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APD – Ojiwe Arms of Comfort FO │Page 1 of 27
FINAL ORDER
This case is before the Agency for Persons with Disabilities (“Agency”) for entry of a Final Order concerning the Agency’s revocation of the Ojiwe Arms of Comfort Group Home’s (“Ojiwe”) license to operate as a group home facility and the Agency’s denial of Ojiwe’s application for licensure of a new group home.
FACTUAL BACKGROUND
On October 20 and 21, 2020, an Administrative Law Judge ("ALJ") of the Division of Administrative Hearings (“DOAH”) conducted an administrative hearing with both parties and their witnesses attending via video teleconference. The ALJ issued a Recommended Order on December 30, 2020. A copy of the Recommended Order is attached to this Final Order as Exhibit A.
The Recommended Order’s Findings of Fact include the following: Alonda Chambers identified herself as owner, on-site manager, and licensee of the Ojiwe group home. Recommended Order at ¶ 2. Ms. Chambers also submitted the initial and amended application for licensure of a new group home. Id.
The Agency denied Ms. Chambers’ application for licensure of a new group home because the Department of Children and Families (“DCF”) identified Ms. Chambers as responsible for the abuse, neglect, or exploitation of a vulnerable adult. Id. at ¶ 4.
It was alleged that a resident of Ojiwe group home was prescribed Abilify and the medication was abruptly discontinued, causing the resident’s condition to deteriorate. Id. at ¶ 5.
The resident had been residing in a group home setting since 2011 and had been prescribed Abilify approximately ten years ago. Id. at ¶ 7. The resident’s mother testified about his medical conditions and need for maximum supervision for his medication regimen in order to function on a daily basis. Id. at ¶ 7.
In or about July, August, and September of 2018, the resident’s mother discovered that he had been uncharacteristically absent from his job and was exhausted, anxious, and depressed. Id. at ¶ 10. She chose to have her son spend the night in her home so that they could visit his doctor the following morning for testing. Id. at ¶ 11.
During these overnight visits, Ojiwe provided the resident’s mother with the medications he needed for the period of his anticipated stay away from the group home. Id. On or about September 23, 2018, the resident’s mother realized she was not given her son’s Abilify. Id. She immediately contacted Ms. Chambers and discovered the next day that he had not been receiving his Abilify for 30 days. Id.
Ojiwe notified the pharmacy when the resident’s prescription was due for a refill, but the pharmacy contacted a physician he had not seen for three years for authorization. Id. at ¶ 12. That physician understandably declined to order the refill.
Id. Ojiwe did not note that the refill was not obtained, which resulted in the resident stopping the medication “cold turkey.” Id. This is not recommended for a mood stabilizing medication like Abilify. Id.
The DCF investigator, Darryl Watson, collected documents and interviewed Ms. Chambers, the affected resident’s mother, individuals at the pharmacy, and others. Id. at ¶ 6. Investigator Watson then reviewed all evidence he collected and made the final determination to verify Ms. Chambers committed medical neglect. Id. at ¶ 13.
Although Ojiwe disputes the DCF finding, the ALJ found the issue with the pharmacy is best summarized as stated in the DCF report:
It looks as though the pharmacy made the error here and unfortunately physicians and pharmacies make errors often that’s why there are hospitals, homes, and nurses who are patient advocates who are supposed to pick up on these sorts of things. In fact, one of the most important things a nurse can do in his or her career is preventing medication errors for their patient’s [sic]. The ideology is simple, the buck stops with the nurse, or in this case the facility, facility owner, and/or the nurses. . .
(Recommended Order at ¶ 14 & Petitioner’s Exhibit 4 at 34).
Adella Earle is employed by the Agency as a medical case manager and is a licensed registered nurse. Id. at ¶ 16. In response to a complaint from the resident’s mother, Ms. Earle visited the Ojiwe group home to review the facility records and check on the welfare of the other residents. Id. at ¶ 17. Ms. Earle’s September 25,
2018 visit revealed multiple medication errors in Ojiwe’s records, including expired medications and errors in documentation. Id.
Based on the medication errors identified by Ms. Earle, the Agency issued a Notice of Noncompliance to Ojiwe that required Ojiwe staff to retake the medication administration class and receive validation on administration of medications. Id. at
¶ 18. Ms. Chambers was also verbally notified of these requirements and submitted a Corrective Action Plan to the Agency on November 5, 2018. Id.
Ms. Chambers submitted evidence that she completed the required trainings, but admitted other staff were not retrained. Id.
In February of 2019, Ms. Earle reviewed medical records for residents at Ojiwe and visited the group home. Id. at ¶ 20. Ms. Chambers was not present and neither of the two staff who were present were trained and validated on medication administration. Id.
