September 5, 2018. After two extensions of time for filing
proposed recommended orders based upon good cause, including a rebuttal period for AHCA based upon a late-filed request for extension by Petitioner, Petitioner and Respondent filed their Proposed Recommended Orders on October 26, 2018 (AHCA), and November 13, 2018 (Petitioner). By notice filed November 14, 2018, AHCA chose not to file a rebuttal or reply to Petitioner’s Proposed Recommended Order. The proposed orders submitted by the parties have been given due consideration in this Recommended Order.
References to statutes are to Florida Statutes (2017),
unless otherwise noted.
FINDINGS OF FACT
AHCA is the state agency charged with licensing of ALFs in Florida pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. These relevant chapters charge the Agency with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure of and operation of such facilities.
At all times relevant, Pinewood was a licensed ALF located in Melbourne, Florida, operating a six-bed ALF under license number 12678. Pinewood’s license also includes limited nursing services, limited mental health (“LMH”), and extended congregate care licenses.
The Agency conducts inspections, commonly called surveys, of licensed providers and applicants for licensure to determine the provider or applicant’s compliance with the state’s regulatory scheme governing such facilities. AHCA’s surveys include taking a tour of the facility, reviewing resident records, reviewing the staff files, directly observing the residents, observing the staff’s interaction with the residents, interviewing the facility’s staff, interviewing the residents and their families, observing the dining experience, observing medication pass, observing the activities of the residents during the day, observing the physical plant, conducting an exit interview when possible, and documenting the survey findings.
There are different types of surveys. There are initial licensure surveys, relicensure biennial surveys, complaint surveys, monitoring surveys, and revisits, which follow all of the other types.
Pursuant to section 408.813(2), the Agency must classify deficiencies according to the nature and scope of the deficiency when the criteria established by law for facility operations are not met. Deficiencies must be categorized as either Class I, Class II, Class III, Class IV, or unclassified deficiencies. In general, the class correlates to the nature and severity of the deficiency. A Class I poses an imminent threat to the residents; a Class II constitutes direct harm; a Class III poses potential
or indirect harm to the residents; a Class IV concerns minor violations; and unclassified violations are those that do not fit in the other categories.
Normally, when the Agency cites a provider with a Class III violation, it allows 30 days for the provider to correct the deficient practice, unless an alternative time is
given. The deficiency must be corrected within 30 days after the facility receives notice of the deficiency. This correction is verified by a revisit survey conducted after the 30 days have elapsed. Correction of a deficiency means not finding the deficient practice during a revisit survey.
The Agency conducted a biennial relicensure survey on April 27, 2017, at Pinewood. The Agency cited Pinewood with ten Class III deficiencies related to the following tags or deficiencies: Tag A008, admissions - health assessment;
Tag A052, assistance with self-administration; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training – assist with self-administration; Tag A085, training – nutrition and food service; Tag A090, training - Do Not Resuscitate Orders (“DNRO”); Tag A160, records – facility;
Tag A167, resident contracts; and Tag AL243, LMH training.
Lorraine Henry is the supervisor of the ALF unit for the Orlando office and was in charge of all the surveys conducted at Pinewood. She reviewed and approved all of the deficiencies or
tags cited in the surveys and approved the classifications given to each deficiency.
The Agency cited Pinewood with Tag A008, for Pinewood’s failure meet the standards related to admissions and health assessments, pursuant to section 429.26(4)-(6) and
rule 58A-5.0181(2). Pinewood was required to ensure that the AHCA Health Assessment Form 1823 (“Health Assessment”) was completed entirely by the health care provider for all residents. Pinewood was missing a completed Health Assessment for
Resident 4. On page 2, question 4, under “Status,” which asks if the resident “poses a danger to self or others,” was left blank and not answered. On page 4, question B, “Does individual need help with taking his or her medications?” was left blank and not answered. In addition, the type of assistance with medications required was not marked in the appropriate box. This deficiency poses an indirect or potential threat to residents because the facility cannot register changes in a resident’s health unless it has a completed Health Assessment. Because of this indirect threat, it was properly classified as a Class III deficiency.
The Agency cited Pinewood with Tag A052, a violation because Pinewood failed to meet the standards of assistance with self-administration, pursuant to rule 58A-5.0185(3). Assistance with self-administration of medication requires trained staff to open the medication container; read the label aloud to the
resident; provide the resident with the medication; observe the resident self-administer the medication; and then document that the medication was provided in the resident’s Medical Observation Record (“MOR”). During this survey, Agency personnel observed Pinewood’s employee, Carmeleta Smith, fail to read the label aloud in front of the resident or to inform the resident which medication the resident was taking during the medication pass procedure. This deficiency poses an indirect or potential threat to residents because it increases the likelihood of medication errors, and it was properly classified as a Class III deficiency.
The Agency cited Pinewood with Tag A054 due to Pinewood’s failure to meet the standards of medication records pursuant to rule 58A-5.0185(5). Pinewood is required to ensure that the MOR contains all of the required information and that the MOR is updated each time the medication is given. The MOR for Resident 5 failed to include the route of the medication for the 21 medications listed for that resident. The entry for Ocutive did not contain the strength or the route of the medication. Moreover, Agency personnel observed Ms. Smith’s failure to immediately sign the MOR after a medication was given to Resident 4. Also, the MOR for Resident 4 did not reflect that the morning medications had been signed as having been given in the morning for 15 of the resident’s medications. This deficient practice constitutes an indirect or potential risk to residents
because it increases the likelihood of medication errors and was properly classified as a Class III deficiency.
The Agency cited Pinewood with Tag A085 for its failure to meet the standards of training for nutrition and food service, pursuant to rule 58A-5.0191(6). Pinewood is required to ensure that the person responsible for the facility’s food service received the annual two hours of continuing education. Peter Fellows, as the person responsible for food service, did not have the required two hours of continuing education in 2017. This deficient practice constitutes an indirect or potential risk to residents because it could cause food borne illnesses to spread to the residents, and was properly classified as a Class III deficiency.
The Agency cited Pinewood with Tag A090 for Pinewood’s failure to meet the 12 standards of training as to DNRO, pursuant to rule 58A-5.0191(11). Pinewood is required to ensure that the staff must receive at least one hour of training in the facility’s policies and procedures regarding DNRO within 30 days of employment. Pinewood’s employee, Sharon McFall, had not received in-service training on the facility’s policies and procedures regarding DNRO within 30 days of hire. This deficient practice poses an indirect or potential risk to residents because in case of an emergency situation where a resident stops breathing, the staff has to understand the facility’s DNRO
procedures and the steps that need to be taken; and, therefore, was properly classified as a Class III deficiency.
The Agency cited Pinewood with Tag A160 for Pinewood’s failure to meet the standards of facility records, including admission and discharge records pursuant to rule 58A-5.024(1), which requires Pinewood to maintain accurate admission and discharge logs. Pinewood’s admission and discharge log did not include the name and date of admission for Resident 2. AHCA personnel observed Sherine Wright, the legal assistant for the administrator, and purportedly a contract employee of Pinewood, adding Resident 2’s information to the admission and discharge log after they were already residing in the facility. This deficient practice poses an indirect or potential threat to residents because the facility would be unaware as to the residents who are actually residing in the facility, and was properly classified as a Class III deficiency.
The Agency cited Pinewood with Tag A167 for its failure to meet the standards of resident contracts, pursuant to rule 58A-5.024, which requires Pinewood to maintain completed resident contracts in the residents’ files. Resident 4’s resident contract failed to include the following required provisions:
the facility’s refund policy that must conform to section 429.24(3), a 45-day notice of discharge, a 30-day advance notice of rate of increase, and that residents must have a health
assessment upon admission and then every three years thereafter or after a significant change in the resident’s health. This deficient practice constitutes an indirect or potential risk to residents because it exposes the residents to potential financial abuse because the residents would not know their rights when they are discharged or when the rates are being increased. The deficient practice was properly classified as a Class III deficiency.
Finally, the Agency cited Pinewood with Tag AL243 for Pinewood’s failure to meet the standards regarding the LMH training pursuant to section 429.075(1) and rule 58A-5.0191(8). Having elected to maintain a LMH license, Pinewood is required to ensure that the administrator, managers, and staff complete a minimum of six hours of specialized training in working with individuals with mental health diagnosis within six months of employment. Carmeleta Smith did not have the required minimum of six hours of specialized training even though she had been employed at the facility for 16 months. This requirement remains in place whether a LMH resident is present at the facility or not, so long as the facility elects to hold a LMH license. This deficient practice constitutes an indirect or potential risk to residents because without the training, the staff will not be properly trained to care for LMH residents, and was properly classified as a Class III deficiency.
Throughout the duration of the relicensure survey, the Agency surveyors were routinely denied full access to facility records, resident files, and areas of the facility by the self- declared representative of Pinewood’s administrator and contract employee, Sherine Wright. Ms. Wright interfered with the Agency’s survey process by restricting access to documents and alerting residents that family interviews would be taking place. Ms. Robin Williams, an Agency surveyor, told Ms. Wright that she was interfering with the survey process, but Ms. Wright continued to control the survey process and continued to give Ms. Williams pieces of paper she said were pulled from files, rather than providing the surveyor with access to the complete files.
Ms. Williams also observed Ms. Wright assisting a resident who was returning to the facility with a family member and observed her talking to the family member and helping the resident settle back into her bedroom. Ms. Smith was at the facility at that time, yet she did not assist the resident. It was Ms. Wright who assisted the resident and the family member to settle the resident back into her bedroom. Based upon their observations, she considered Ms. Wright to be staff working at Pinewood.
Subsequent to the biennial relicensure survey, the Agency conducted an unannounced monitoring visit in conjunction with a complaint survey (#2017003680) on May 8 through 15, 2017. As a result of this survey, the Agency cited Pinewood with one
Class III violation, Tag A190, as to Administrative Enforcement; and with one unclassified violation, Tag CZ814, as to background screening. Lorraine Henry, as the ALF supervisor for the Orlando field office, reviewed and approved the tags or deficiencies cited in this survey and their classifications.
The Agency cited Pinewood with Tag CZ814 for failure to meet the standards of background screening pursuant to section 435.12(2)(b)-(d), Florida Statutes, requiring that the facility ensure that all its employees had completed a Level II background screening. During the complaint investigation, Ms. Wright denied that she was a staff person of Pinewood to a senior Agency surveyor, Victor Kruppenbacher. However, because of his observations, Mr. Kruppenbacher considered Ms. Wright to be a staff member working at the facility. Ms. Wright was the person who greeted him, and was the person who called the Administrator, Mr. Fellows, on the phone when questions arose concerning access to files or to Pinewood residents. Mr. Kruppenbacher further observed Ms. Wright interacting with the residents and providing guidance and direction to the residents. Mr. Kruppenbacher observed a resident asking Ms. Wright a question, after which she put her arms around the resident and guided the resident into the resident’s bedroom. Ms. Wright was very familiar with the resident population, called residents by their names, and answered the residents’ questions. Ms. Wright clearly appeared
to control the operations at the facility; and had access to the residents, their belongings, and their areas of the facility.
Therefore, she was required to have a Level 2 background screening according to Florida law, which she did not have. This deficient practice was properly classified as an unclassified violation, since it did not fall within the four classes of violations, yet exhibited a failure to follow the law regarding ALF staff members.
The Agency also cited Pinewood with Tag A190, for failure to meet the standards of Administrative Enforcement pursuant to section 429.075(6) and rule 58A-5.033(1) and (2). The facility may not restrict the Agency’s surveyors from accessing and copying the facility’s records including the employee files, the facility’s records, and the residents’ files. The facility may not restrict the Agency’s surveyors from conducting interviews with the facility staff or with the residents. Once again, Ms. Wright interfered with the survey process. She would not let the other staff member on site,
Ms. Smith, answer any of his questions, which left Ms. Wright, the non-licensed person on-site, as the only one who answered any of the surveyor’s questions. She would not let the surveyor speak to the residents and would not provide him with the records he requested, including the residents’ records and the staffing schedule. She refused to allow the surveyor into all of the
rooms within the licensed facility and would not identify a person working in the facility, about whom he inquired. She refused to let the surveyor speak with Mr. Fellows after she called him on the phone. At the beginning of the survey,
Ms. Wright denied Mr. Kruppenbacher access to an unlicensed property contiguous to the facility and tried to deny him access to the licensed facility. Ms. Wright refused to allow a worker, who was working in the office in the facility, to provide her name to the surveyor. Ms. Wright refused to identify herself to the surveyor and would only state that she was Mr. Fellows’ business partner. Ms. Smith, the staff member present, identified her as Sherine Wright. At 2:00 p.m., Ms. Wright contacted the facility’s administrator, Mr. Fellows, by telephone, but would not allow the surveyor to speak with
Mr. Fellows. This deficiency poses an indirect or potential threat to residents because the Agency is unable to get a clear picture of how the facility is being operated and was properly classified as a Class III deficiency.
On August 1, 10, and 11, 2017, the Agency conducted multiple revisits (revisit survey dated August 11, 2017, CGOJ12) to the relicensure survey of April 27, 2017. As a result, the Agency cited Pinewood with nine uncorrected Class III violations for the following tags: Tag A008, admissions and health assessment; Tag A054, medication records; Tag A078, staffing
standards; Tag A084, training with assist with self- administration of meds; Tag A085, training as to nutrition and food service; Tag A090, training on DNRO; Tag A160, records as to the facility; Tag A167, resident contracts; Tag AL243, LMH training. These deficient practice tags all remained uncorrected from the original survey of April 27, 2017. Pinewood was only able to demonstrate that it had corrected the practice cited in Tag A052, which was cleared by the Agency as corrected. The deficiencies and the classifications were reviewed and approved by the Agency’s regional ALF supervisor, Lorraine Henry. During the revisit, Mr. Kruppenbacher was accompanied by two other surveyors, Vera Standifer and Krystal Hinson.