Despite the Corrective Action Plan, Ms. Earle discovered numerous problems with Ojiwe’s record keeping. Id. at ¶ 21. The ALJ found that the observed errors impacted the health and safety of the residents because, without proper records, there is no assurance that they are receiving the treatments that are ordered. Id. at ¶ 22. The ALJ also found that medication errors can be one of the most life-threatening issues that an Agency client can face. Id. There is no dispute that at least one resident did not receive the proper medications. Id; see supra ¶ 7 – 8.
The Agency issues a Notice of Noncompliance that it calls a Regional Operations Manager (“ROM”) Letter in response to repeat or class one violations. Id. at ¶ 24. ROM letters are sometimes issued in lieu of filing an administrative complaint in order to give the licensee opportunity to correct the deficiencies. Id.
The Agency issued a ROM letter to Ojiwe on April 17, 2019 outlining various areas of noncompliance as described in this Final Order. Id. at ¶ 25. Ojiwe had ten days after receipt of the letter to submit a corrective action plan. Id. Although the Agency outlined the specific requirements of the corrective action plan to be submitted, Ms. Chambers and Ojiwe failed to comply. Id.
All providers who render direct care to Agency clients or have access to a client’s living areas, funds, or personal property must comply with background screening requirements established in section 393.0655, Florida Statutes, and chapter 435, Fla. Stat. Id. at ¶ 27 & 29. Employers of persons who are required to have background screening must maintain the employment status of all employees in a database called the Care Provider Background Screening Clearinghouse pursuant to section 435.12(2)(c), Fla. Stat. Id. at ¶ 29.
On April 28, 2019, Tameika Anderson arrived at Ojiwe and began administering medications to the residents. Id. at ¶ 30. A review of the Care Provider Background Screening Clearinghouse indicated that Ms. Anderson was not an employee of Ojiwe, which the ALJ found constitutes failure to comply with the
background screening requirements established in section 393.0655 and chapter 435.
Id.
LEGAL STANDARD FOR EXCEPTIONS
An agency has limited authority to overturn or modify an ALJ’s findings of fact. See, e.g., Heifetz v. Dep’t of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985) (reasoning that “[i]t is the hearing officer's [or ALJ’s] function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.”); see also Gross v. Dep't of Health, 819 So. 2d 997, 1000–01 (Fla. 5th DCA 2002); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 3rd DCA 1985). The Agency is not authorized to “weigh the evidence presented, judge the credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.” Bridlewood Group Home v. Agency for Persons with Disabilities 136 So. 3d 652, 658 (Fla. 1st DCA 2013) (quoting Heifetz, 475 So. 2d at 1281). In addition, it is not proper for the Agency to make supplemental findings of fact on an issue about which the ALJ made no finding. See Florida Power & Light Co. v. State of Florida, Siting Board, et al., 693 So. 2d 1025, 1026 (Fla. 1st DCA 1997).
Section 120.57(1)(k)-(l), Fla. Stat. provides the following with respect to exceptions to findings of fact and conclusions of law in a Recommended Order issued by an ALJ:
The presiding officer shall complete and submit to the agency and all parties a recommended order consisting of findings of fact, conclusions of law, and recommended disposition or penalty, if applicable, and any other information required by law to be contained in the final order. All proceedings conducted under this subsection shall be de novo. The agency shall allow each party 15 days in which to submit written exceptions to the recommended order. The final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating
with particularity its reasons therefor in the order, by citing to the record in justifying the action.
(Emphasis added).
Ojiwe timely filed exceptions and the Agency timely filed a response to those exceptions. Pursuant to Section 120.57(1)(k), these exceptions are addressed individually below.
Petitioner Filed Its Complaint Against the Wrong Party in Interest
Ojiwe first requests exception to footnote 2 on page 4 of the Recommended Order based on the Agency filing its Administrative Complaint against the wrong party in interest. See ¶ 9, 21 of Ojiwe’s Exceptions. Specifically, Ojiwe argues that the Agency’s representative made no reference to Ojiwe Arms of Comfort Group Home being owned and operated by Ojiwe Gentle Care of S. FL, LLC. Id. at ¶ 10. Ojiwe also states, “Ojiwe Arms of Comfort Group Home does not exist nor is it owned and operated by Ojiwe Gentle Care of S. Fl. LLC.” Id. at ¶ 11.
The ALJ made a specific finding on this argument in footnote 2 as follows:
Ojiwe, for the first time in its Proposed Recommended Order, claims that the wrong party in interest was named in the Administrative Complaint. This is in direct contradiction to its representation in its Unilateral Pre-Hearing Stipulation, filed October 19, 2020, that it admitted to the facts in paragraphs 1 through 6 of the Administrative Complaint. Paragraphs 2 and 3 set forth the address of the group home licensee and states, “[a]ccording to the Florida Division of Corporations, Ojiwe Gentlecare of S FL, LLC is a registered and active Florida limited liability corporation. Alonda Bivens (also known as Alonda Chambers) is identified as owner, manager, and registered agent of Ojiwe Gentlecare of S FL, LLC.” Given this stipulation, no
further proof of ownership needed to be presented at the final hearing by APD.
When a case is tried upon stipulated facts, the stipulation is binding such that no other or different facts will be presumed to exist. See Landmark American Insurance Co., v. Pin-Pon Corp. 267 So. 3d 411, 412-13 (Fla. 4th DCA 2019). The ALJ correctly concluded that, based on Ojiwe’s stipulation as to paragraphs 2 and 3 of the Administrative Complaint, no further proof of ownership needed to be presented.
In addition, the Certificate of License states that the licensee is Ojiwe Arms of Comfort, Inc., a group home. See Petitioner’s Exhibit 1. Ojiwe’s exception suggests that Ojiwe Arms of Comfort, Inc., is not the same as Ojiwe Arms of Comfort Group Home. As the ALJ found, this contradicts the Ojiwe’s Unilateral Pre-Hearing Stipulation filed on October 19, 2020.
Ojiwe further argues that disciplinary statutes and rules "must be construed in favor of the one against whom the penalty would be imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); et al. Contrary to Ms. Chambers responding to the Administrative Complaint, Ojiwe’s stipulation, and this case being open for almost a year before Ojiwe raised this issue, Ojiwe requests exception to the footnote addressing the Agency’s allegedly filing its administrative complaint against the wrong party. For the reasons discussed supra
paragraphs 24 through 26, this exception is denied.
It is also worth noting that Ojiwe’s requested exception is, in essence, an attempt to reject all the ALJ’s findings of fact and conclusions of law, which section 120.57(1) does not authorize without specifically addressing the rationale for each rejection or modification. See supra ¶ 21. As the Agency stated in its Response to Ojiwe’s Exceptions, if footnote 2 of the Recommended Order were rejected or modified, the ALJ’s findings of fact and conclusions of law would remain. Ojiwe has neither requested exception to nor demonstrated a legal basis for modifying or rejecting the ALJ’s findings of fact and conclusions of law. The Agency has no duty to rule on any other portion of the Recommended Order pursuant to section 120.57(1)(k), Fla. Stat.
Oath Not Administered to Ojiwe, Alonda Chambers
Ojiwe requests exception to footnote 2 on page 4 of the Recommended Order on the basis that Ms. Chambers was not properly administered the oath prior to testifying in violation of section 90.605, Fla. Stat. The ALJ addressed this issue in footnote 2 as follows:
Ojiwe argues that it was error on the part of the tribunal not to swear in Ms. Chambers and that somehow this error precludes her testimony from being considered. A review of the Transcript shows that in fact, Ms. Chambers was not sworn in. It should be noted that her testimony came after Ms. Chambers unexpectedly requested that the final hearing not go forward because she just learned her counsel had done no preparation of the case during the preceding year during its pendency. Citing her counsel’s “negligence and failure to comply with the rules of evidence,” she stated, “I am unable to proceed as I am at a loss of competent counsel.” See Tr. p. 354, lines 3-12. A ten-minute recess was
permitted to allow Ms. Chambers the opportunity to decide whether to proceed with or without counsel or to withdraw from the proceeding. After the recess, Ms. Chambers elected to move forward with counsel. Her attorney started his questioning of her without the oath being administered and no one called this oversight to the attention of the undersigned. However, it was assumed that Ms. Chambers, who previously sat through the rest of the witness testimony for the final hearing, understood the oath and that she testified truthfully to the best of her ability. Accordingly, there was no harm to Ms. Chambers’ or Ojiwe’s due process rights.
(Emphasis added).
Ojiwe cites several criminal law cases in support of its argument, but none conclude that due process was denied because the defendant was not properly administered the oath –particularly when his or her testimony was in fact considered by the Court. Contrary to the cases cited by Ojiwe, the ALJ concluded that Ms. Chambers understood the importance of testifying truthfully and testified at length without restriction. No administrative law cases were cited.
As the ALJ found, Ojiwe failed to timely object or otherwise notify the ALJ of the error. Ojiwe’s failure to timely object at the evidentiary hearing is fatal to its argument on this point. See Murphy v. State, 667 So. 2d 375, 376 (Fla. 1st DCA 1995) (attorney waived objection to witness’ failure to take the oath by not objecting during the evidentiary hearing).
In addition, Ojiwe’s exception relating to due process is not a legal conclusion over which the Agency has substantive jurisdiction. See § 120.57(1)(l), Fla. Stat.;
Barfield v. Dep’t of Health, 805 So. 2d 1008, 1010-1011 (Fla. 1st DCA 2001). As
such, the Agency cannot reject the ALJ’s ruling on this issue and this exception is denied.