During this relicensure survey, Pinewood’s alleged contracted employee, Ms. Wright, was not cooperative and would not provide the surveyors with the documentation they requested, for the third consecutive survey event. Ms. Wright would not provide AHCA personnel with the staff files, claiming they were privileged legal office documents from the law office of Peter Fellows.
During the revisit survey, the Agency once again cited Pinewood with Tag A008 for failure to meet the standards of the admissions and health assessments. The Agency surveyors requested the file of each current resident, including the Health Assessments. The records given by Pinewood’s staff showed that
Resident 1 was admitted on September 1, 2016; Resident 2 was admitted on March 23, 2017; Resident 3 was admitted on December 6, 2016; Resident 4 was admitted on March 1, 2016; and
Resident 5 was admitted on January 15, 2016. Resident 1’s Health Assessment was not provided by the facility. Residents 2, 3,
and 4’s Health Assessments did not include a signed and completed Section 3 related to “Services offered or arranged by the facility for the resident.” Further, Resident 5’s Health Assessment, completed on January 15, 2016, noted that the resident had a PEG tube. (A PEG tube is a percutaneous endoscopic medical procedure in which a tube is passed into the patient’s stomach through the abdominal wall most commonly to provide a means of feeding when oral intake is not adequate.)
On August 10, 2017, Resident 5 no longer had a PEG tube, but the resident’s file did not contain an updated Health Assessment documenting the removal of the PEG tube. Ms. Hinson interviewed Resident 5, who stated that the PEG tube had been removed months earlier. The resident should have had an updated Health Assessment reflecting the removal of the PEG tube because this is considered a change of circumstances requiring an updated Health Assessment. There was no updated Health Assessment to show what the current risk factors would be for this resident. Moreover, the medical certification on Resident 5’s Health Assessment was incomplete because the name of the examiner was not printed; the
signature of the medical examiner was illegible; there was no medical license number and no address or phone number for the examiner; and no date for the examination. Section 3 of the Health Assessment was not completed by the facility or signed by the facility. This deficient practice poses an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency.
The Agency again cited Pinewood with Tag A054 for failure to meet the standards of medication records. The Agency’s surveyors requested resident records, including the MORs from Pinewood’s employee, Ms. Smith. Pinewood’s other employee, Ms. Wright, would not give full access to the MORs and would only hand the surveyors some of the records from the MOR book that she determined the Agency could see instead of the entire MOR book, which is what the surveyors requested. The surveyors were only able to review the MORs from August 1 through August 10, 2017, instead of two months of MORs that were requested and customarily reviewed.
The Agency was able to determine that Resident 3’s MORs were left blank for the dosage of two medications for various days: the dosage of Donepezil on August 9, 2017, at 9:00 p.m., and the dosage of Clonazepam for August 2, 3, 5, 6, 7, 8, and 9. Additionally, the MORs were not provided for Resident 4. The MORs for Resident 5 were left blank for the dosage of Loratadine
from August 1 through 10, 2017, and for Oxycodone for August 9, 2017. This deficiency constitutes an indirect or potential risk to residents and Tag A054 was properly classified as an uncorrected Class III deficiency.
During the same revisit surveys on August 1, 10,
and 11, 2017, the Agency again cited Pinewood with Tag A167 as to records and resident contracts, and requested all of the resident files. Resident 1’s file was not provided to the surveyors; therefore, the surveyors were not able to review the resident’s contract. Resident 3’s resident contract was signed by someone other than Resident 3, but the file did not contain a power of attorney for Resident 3. Resident 4’s resident contract was never provided to the surveyors so they were not able to review it. This deficient practice constitutes an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency.
The Agency conducted a complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017,
USQF11), and cited Pinewood with two Class III violations for Tag A055 related to medication storage and disposal, and for Tag A057 for medication over-the-counter (“OTC”). Lorraine Henry, the ALF supervisor, again reviewed the proposed
deficiencies and the classifications and approved them. Pinewood violated Tag A055 as to storage and disposal of medication
pursuant to rule 58A-5.0185(6), which required the facility to ensure that the medications be centrally stored and kept in a locked cabinet or a locked cart at all times. On August 17, 2017, Mr. Kruppenbacher observed that the medication cart was left unlocked and accessible to residents. Pinewood’s failure to keep medications in a locked cabinet or cart posed an indirect or potential risk to residents because a resident could have easily taken and ingested a medication from the unlocked cart. This deficient practice was properly classified as a Class III deficiency. The Agency also cited Pinewood with Tag A057 related to medication OTC, pursuant to rule 58A-5.0185(8), which required Pinewood to ensure that OTC products be labeled with the resident’s name and the manufacturer’s label. Mr. Kruppenbacher performed an inventory of the centrally-stored medication cart and found five unlabeled OTC medications stored in the medication cart which did not contain the name of a resident. This deficient practice posed an indirect for potential threat to residents, because any resident could have ingested one of the medications from the unlocked cart, and was properly classified as a Class III deficiency.
AHCA conducted an unannounced complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, EN1W11), which resulted in Pinewood being cited for the following: Tag A077, related to staffing standards as to
administrators as a Class II; Tag A161, related to staff records as a Class III; Tag A162, related to resident records as a
Class III; and Tag CZ816, as to background screening and the compliance attestation as an unclassified violation. Ms. Henry personally wrote Tag A077 and approved the other three tags and their classifications.
During the unannounced complaint survey on August 1, 10, and 11, 2017, the Agency cited Pinewood with Tag A077 for failure to meet the requirements of staffing
standards as to administrators pursuant to section 429.176 and rule 58A-5.019(1), which requires that the facility 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 all persons who have access to the residents and their living areas and belongings; and who must ensure that the staff are qualified to work in the facility and have documentation of an eligible Level 2 background screening, annual documentation of being free from symptoms of communicable disease, and documentation of all of the required training.
Pinewood must also maintain and provide complete resident records for all of the residents.
On August 10, 2017, the surveyors’ observations led them to conclude that Ms. Wright was in control of the day-to-day operation of the facility. Ms. Wright provided all of the
answers when questions were asked concerning the operation of the facility. Ms. Wright would not allow staff to answer questions without her input. She controlled what information the surveyors were allowed to review and what documents were provided to the surveyors. Ms. Wright would not allow the staff at the facility to access records, employee files, or resident records. The staff schedule provided to the surveyors by Ms. Wright revealed that “Sharon” (a/k/a Sherine) Wright was listed as the administrator. As such, Ms. Wright was required to have a
Level 2 background screening. Pinewood provided no evidence that Ms. Wright had proper training, background screening results, or CORE certification to be the administrator of an ALF.
Mr. Fellows, the listed Administrator according to facility filings with the Agency, was not present at the facility on August 1, 10, or 11, 2017, while the Agency survey was being conducted.