The Court’s Failure to Grant Ojiwe’s Motion to Continue Violated the Ojiwe’s Right to a Fair Trial
Ojiwe requests exception to footnote 1 on page 3 of the Recommended Order based on the ALJ’s denial of its fifth and sixth motion to continue. Ojiwe does not cite a particular finding of fact or conclusion of law but instead argues that the ALJ’s denial of Ojiwe’s motions to continue amounts to a due process violation.
The referenced footnote reads, “See Order Denying Motion for Continuance dated October 16, 2020, for history of Ojiwe’s repeated motions to continue.”
The Preliminary Statement where the footnote appears reads as follows:
By agreement of the parties and order of this tribunal, the cases were consolidated and originally set for hearing for November 5 and 6, 2019. Counsel for Ojiwe subsequently filed six motions to continue the hearing, four of which were granted. The final hearing was held as scheduled for October 20 and 21, 2020. APD timely filed a list of its proposed exhibits on October 13, 2020, and its Unilateral Pre-Hearing Statement on October 14, 2020. Ojiwe untimely filed its Unilateral Pre- Hearing Statement at 5:58 P.M. on October 19, 2020, less than 24 hours before the hearing was set to begin.
On the day before the final hearing, Ojiwe also filed a Motion to Continue Based on Newly Discovered Evidence. This motion was denied at the outset of the final hearing because the evidence was only “newly discovered” because counsel for Ojiwe failed to undertake any discovery on behalf of his client during the year-long period during which the case was pending; failed to issue any subpoenas for final hearing; failed to previously identify any witnesses or exhibits for final hearing; and failed to confer with opposing counsel regarding the motion.
Ojiwe cites no legal authority that would allow the Agency to overturn the ALJ’s rulings on motions and objections. As discussed supra paragraph 32, constitutional issues such as due process are not legal conclusions over which the Agency has substantive jurisdiction. As such, this exception is denied.
The Court Erred by Denying Ojiwe’s Motion to Allow Witness Testimonies
Ojiwe requests exception to page 3 of the Recommended Order based on the ALJ’s denial of Ojiwe’s motion to allow witness testimonies. Ojiwe argues that this constitutes a denial of due process.
The ALJ addressed this issue in the Preliminary Statement discussed supra paragraph 35 of this Final Order. As discussed supra paragraph 36 (citing supra paragraph 32), section 120.54(1)(l), Fla. Stat. does not authorize an agency to overturn an ALJ’s rulings on motions and objections because they are not conclusions of law over which it has substantive jurisdiction. As such, this exception is denied.
The Court Erred by Denying the Testimony of an Available Critical Witness, Dr. Danet
Ojiwe requests exception to page 3 of the Recommended Order based on the ALJ’s denial of Dr. Danet’s testimony. Ojiwe argues that this constitutes a denial of due process and, had the testimony been permitted, the outcome of the hearing would have been different.
As Ojiwe references in its Exceptions to the Recommended Order, the ALJ excluded this testimony because the witness list that first identified Dr. Danet was provided the night before the hearing. The ALJ specifically stated, “It was untimely, therefore she is not permitted to testify at this hearing. [The Agency] had no way to prepare for her testimony.” Hearing Tr. 278-279. The ALJ also addressed this issue as discussed supra paragraph 35 of this Order.
This requested exception is also not a conclusion of law over which the Agency has substantive jurisdiction. See supra ¶ 32. As such, it is denied.
In addition, the requested relief is to disapprove the Recommended Order and dismiss the case against Ojiwe rather than reject or modify a particular finding of fact or conclusion of law pursuant to section 120.57(1), Fla. Stat. Like the discussion supra paragraph 28 of this Final Order, even if a specific exemption to page 3 were granted, the ALJ’s other findings of fact and conclusions of law would remain.
The Petitioner Did Not Meet Its Burden of Proof as to Count I of the Complaint
Ojiwe requests exception to page 6 of the Recommended Order, which includes multiple findings of fact pertaining to the verified finding of medical neglect against Ojiwe. Ojiwe does not specify which paragraphs this requested exception applies but appears to request rejection of all findings of fact.
Citing a few lines from the transcript, Ojiwe argues, “Mr. Watson states that
he is merely 50.1% certain that the verified finding should have been sustained.” As
such, Ojiwe argues that there is not clear and convincing evidence to support the ALJ’s findings and ultimate recommendation.
A review of the complete record reveals that the ALJ ruled that this was a misrepresentation of the testimony at the hearing. (Hearing Tr. 242-243). The following interaction occurred during the hearing:
. . .
(Hearing Tr. 242-243).