On August 10, 2017, the surveyors requested the employee files and resident records from Pinewood’s staff member Ms. Smith. The facility failed to provide the employee files. After the request to Ms. Smith, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are privileged legal office records.
On August 10, 2017, the facility’s information on the background screening indicated that Pinewood staff member Sharon
McFall was listed as an employee on the background clearinghouse database. The staff schedule, which covered the period from August 1 through 12, 2017, documented Ms. McFall as working at the facility. Ms. Smith admitted that Ms. McFall works at the facility. The Agency’s background screening website showed that Ms. McFall was hired on November 1, 2015, and that her background screening had expired on March 25, 2017, almost five months prior to this visit. On August 10, 2017, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are legal documents.
Pinewood refused to allow the surveyors to review the employees’ files; failed to have an eligible Level 2 background screening for Ms. McFall, as well as for Ms. Wright, who was in charge of the day-to-day operations; failed to provide access to the resident file for one resident; and provided an incomplete file for another resident. Taken together, these events posed a direct threat to the physical or emotional health, safety, or security of the residents. Without access to this information, the Agency is unable to determine exactly what is happening with the residents, and to determine if the facility is operating according to Florida’s applicable statutes and rules governing ALFs. Moreover, anyone who has direct access to the residents, to their personal belongings, and to their rooms, must have a
Level 2 background screening. Tag A077 was properly classified as a Class II deficiency.
During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A161, related to staff records pursuant to section 429.275(2) and rule 58A-5.024(2). Pinewood was required to maintain personnel records for each staff member, which include, at a minimum, documentation of compliance with Level 2 background screening;
documentation of compliance with all of the required training and continuing education requirements; and a copy of all licenses or certifications for all staff. As discussed at length above,
Ms. Wright told the surveyors that they would not be allowed to review the employee files because they were legal documents from the legal office of Mr. Fellows. No employee files were provided to the surveyors on any of the August survey dates. This deficient practice poses an indirect or potential threat to the residents because the surveyors were not able to verify whether the staff has the required training to carry out their duties and the required documentation, such as Level 2 background screenings. This tag was properly cited as a Class III deficiency.
During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A162, related to resident records, pursuant to rule 58A-5.024(3).
Pinewood was required to maintain each resident’s records, which must contain, among other things, a Health Assessment; a copy of the resident’s contract; documentation of the appointment of a health care surrogate, health care proxy, guardian, or a power of attorney; and the resident’s DNRO. On August 10, 2017, the surveyors requested all of the resident files from Ms. Smith.
Resident 1’s file was not provided. Resident 5’s file did not contain an updated Health Assessment reflecting when the PEG tube had been removed, as detailed in paragraph 23 above. Pinewood’s failure to maintain the resident files and current Health Assessments poses an indirect or potential threat to residents and was properly classified as a Class III deficiency.
During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag CZ816 related to background screening and compliance with attestation to section 408.809(2)(a)–(c). Pinewood was required to ensure that its staff members received a Level 2 background screening every five years. As documented above, Pinewood did not have a current background screen on file for employee Sharon McFall. Pinewood also refused to provide a background screening result for contracted employee Ms. Wright. Pinewood’s failure to have
current Level 2 background screenings for its staff was properly labeled an unclassified violation.
The Agency conducted an unannounced monitoring visit related to the complaint investigation (#2017003680) regarding unlicensed activity at Pinewood on August 1, 10, 11, and 15, 2017 (survey dated August 15, 2017, TYOU12), and cited Pinewood with Tag A190 for administrative enforcement for one Class II deficiency, and Tag CZ814 for background screening clearinghouse for one unclassified violation. During this monitoring visit, the Agency cited Pinewood with Tag A190 for administrative enforcement pursuant to section 429.075(6) and rule 58A-5.033(1), (2), and (3)(b) as a Class II violation. Pinewood is required to cooperate with Agency personnel during surveys, complaint investigations, monitoring visits, license applications and renewal procedures, and other activities to ensure compliance with chapters 408, part II, and 429, part I; and Florida Administrative Code Chapters 58A-5 and 59A-35.
During this survey, Mr. Kruppenbacher was interviewing Ms. Smith when Ms. Wright interrupted the interview and stated that she was the legal representative of Mr. Fellows’ law firm and his legal representative. When Mr. Kruppenbacher asked
Ms. Wright if she worked at the facility, she would not answer. Mr. Kruppenbacher asked Ms. Wright the correct spelling of her name, at which time she walked out of the interview. At
11:40 a.m., Mr. Kruppenbacher was again interviewing Ms. Smith when Ms. Wright interrupted the interview. Mr. Kruppenbacher had
asked Ms. Smith to provide him with MORs for review. Ms. Wright removed the MORs from the medication cart and stated that she would give the surveyors what they needed to see. While
Ms. Wright was pulling MORs from the notebook, Mr. Kruppenbacher took a second notebook that was on the medication cart.
Ms. Wright grabbed the notebook from him and would not let him see it, stating that this was something that the Agency did not need to see. On August 10, 2017, Mr. Kruppenbacher asked the staff for a second time to provide access to the employee files. Ms. Wright then stated that the surveyors would not be allowed to review the employee files because they are legal office records. No employee files were provided to the surveyors despite multiple requests, both written and oral.
On August 10, 2017, Mr. Kruppenbacher requested to see the background screening for staffer F, Thomas Weaver, from
Ms. Wright. Mr. Weaver was listed on the staff schedule provided to the surveyors that same day, and he was observed driving Pinewood’s residents to an activity. Ms. Wright said that he was only the maintenance man and did not need a background screening. Later, AHCA surveyors requested that Ms. Wright provide the file for Resident 1, but the file was never provided. At 3:00 p.m., a surveyor was attempting to interview Resident 3, and Ms. Wright stopped the surveyor from speaking to the resident.
On August 10, 2017, at 3:15 p.m., during an attempted exit interview, Mr. Kruppenbacher asked Ms. Wright if her name was pronounced “Sharon” Wright or “Sherine” Wright. Ms. Wright refused to tell him whether her first name was Sherine or Sharon and demanded that he leave the facility immediately.
The identity of Sherine Wright, who also calls herself Sharon, has been a constant problem during all of the surveys. The undersigned expressed an interest during the hearing in having Ms. Wright testify, since she seemed to be a central figure throughout the survey process. Neither Ms. Wright nor any employee of Pinewood (except the Administrator, Mr. Fellows) testified at the hearing concerning the issues raised and deficiencies found by AHCA surveyors. The Agency had subpoenaed Ms. Wright to testify at hearing, yet she neither appeared nor gave an excuse for not appearing.
The surveyors testified to Ms. Wright giving her name as both Sherine and Sharon at different times. Regardless of how she identified herself, the credible evidence supports that there was only one Ms. Wright present at the various surveys conducted by AHCA.
Ms. Wright lives on the property where Pinewood is located, in the “back” house, which is about 30 feet behind the ALF. Ms. Wright is the owner of record of the property at
4405 Pinewood Road, Melbourne, Florida 32034, where Pinewood is located.
After the surveys at issue were conducted, the Agency discovered that Sherine Wright has been convicted of a second degree felony for exploitation of an elderly person in the amount of $20,000 to under $100,000, pursuant to section 825.103, Florida Statutes, in Broward County, Florida, Case
No. 01-4230CF10B. The conviction includes the special condition that Ms. Wright should not be employed or have any financial involvement with the elderly (status over 60). This second degree felony conviction is a disqualifying offense under section 435.04, which means that Ms. Wright could never receive an eligible Level 2 background screening allowing her to work at Pinewood or any licensed facility serving the elderly.
From the eye witness testimony of several of the AHCA surveyors on different occasions, Ms. Wright had access to residents’ rooms, their living areas, and, presumably, their personal belongings. One surveyor, Kristal Hinson, observed Ms. Wright entering residents’ rooms on August 10, 2017. Another, Vera Standifer, observed the same behavior by
Ms. Wright. At the April 27, 2017, visit, surveyor Robin Williams saw Ms. Wright take a resident to her room and help her settle in. Mr. Kruppenbacher observed Ms. Wright with her arm around a resident, walking him to his room. Ms. Wright clearly
had access to files, to resident records, and to staff records. She was observed having access to residents’ medications and the medications chart. Despite these observations by AHCA surveyors, Mr. Fellows testified that Ms. Wright was merely a contract employee of Pinewood who had no access to residents, their belongings, or their private living spaces. The overwhelming evidence in this matter support AHCA’s surveyors on Ms. Wright’s involvement with resident care. Other than Mr. Fellows’ testimony on this issue, no evidence was presented by Pinewood to support a contrary view.
Not only did Ms. Wright have access to all aspects of the residents’ lives and the facility’s files, but she was forcefully obstructionist whenever any surveyor made reasonable requests for files and records that are required by state law and rules to be kept by the facility. She was neither a licensed professional in any aspect of resident care nor was she an attorney, yet she repeatedly refused to cooperate with even the most basic requests from the surveyors, often claiming some unspecified legal privilege concerning the documents. She only added to the surveyors’ personal observations leading to findings that significant violations occurred. After all, how can a surveyor confirm the existence of required records when the only identified, non-licensed person present at the surveys refused them access, often, as she said to the surveyors, because the
requested documents were somehow “legally protected” with her being some sort of representative of Mr. Fellows’ law firm? They were “legally protected,” but only from unlicensed Pinewood personnel who had no business seeing them, not from AHCA surveyors with every right to examine all facility records, especially on a relicensure survey.
The surveyors had every justification for believing Ms. Wright was involved in the day-to-day operations of the facility. Moreover, when the surveyors were on site, she was the one who contacted the absent Mr. Fellows by telephone to inform him as to what was transpiring. Yet Mr. Fellows never asked to speak with the surveyors when called during their visits, nor did
he direct Ms. Wright to cooperate with their reasonable requests. Each of the surveyors frankly testified that they believed
Ms. Wright worked for Mr. Fellows or was his business partner. They were each justified in citing the facility for its complete failure to cooperate throughout the survey process.
From at least April 27 to August 11, 2017, Pinewood had an individual working at the facility and running its day-to-day operations with a second degree felony conviction for exploitation of the elderly, a disqualifying offense. Having such a person working at Pinewood poses a direct threat to the physical or emotional health, safety, or security of the residents because this is a person who, as a matter of law, is
forbidden to work with the residents of an ALF because her criminal history places the residents’ health and welfare at serious and direct risk of harm. This deficient practice is a serious offense that was properly classified as a Class II violation.
During the exit interview, the surveyors informed the facility that it had failed to provide the employee files, the MORs notebook, the August 2017 MOR for Resident 4, the resident file for Resident 1, and the dates of birth for apparent staffers Ms. Wright and Mr. Weaver, as well as background screenings for Ms. Wright.
Pinewood failed to cooperate with the survey process, to allow the surveyors to conduct a private interview with Resident 3, to provide requested employee records, to provide Resident 1’s file, and to provide the complete MORs. These facts, along with the failure to have Ms. Wright identify herself, and to provide the dates of birth for Mr. Weaver and herself pose a direct threat to the physical or emotional health, safety, or security of the clients because the Agency cannot determine whether Pinewood is following the applicable state rules and statutes; and, therefore, the Agency cannot ensure the safety of the residents. Tag A190 was correctly classified as a Class II deficiency.
To add to the lack of control by Mr. Fellows as the nominal administrator of Pinewood, interviews with non-facility nursing personnel further supported the lack of institutional control demanded of facilities that care for the elderly. One local nurse interviewed by Mr. Kruppenbacher said she was uncomfortable working at the facility because the facility required her to provide nursing care in the bathroom, and required a staff person to be present in the bathroom when the care was being provided. This negated any privacy rights of the resident under that nurse’s care.
Pinewood failed to provide a safe environment, and to keep certain residents free from verbal abuse and neglect. Its failure to allow residents to be treated with respect and consideration for personal dignity and privacy, along with the failure to provide a 45-day notice before discharging Resident 6 over an insurance issue, posed a direct threat to the physical or emotional health, safety, or security of that resident. This supports that Tag A030 was properly classified as a Class II deficiency.
During the licensure period, Pinewood committed
30 deficiencies, including nine uncorrected Class III deficiencies, three Class II violations, and three unclassified violations involving background screening. All of these demonstrate that Pinewood did not meet the minimum licensure
standards to maintain licensure, and was never in compliance with the requirements set out in the authorizing statutes and applicable rules during the surveys conducted at the ALF. During this period, Pinewood did not pass a single biennial survey, a revisit survey, a complaint survey, or monitoring surveys, thus never demonstrating regulatory compliance.
Pinewood’s willingness to operate in regulatory noncompliance in addition to allowing a person with a disqualifying offense, and who should have been prohibited from working at an ALF, to operate the facility, and to allow non- background screened employees to provide care and services to residents poses a direct and indirect threat to the health and safety of Pinewood’s residents. Therefore, upholding the Agency’s denial of licensure renewal is the only way to ensure the health, safety, and welfare of Petitioner’s residents.
At the hearing, Mr. Fellows submitted exhibits, which he testified he sent to the Agency by facsimile or by mail sometime after April 27, 2017, in an attempt to correct the deficiencies cited in the April 27, 2017, survey. However,
Mr. Fellows does not know or remember the dates when the documents were mailed or faxed or who sent them. The Agency objected to Petitioner’s exhibits on the grounds of authenticity. Without any testimony from agents or employees of Pinewood, it is impossible to determine whether these documents were prepared in
the normal course of resident care; whether they were completed well after the actual care, if any, had been provided; or are even responsive to the deficiencies alleged in the NOI issued by AHCA. Therefore, they are entitled to little, if any weight, for purposes of this Recommended Order.