Ojiwe’s requested exception amounts to re-weighing the evidence presented and making different credibility determinations from that of the ALJ, which is clearly prohibited. Supra ¶ 20; see also Heifetz, 475 So. 2d at 1281 (“If. . . the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other. The agency may not reject the hearing officer's finding unless there is no competent, substantial evidence from which the
finding could reasonably be inferred.”). There is competent, substantial evidence in the record to support the ALJ’s findings. As such, this exception is denied.
The Petitioner Did Not Meet Its Burden of Proof as to Count II of the Complaint
Ojiwe requests exception to page 8 of the Recommended Order, again without referencing specific paragraphs. This requested exception reiterates what is essentially the same exception discussed supra paragraphs 29 to 32 and 37 to 38 regarding the failure to administer the oath and admit untimely evidence. As such, it is denied for those same reasons.
In addition, Ojiwe requests the Agency to re-weigh the evidence presented and make different findings of fact without any specific reference to the record. See
¶ 65 of Ojiwe’s Exceptions to Recommended Order. Section 120.57(1)(k), Fla. Stat. provides, “an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.” To the extent that the ALJ’s findings of fact on page 8 are based on competent, substantial evidence and Ojiwe has demonstrated nothing to the contrary, this exception is denied.
The Petitioner Did Not Meet Its Burden of Proof as to Count III of the Complaint
Ojiwe requests exception to page 9 of the Recommended Order but again does not specify which findings of fact are not based on competent, substantial evidence. Ojiwe also cites to evidence that the ALJ did not admit due to its untimeliness. See supra ¶ 35.
Ojiwe alleges that the testimony of Adela Earle does not address the allegations of the complaint and the ALJ’s findings do not correspond with the Administrative Complaint. However, a review of pages 179 through 192 of the transcript reveals that Ms. Earle did testify as to the allegations in Count III. Petitioner’s Exhibits 6 through 8 also substantiate the ALJ’s findings of fact on this count.
Although Ms. Chambers provided testimony contrary to one of the findings of fact on page 9, the ALJ appropriately weighed the evidence and rendered her findings based on competent, substantial evidence. As such, this exception is denied.
The Petitioner Did Not Meet Its Burden of Proof as to Count IV of the Complaint
Ojiwe requests exception to page 10 of the Recommended Order because Ms.
Chambers provided testimony that is contrary to the ALJ’s findings of fact. Ojiwe also alleges that no rebuttal testimony was offered to contradict Ms. Chambers’ testimony.
Contrary to Ojiwe’s arguments, pages 163 through 178 and pages 223 through
239 of the transcripts reveal that Kimberly Carty and Kimberly Walsh both provided
testimony regarding Count IV of the Administrative Complaint. Petitioner’s Exhibits 9 through 13 corroborate this testimony. Ojiwe’s exception asks the Agency to re-weigh the evidence, judge the credibility of witnesses, and otherwise interpret the evidence, which is not permitted by law. See supra ¶ 20.
With respect to not providing rebuttal testimony, it is important to note that the ALJ sustained an objection with respect to the subject matter Ojiwe cited in this exception. Hearing Tr. 246-47. Although Ms. Chambers’ testimony differs from Ms. Carty and Ms. Walsh’s, there is competent, substantial evidence in the record to support the ALJ’s findings. As such, this exception is denied.
Further, Ojiwe cites paragraphs of the Administrative Complaint in this requested exception that relate to Count V, not Count IV (“Petitioner provided no evidence as to paragraphs 37 through 47 of the Complaint.”). This will be discussed below.
The Petitioner Did Not Meet Its Burden of Proof as to Count V of the Complaint
Ojiwe requests exception to page 10 of the Recommended Order because Nurse Elizabeth Torres did not testify in the case. Ojiwe also argues that there is no evidence that a monitoring visit to Ojiwe Group Home actually occurred on April 28, 2019.
The ALJ’s findings with respect to Count V come directly from Ojiwe’s
Stipulations, which were filed on November 11, 2019. Specifically, Ojiwe admitted to the following:
A review of the medication administration records for April 25, 2019, indicated that Respondent Alonda Chambers documented that she had administered medications at 8 pm on April 25, 2019. (Complaint at ¶ 42).
Nurse Torres reviewed the medication administration records after Ms. Baker left the Ojiwe group home on April 26, 2019. Ms. Baker documented administration of topical medications that she did not administer. Ms. Baker had also documented administration of medications that were not scheduled to be administered until 8:00 pm on April 26, 2019. (Complaint at ¶ 43).
Shortly before 9:00 am on April 28, 2019, Tameika Anderson arrived at Ojiwe Group Home and began administering medication to the residents at approximately 9:00 am. A review of the Care Provider Background Screening Clearinghouse Roster indicated that Ms. Anderson was not an employee of Ojiwe Arms of Comfort Group Home. (Complaint at ¶ 46).
These stipulations support the ALJ’s findings of fact on this count. See Landmark American Insurance Co., v. Pin-Pon Corp. 267 So. 3d 411, 412-13 (Fla. 4th DCA 2019) (citing Troup v. Bird, 53 So.2d 717, 721 (Fla. 1951) (“When a case is tried upon stipulated facts the stipulation is binding. . . [such] that no other or different facts will be presumed to exist.”). Those stipulations also support the related legal conclusion that Ojiwe failed to comply with the screening requirements of section 393.0655 and Chapter 435, Florida Statutes. As such, this exception is denied.
Respondent’s previous exception also describes lacking evidence regarding a
“Mrs. Baker” who is not referenced in the Recommended Order. See supra ¶ 55. It
is not proper for the Agency to make supplemental findings of fact on an issue about which the ALJ made no finding. See Florida Power & Light Co. v. State of Florida, Siting Board, et al., 693 So. 2d 1025, 1026 (Fla. 1st DCA 1997). As such, this exception is denied.
CONCLUSIONS OF LAW
Section 393.0673, Fla. Stat. sets forth the Agency’s authority for denying, suspending, and revoking a residential facility’s license as follows:
The agency may revoke or suspend a license or impose an administrative fine, not to exceed $1,000 per violation per day, if:
The licensee has:
Falsely represented or omitted a material fact in its license application submitted under s. 393.067;
Had prior action taken against it under the Medicaid or Medicare program; or
Failed to comply with the applicable requirements of this chapter or rules applicable to the licensee; or
The Department of Children and Families has verified that the licensee is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult.
The agency may deny an application for licensure submitted under s. 393.067 if:
The applicant has:
Falsely represented or omitted a material fact in its license application submitted under s. 393.067;
Had prior action taken against it under the Medicaid or Medicare program;
Failed to comply with the applicable requirements of this chapter or rules applicable to the applicant; or
Previously had a license to operate a residential facility revoked by the agency, the Department of Children and Families, or the Agency for Health Care Administration; or
The Department of Children and Families has verified that the applicant is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult.
Rule 65G-2.009(12), Florida Administrative Code requires the licensee to ensure medication is properly administered to clients in accordance with the written order or prescription. When there is evidence of medication errors, ongoing staff re- training and competency-based verification of skills must be provided to correct staff practices and prevent future occurrence(s) in accordance with Rule 65G- 2.009(12)(a). A violation of that paragraph that results in “a direct, negative impact to the health and safety of the individual, or present[s] an imminent danger to the individual shall constitute a Class I violation.”
Rule 65G-2.0041(4)(a)2. allows the Agency to penalize Class 1 violations with a moratorium on admissions; suspension, denial, or revocation of the license; nonrenewal of licensure; or a fine of up to $1,000 dollars per day per violation.
Rule 65G-2.0041(4)(a)1. states that “Class I violations include all instances where the Department of Children and Families has verified that the licensee is responsible for abuse, neglect, or abandonment of a child or abuse, neglect or exploitation of a vulnerable adult.”
As owner and operator of Ojiwe, Ms. Chambers was responsible for medication management and documentation. Recommended Order at ¶ 35. The ALJ concluded that although the failure to refill the resident’s Abilify was the fault of the
pharmacy, Ms. Chambers failed to notice the error, documented that the resident was receiving his medication when he was not, and “her carelessness resulted in his needless suffering, negative repercussions at his job, and subjection to needless medical testing.” Id.
It is also undisputed that, although Ms. Chambers completed the required trainings, other staff were not re-trained. See supra ¶ 13 & Recommended Order at
¶ 37. This violates Rule 65G-2.009(12)(a) and the Corrective Action Plan issued to Ms. Chambers. See supra ¶ 12 & 61.
There were subsequent medication errors after the Agency issued a Notice of Noncompliance requiring staff to be retrained on medication administration. See supra ¶ 12, 14, & 15 & ¶ 39 of the Recommended Order. Ojiwe then also failed to sufficiently respond to a ROM Letter. See supra ¶ 17 & Recommended Order at ¶ 25.
Rule 65G-2.0041 describes various factors the Agency must consider when determining whether to impose disciplinary action against a licensee and which action to impose, including the gravity of the violation(s), whether serious physical injury could have resulted from the violation(s), whether the violation is a repeat violation, whether the licensee willfully committed the violation(s), and the lack of remedial action by the licensee.
Rule 65G-2.0041(3)(d) states, “Failure to complete corrective action within the designated timeframes may result in revocation or non-renewal of the facility’s license.”
Section 393.0655 requires all direct care service providers who provide care or services, have access to a client’s living areas, or have access to a client’s funds or personal property to pass level 2 background screening pursuant to chapter 435.
As discussed supra paragraph 19 and paragraph 42 of the Recommended Order, Ms. Anderson was not listed in the Care Provider Background Screening Clearinghouse for and was not an employee of Ojiwe. As such, Ojiwe failed to comply with the background screening requirements established in section 393.0655 and chapter 435.