Mr. Fellows testified that the Agency is required to do a desk review of documents he allegedly faxed to AHCA’s regional office. He claims the documents offered clear up any and all issues raised by the Agency in its NOI. However, without authentication as to the timeliness and thoroughness of the documentation as responsive to the violations found by AHCA, these documents are hearsay, unsupported by evidence as to their authenticity by anyone in a position to know when, how, and upon what basis they were created. The undersigned cannot rely upon the faxed documentation, even if it did address some of the principal issues raised by the Agency, as evidence of compliance.
The most honest statement made by Mr. Fellows was that he probably got in “over his head” concerning his venture of trying to run an ALF. He was rarely present at the facility during the many months the surveys were taking place. During this time, he was practicing law in Miami, far from the day-to- day operations of Pinewood. Administrators are not supposed to run facilities as absentees, having no other licensed administrative staff present. Moreover, he never had a licensed
assistant administrator or other professional present to speak to the surveyors on his behalf. The Agency was justified in making all of its findings in the series of seven surveys in 2017.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this matter pursuant to sections 120.569 and 120.57(1), Florida Statutes (2018).
Section 429.01(3) states:
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.
The Agency has specified the statutory and regulatory authority under which it cited Pinewood for each instance of deficient practice, otherwise noted as “Tags” in the Findings of Fact section above.
Section 429.28(1) provides in pertinent part:
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:
Live in a safe and decent living environment, free from abuse and neglect.
Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy.
Rule 58A-5.023(3) provides in pertinent part:
OTHER REQUIREMENTS.
All facilities must:
Provide a safe living environment pursuant to section 429.28(1)(a), F.S.;
Be maintained free of hazards; and,
Ensure that all existing architectural, mechanical, electrical and structural systems, and appurtenances are maintained in good working order.
Section 429.19(2) provides in pertinent part:
Each 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 follows:
* * *
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 exceeding $5,000 for each violation.
Class “III” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class III violation in an amount not less than $500 and not exceeding $1,000 for each violation.
Section 408.813(2), in pertinent part, defines Class II, Class III, and unclassified violations as follows:
Class “II” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as
provided by law for a cited class II violation. A fine shall be levied notwithstanding the correction of the violation.
Class “III” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of clients, other than class I or class II violations. The agency shall impose an administrative fine as provided in this section for a cited class III violation. A citation for a class III violation must specify the time within which the violation is required to be corrected. If a class III violation is corrected within the time specified, a fine may not be imposed.
* * *
The agency may impose an administrative fine for a violation that is not designated as a class I, 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 term or condition of a license.
Violating any provision of this part, authorizing statutes, or applicable rules.
Exceeding licensed capacity.
Providing services beyond the scope of the license.
Violating a moratorium imposed pursuant to s. 408.814.
Section 429.14(1)(a), (e), (f), (h), and (k) provides in pertinent part:
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, any person subject to level 2 background screening under
s. 408.809, or any facility staff:
(a) An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.
* * *
A citation for any of the following violations as specified in s. 429.19:
One or more cited class I violations.
Three or more cited class II violations.
Five or more cited class III violations that have been cited on a single survey and have not been corrected within the times specified.
Failure to comply with the background screening standards of this part,
s. 408.809(1), or chapter 435.
* * *
(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.
Section 408.815(1)(b), (c), (d), Florida Statutes (2016), provides 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:
* * *
An intentional or negligent act materially affecting the health or safety of a client of the provider.
A violation of this part, authorizing statutes, or applicable rules.
A demonstrated pattern of deficient performance.
Section 408.811(4) provides that “[a] deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency.”
Section 408.806(7)(a) provides in pertinent part: “[a]n applicant must demonstrate compliance with the requirements in this part, authorizing statutes, and applicable rules during an inspection pursuant to s. 408.811, as required by authorizing statutes.”
Rule 59A-35.060(6)(a) and (c) provides in pertinent
part:
An application is considered complete upon receipt of:
All required documents and information and appropriate fee;
* * *
(c) Completion of a satisfactory inspection if required by authorizing statutes or rules. Satisfactory inspection means no regulatory violations exist, or all prior violations
found have been determined by the Agency to be corrected.
AHCA ably demonstrated that Pinewood’s renewal application cannot be granted, first of all, because it is defined as “incomplete” by the rule cited immediately above. During the months of attempted inspection and re-inspection described in great detail above, Pinewood never obtained a satisfactory inspection as set out in the numerous surveys containing deficient practices being cited and left uncorrected. Pinewood never demonstrated compliance in its biennial survey of April 27, 2017, nor did it demonstrate compliance through correction of deficiencies in the August 10, 2017, revisit or follow-up survey to the biennial. Moreover, Pinewood’s failure to correct the deficiencies was primarily based upon its almost complete lack of administrative supervision of the facility by the licensed administrator, Mr. Fellows, being turned over to the unlicensed “business partner,” “manager,” or whatever “title,” if any, might be ascribed to Ms. Sherine Wright. One thing is certain, neither she nor Mr. Fellows were forthcoming in their attempts to respond to reasonable requests from the AHCA surveyors to examine files, reports, and other materials that were well within their rights and obligations to request to be examined during or after their surveys of the facility.
Piecing together the lengthy testimony of the various AHCA surveyors, some extremely experienced and others newer to the Agency, one overriding fact is clear: Pinewood and its staff were either directly or indirectly (as in the case of lower-level employees who were instructed by their superiors not to cooperate with the AHCA surveyors) obstructionist in every attempt by the Agency to carry out its statutory and rule responsibilities. In fact, Mr. Fellows, the administrator, was never present for a single survey, leaving Ms. Wright to represent his interests whether explicitly or implicitly. The facts clearly show this was poor judgment on Mr. Fellows’ part, since Ms. Wright, who not only refused to cooperate by turning over the requested records and materials to the surveyors, but verbally abused them and refused to grant them access to the most basic and fundamental requests, such as resident records, admission and discharge data, and complete medication records, to name but a few of the refused items.
The evidence convincingly supports the fact that
Ms. Wright, an unlicensed person having not been subjected to the statutorily-required Level 2 background screening, acted with explicit or implied authority on behalf of Mr. Fellows, the administrator. The fact that she had an unsavory criminal background, including a conviction for defrauding an elderly person, only increases the improper behavior of Pinewood and its
staff in this matter. Allowing such an individual to speak to surveyors on behalf of a licensed facility at the time of its biennial review, and allowing this individual to have access to resident rooms, belongings, and, presumably, records, speaks volumes as to how this facility has been run during the first two years of its existence.
Only providence and good fortune prevented any residents from suffering physical or emotional harm in this case. The violations, including unlocked medication carts, work schedules listing people who may not have been licensed or were employees of an equestrian operation not connected to the Pinewood licensed facility, and incomplete training records of the only licensed personnel on staff, rendered this facility a tragedy waiting to happen. Mr. Fellows could have remedied most of these issues by being more personally involved in the day-to- day operations of Pinewood, or by at least forbidding Ms. Wright from taking part in any activities on the premises of the facility unless and until she was licensed by the State of Florida in some capacity or at least background screened.