Section 393.0673(1)(a)3. authorizes the Agency to revoke a license if the licensee has failed to comply with the applicable requirements of this chapter or applicable rules. Ojiwe has failed to comply with several applicable statutory and rule requirements, two of which independently authorize the Agency to revoke Ojiwe’s license. See supra ¶ 61 – 62 & 64 – 68. The third also presents a risk to the health and safety of clients by allowing a provider who was not background screened to provide care to them. See supra ¶ 69 – 70.
Considering the serious and potentially life-threatening consequences, repeat occurrences, and failure to remediate these errors, the Agency is justified in revoking Ojiwe’s license. See Recommended Order at ¶ 39 & 41.
In addition, section 393.0673(1)(b) authorizes the Agency to revoke a license if DCF has verified that the licensee is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult. DCF verified that Ms. Chambers is responsible for the medical neglect of at least one resident of Ojiwe. See supra ¶ 9. As the ALJ found, the Agency is justified in relying on this verified finding and appropriately initiated revocation of the license for the existing home. See Recommended Order at ¶ 36.
Similarly, section 393.0673(2)(a)3. authorizes the Agency to deny a license if the licensee has failed to comply with the applicable requirements of this chapter or applicable rules. As discussed above, Ojiwe failed to comply with several statutory and rule requirements that jeopardize the health and safety of residents. The Agency is justified in denying the license application on that basis. See Recommended Order at ¶ 43.
In addition, section 393.0673(2)(b) authorizes the Agency to deny a license if DCF has verified that the licensee is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult. DCF verified that Ms. Chambers is responsible for the medical neglect of a resident
March 15, 2021
Copies furnished to:
Trevor Suter, Esq. Frantz Olivier, Esq. Agency for Persons with Disabilities Olivier & Associates, P.A.
4030 Esplanade Way, Suite 315C 777 Northeast 79th Street, Suite 104 Tallahassee, Florida 32399-0950 Miami, Florida 33138 Trevor.Suter@apdcares.org OlivierandAssociates@gmail.com
DOAH Rita Castor
1230 Apalachee Parkway Regional Operations Manager
Tallahassee, FL 32399-3060 APD Southeast Region
Filed via e-ALJ
I HEREBY CERTIFY that a copy of this Final Order was provided by regular US or electronic mail to the above individuals at the addresses listed on March 15, 2021.
_/s/ Danielle Thompson
Danielle Thompson, Esq. Agency Clerk
Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335
Tallahassee, FL 32399-0950 APD.Agencyclerk@apdcares.org
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OJIWE ARMS OF COMFORT NORTH, OWNED AND OPERATED BY OJIWE GENTLECARE OF S FL, LLC, Petitioner, vs. AGENCY FOR PERSONS WITH DISABILITIES, Respondent. / | Case Nos. 19-4674FL |
AGENCY FOR PERSONS WITH DISABILITIES, Petitioner, vs. OJIWE ARMS OF COMFORT NORTH, OWNED AND OPERATED BY OJIWE GENTLECARE OF S FL, LLC, Respondent. / | Case No. 19-6030FL |
RECOMMENDED ORDER
Pursuant to notice, a final hearing in this case was conducted before Administrative Law Judge Mary Li Creasy by Zoom conference on October 20 and 21, 2020.
APPEARANCES
For Petitioner in Case No. 19-4674FL and Respondent in Case No. 19-6030FL:
Frantz Olivier, Esquire Olivier & Associates, P.A.
777 Northeast 79th Street, Suite 104
Miami, Florida 33138
For Respondent in Case No. 19-4674FL and Petitioner in Case No. 19-6030FL:
Trevor S. Suter, Esquire
Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950
STATEMENT OF THE ISSUES
In Case No. 19-4674FL, the issue is whether Ojiwe Gentle Care of S FL, LLC’s (“Ojiwe”), application for licensure as a group home facility should be approved by the Agency for Persons with Disabilities (“APD”). In Case
No. 19-6030FL, the issue is whether APD is justified in revoking Ojiwe’s existing group home license.
PRELIMINARY STATEMENT
On or about June 28, 2018, Ojiwe submitted a licensure application to APD. The licensure application was for a new group home in Pompano Beach, Florida, and was the initial application for that potential home. On August 9, 2019, APD timely notified Ojiwe via letter that Ojiwe’s application for licensure was denied. Ojiwe timely filed a request for administrative hearing to contest the denial of its application. On September 5, 2019, APD referred this matter to the Division of Administrative Hearings (“DOAH”) and the matter was assigned case number 19-4674FL.