Mr. Fellows’ attempt to argue that he complied with the “Tags” or deficiencies cited by the various surveyors by attempting to demonstrate he filed a large stack of paperwork, incomplete and disorganized at best, with AHCA after the surveys, is a classic case of “too little, too late.” He would have served his
investment, and the residents, far better by making a trip to Orlando to meet with the surveyors; their supervisor, Ms. Henry, or another official with the Agency, than by what he did: allow an unlicensed individual with a checkered past to speak on his behalf and set up roadblocks to the surveyors, who were attempting to perform the essential duties of their jobs. The testimony of the surveyors, to which the undersigned assigns great weight, is that their goals here were to understand the deficiencies they noted, and to give the operators of Pinewood every opportunity to correct the deficiencies and maintain its licensure. Their attempts at protecting the residents of Pinewood were thwarted at every turn by Mr. Fellows’ inaction, by Ms. Wright’s obstructionist and hostile attitude, and by the refusal to allow the surveyors access to all the necessary records and resident interviews they required to properly perform their jobs.
As an applicant for a license, Petitioner bears the burden of proof in this proceeding to demonstrate by a preponderance of the evidence that it satisfied all the requirements for licensure and was entitled to receive the license. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670
So. 2d 932 (Fla. 1996); Fla. Dep’t of Child. & Fams. v. Davis Fam. Day Care Home, 160 So. 3d 854 (Fla. 2015).
The Agency also has the burden of presenting evidence that Petitioner had violated certain statutes and was unfit for relicensure. However, the ultimate burden remains on the Petitioner to show fitness for licensure. Any claims that the Agency has the burden of presenting its proof of Petitioner’s unfitness “by clear and convincing evidence is wholly unsupported by Florida law and inconsistent with the fundamental principle that an applicant for licensure bears the burden of ultimate persuasion at each and every step of the licensure proceedings, regardless of which party bears the burden of presenting certain evidence. This holding is also equally inconsistent with the principle that an agency has particularly broad discretion in determining the fitness of applicants who seek to engage in an occupation the conduct of which is a privilege rather than a right.” Avalon’s Assisted Living, LLC v. Ag. for Health Care Admin., Case No. 14-0610 (Fla. DOAH Jan. 21, 2015), modified in
part, Case No. 2013012638 (Fla. AHCA Mar. 3, 2015); aff’d per
curiam 187 So. 3d 1240 (Fla. 1st DCA 2016). See also Lauderhill Fam. Care Ret. Residence, Inc. v. Ag. for Health Care Admin.,
Case No. 14-0435 (Fla. DOAH May 23, 2014; Fla. AHCA Jun. 27,
2014).
The limited items the Agency must prove by the clear and convincing standard is that the deficient practice alleged in the surveys of Pinewood existed as alleged. The “clear and
convincing” standard 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.” Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla.
4th DCA 1983).
However, the Agency, in licensure denial actions, need only prove by the preponderance of the evidence, the acts or omissions which disqualify the applicant from licensure. See
Fla. Dep’t of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Dep’t of HRS, 348 So.2d 349 (Fla. 1st
DCA 1977).
Under these burdens, Pinewood has not proven by a preponderance of the evidence that it meets the minimum requirements to receive a renewal license to operate an ALF.
Compounding Petitioner’s problems in this matter is the fact that the only witness called by the facility was
Mr. Fellows, the administrator who personally took part in none of the events described in great detail by the various AHCA surveyors on-site at Pinewood in 2017. Petitioner extensively cross-examined the AHCA surveyors and recalled Mr. Kruppenbacher
as its witnesses, but no employee, officer, or agent who was present at Pinewood on the date of any AHCA surveys took the stand to offer direct testimony, from the facility’s perspective, of the events. Pinewood’s entire case rests upon Mr. Fellows’ testimony that he provided AHCA, via fax, with documentation sufficient to overcome each and every deficiency found by the Agency’s surveyors. At best, the documents submitted to AHCA might have been used to supplement or explain testimony given by Pinewood officers, agents, or employees. However, since no such individuals gave any direct testimony, this attempt to correct deficiencies, the most essential of which was a failure by Pinewood to cooperate with the surveyors’ work on-site and outright refusal of access to records, resident interviews, and medication carts, renders the documents submitted rank hearsay.
Mr. Fellows testified that he was unsure who sent the facsimile or mail submissions of records to the Agency. He testified that maybe he sent the documents or his employee, Ms. Smith, did, although she was never called to testify whether she, in fact, provided documentation to AHCA to rebut the deficiencies. This lack of diligence was symptomatic of the problem with Pinewood throughout the course of the renewal survey.
Pinewood did not present any non-hearsay evidence to corroborate Mr. Fellows’ pure hearsay testimony as to what his employees said or did during the surveys. His testimony is
discredited in this regard because he admitted he was never present at any time when the AHCA surveyors were on-site at Pinewood. The undersigned cannot make any findings of fact based upon testimony by Pinewood’s lone company witness who was never present during any of the surveyors’ time at the facility.
Mr. Fellows’ argument that AHCA is required to give the facility a “desk review,” otherwise known as an off-site review, is not supported by the law or facts as they apply to this case. Mr. Fellows failed to cite any statute, rule, or case that commands the Agency to conduct such a review based upon documentation submitted to it. Additionally, Mr. Fellows never requested a desk review from the field office. Rather, ostensibly, someone from Pinewood sent piecemeal documentation that, even if authenticated, does not support negating the Agency’s findings and deficiencies found during its facility reviews. In any event, the Agency determined that Pinewood was not eligible for a desk review. As found above in the Findings of Fact, Pinewood’s employee Sherine Wright would not give surveyors access to full resident and staff files at the facility on April 27, 2017, which is required. See § 408.811, Fla. Stat. Pinewood’s willingness to fax over piecemeal versions of that file would not cure this deficient practice. Additionally, Pinewood had deficient practices recognized on the April 27, 2017, survey that required Agency personnel to observe the ALF’s
staff interactions with residents. A desk review could not have cured that deficient practice either. Finally, Pinewood had deficiencies related to how its staff maintained and protected the medication cart. A desk review would not allow the surveyor to observe medication pass mechanics and practices to determine whether the cart was properly stored and locked when medications were being dispensed to the residents.
In considering whether Pinewood could have unilaterally submitted documentation to AHCA addressing the deficiencies found by the Agency, one of AHCA’s rules is relevant to the discussion. Rule 59A-35.120 provides in pertinent part:
When regulatory violations are identified by the Agency:
Deficiencies must be corrected within
30 days of the date the Agency sends the deficiency notice to the provider, unless an alternative timeframe is required or approved by the Agency.
The Agency may conduct an unannounced follow-up inspection or off-site review to verify correction of deficiencies at any time.
If an inspection is completed through off-site record review, any records requested by the Agency in conjunction with the review, must be received within 7 days of request and provided at no cost to the Agency. Each licensee shall maintain the records including medical and treatment records of a client and provide access to the Agency.
The Agency did not request that any documentation be submitted from Pinewood for an off-site review or “desk review.” There is no statutory or regulatory requirement that the Agency
conduct a desk review--even if the facility submits documentation to the field office or if the facility requests such review on its own initiative. The Agency’s ability to conduct a follow-up inspection or off-site review is discretionary. As specified in the above paragraphs, the Agency did not elect to give Pinewood an off-site review. To the extent the AHCA surveyors were given access to Pinewood’s records at the follow-up survey of
August 10, 2017, the uncontroverted facts in this case support that Pinewood had not maintained the records it submitted to AHCA via facsimile for its self-proclaimed “desk review.”
The rule cited above, on its face, makes the determination of the Agency to conduct an on-site or off-site review after an initial survey, one within the Agency’s discretion. It is not within the province of the undersigned to suggest how the Agency should have acted in this matter with respect to an on-site versus an off-site follow-up survey of Pinewood. The Agency provided several, rational explanations for conducting the follow-up survey in person, almost all concerning patient safety and the need for personal observations as opposed to a paper review, for determining whether various tasks were being performed appropriately at Pinewood. Moreover, the Agency’s live testimony and documentary evidence presented at hearing were admitted into the record with little or no resistance from Pinewood; were based upon the personal
observations of the surveyors on-site at the various follow-up visits, with their live testimony confirming both what they observed when present at Pinewood and the obstacles to gathering information they attempted to overcome at the ALF; and the fact that Pinewood failed to call a single witness at hearing who was present during the interactions with the surveyors on-site.
Regardless of whether the standard of proof in this matter were a preponderance of the evidence or clear and convincing evidence, the Agency achieved the greater standard due to the clarity of its presentation at hearing combined with the near total lack of defense by Pinewood concerning its actions and inactions both in dealing with the surveyors and in operating its facility. The undersigned cannot ignore the largely uncontroverted evidence offered by AHCA in its case-in-chief that was so straightforwardly presented by the Agency surveyors.
The Agency offered several grounds for denying the renewal of Pinewood’s license to operate. Any one of them supports denying the renewal. Taken together, no conclusion can be reached short of denying the licensure denial. Section 408.815(1)(c) provides that the Agency may revoke or deny ALF licensure where the provider engages in “[a] violation of this part, authorizing statutes, or applicable rules.” For the reasons set forth throughout this Recommended Order, Pinewood has
been shown to have consistently and clearly violated numerous authorizing statutes and applicable rules.
Section 408.815(1)(d) provides that the Agency may revoke or deny ALF licensure where the provider engages in a demonstrated pattern of deficient practice. Pinewood has clearly and convincingly engaged in a demonstrated pattern of deficient practice during its initial two-year licensure period, with citations for 24 Class III deficiencies, including nine that remained uncorrected; three unclassified violations involving background screening; and three Class II deficiencies in a four- month period during the facility’s biennial review. A “demonstrated pattern of deficient practice” is not defined by law. See § 408.815(1)(d), Fla. Stat. The Agency has not defined what constitutes a “demonstrated pattern of deficient performance.” The dictionary definition of “pattern” is “a representative sample.” The American Heritage Dictionary 911
(2nd College Edition 1982). A “demonstrated pattern of deficient performance” has been found in many disparate situations. In Senior Living Lifestyles, LLC, d/b/a Kipling Manor Retirement
Center v. Agency for Health Care Administration, Case No. 13-4660 (Fla. DOAH Jun. 10, 2014), rejected in part, Case No. 2013009388
(Fla. AHCA Jul. 29, 2014); aff’d per curiam Jul. 30, 2015 (Fla. 1st DCA 2015), 119 deficient practices were found to constitute a demonstrated pattern of deficient practice. In Avalon, the
deficient practice related to two residents, which constituted a demonstrated pattern of deficient performance.
In this case, the Agency proved deficient practice related to three of the three staff members, and as to five of its five residents, and proved 30 deficiencies. The Agency proved all of these deficient practices by clear and convincing evidence, thus demonstrating that Pinewood had engaged in a pattern of deficient practice justifying the denial of the license renewal.
From April 27, 2017, through August 17, 2017, Pinewood was unable to demonstrate compliance with the regulatory provisions for operating an ALF. See § 408.806(7)(a), Fla. Stat.
As set out above, during this period Pinewood did not pass a single biennial survey, a revisit survey, a complaint survey, or monitoring surveys, and thus never demonstrated regulatory compliance. The ongoing failure of Pinewood’s inability to operate its facility in compliance with minimum regulatory standards is apparent and has been proven by clear and convincing evidence. This places the health and safety of its residents at continued risk. Therefore, the Agency has proven sufficient grounds to deny Pinewood’s license.
As set forth above, Pinewood failed to achieve and maintain regulatory compliance with the minimum licensing requirements during the licensure period. Pinewood did not pass
a single survey during the licensure period. Further, Pinewood presented no competent evidence to support its entitlement to licensure. Pinewood’s ongoing and persistent failure to meet minimum licensing requirements justifies the Agency’s denial of its license. The statutory provisions cited mandate the Agency’s denial of licensure. These provisions do not limit the Agency’s consideration for licensure action to violations that reach the most severe classifications of identified deficient practice, but encompass the totality of violations that the Agency has identified.
The Agency cited additional reasons for its authority to deny Petitioner renewal of its license to operate an ALF. None of the additional reasons are more compelling than those set forth above. Every violation proved by the Agency was by clear and convincing evidence. In those instances where Petitioner had the opportunity to prove entitlement to renewal by a preponderance of the evidence, it failed miserably. Pinewood’s refusal to cooperate with the simplest of requests by the surveyors; its repeated actions to prevent full access on each occasion of a visit or revisit by the surveyors; and its complete lack of institutional and managerial control of its facility not only support the Agency’s denial of licensure renewal, but mandate such action by AHCA.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order upholding the Agency’s decision to deny Pinewood’s application for relicensure.
DONE AND ENTERED this 30th day of November 2018, in Tallahassee, Leon County, Florida.
S
ROBERT S. COHEN
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 30th day of November, 2018.
COPIES FURNISHED:
Lourdes A. Naranjo, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed)
Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration
525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed)
Peter Fellows
Pinewood Estates Assisted Living Facility 4055 Pinewood Road
Melbourne, Florida 32934 (eServed)
Richard Shoop, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Shena Grantham, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Thomas M. Hoeler, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Stefan Grow, General Counsel
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Justin Senior, Secretary
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1
Tallahassee, Florida 32308 (eServed)
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 |
|---|---|---|
| Dec. 21, 2018 | Agency Final Order | |
| Nov. 30, 2018 | Recommended Order | Petitioner committed numerous statutory and rule violations, which went largely uncorrected after AHCA notified it, then followed up with multiple site visits. The Agency should deny Petitioner's application for relicensure as an ALF. |
| Nov. 30, 2018 | Amended RO |