Ojiwe holds an existing APD-issued license to operate a group home in Pembroke Pines, Florida. On October 18, 2019, APD filed an administrative complaint that seeks to revoke that license. Respondent filed a timely petition that disputed material facts. On November 13, 2019, APD referred the case to DOAH and the matter was assigned Case No. 19-6030FL.
By agreement of the parties and order of this tribunal, the cases were consolidated and originally set for hearing for November 5 and 6, 2019. Counsel for Ojiwe subsequently filed six motions to continue the hearing, four of which were granted.1 The final hearing was held as scheduled for
October 20 and 21, 2020. APD timely filed a list of its proposed exhibits on October 13, 2020, and its Unilateral Pre-Hearing Statement on October 14, 2020. Ojiwe untimely filed its Unilateral Pre-Hearing Statement at 5:58 P.M. on October 19, 2020, less than 24 hours before the hearing was set to begin.
On the day before the final hearing, Ojiwe also filed a Motion to Continue Based on Newly Discovered Evidence. This motion was denied at the outset of the final hearing because the evidence was only “newly discovered” because counsel for Ojiwe failed to undertake any discovery on behalf of his client during the year-long period during which the case was pending; failed to issue any subpoenas for final hearing; failed to previously identify any witnesses or exhibits for final hearing; and failed to confer with opposing counsel regarding the motion.
During the hearing, APD presented the testimony of APD employees Cheztabnika Davis, Kimberly Carty, Kimberly Walsh, and Adella Earle. Additionally, APD presented the testimony of Lillian Vitagliano-Baum, and Department of Children and Families Investigator Darryl Watson. APD
1 See Order Denying Motion for Continuance dated October 16, 2020, for history of Ojiwe’s repeated motions to continue.
Exhibits 1 through 6, 9 through 13, and 23 were admitted into evidence. Ojiwe presented the testimony of its owner, Alonda Chambers. Due to its failure to timely disclose its exhibits, none of Ojiwe’s exhibits were admitted.
2 Arguments in Ojiwe’s Proposed Recommended Order regarding “due process” were considered and rejected.
Ojiwe argues that it was error on the part of the tribunal not to swear in Ms. Chambers and that somehow this error precludes her testimony from being considered. A review of the Transcript shows that in fact, Ms. Chambers was not sworn in. It should be noted that her testimony came after Ms. Chambers unexpectedly requested that the final hearing not go forward because she just learned her counsel had done no preparation of the case during the preceding year during its pendency. Citing her counsel’s “negligence and failure to comply with the rules of evidence,” she stated, “I am unable to proceed as I am at a loss of competent counsel.” See Tr. p. 354, lines 3-12. A ten-minute recess was permitted to allow Ms.
Chambers the opportunity to decide whether to proceed with or without counsel or to withdraw from the proceeding. After the recess, Ms. Chambers elected to move forward with counsel. Her attorney started his questioning of her without the oath being administered and no one called this oversight to the attention of the undersigned. However, it was assumed that Ms. Chambers, who previously sat through the rest of the witness testimony for the final hearing, understood the oath and that she testified truthfully to the best of her ability. Accordingly, there was no harm to Ms. Chambers’ or Ojiwe’s due process rights.
Ojiwe also argues that its due process rights were violated when the undersigned refused to grant another continuance on October 16, 19, and the day off the final hearing. Counsel’s primary argument is that despite this case being set for final hearing for over a year, he was not “ready to litigate these two cases.” As explained multiple times to Ojiwe’s counsel, his complete and utter failure to take any steps whatsoever to get this case ready for hearing does not constitute “good cause” for a continuance. While counsel’s actions likely created extreme prejudice to his client, it certainly was not a violation of due process by this tribunal. Ojiwe did not have witnesses present or exhibits admitted because counsel did not subpoena witnesses or documents, nor timely identify them to opposing counsel.
Ojiwe’s argument, that no prejudice would result if it was granted these last-minute continuances, is also misplaced. Unlike Ojiwe, APD prepared its case, secured the availability of witnesses, and was moving forward to protect the interests of the residents of Ojiwe who were still living in a facility that allegedly failed to properly administer medications or document medical records. An ongoing delay in these proceedings could have prejudiced APD’s case and have a significant detrimental effect on those vulnerable residents.
Ojiwe, for the first time in its Proposed Recommended Order, claims that the wrong party in interest was named in the Administrative Complaint. This is in direct contradiction to its representation in its Unilateral Pre-Hearing Stipulation, filed October 19, 2020, that it
otherwise indicated, citations to the Florida Statutes refer to the version in effect at the time of the application denial and alleged violations.
FINDINGS OF FACT
The Parties
APD is the state agency that licenses foster care facilities, group home facilities, residential habilitation centers, and comprehensive transitional education programs. § 393.067, Fla. Stat. APD is charged with reviewing all applications and ensuring compliance with the requirements for licensure. Additionally, APD is charged with ensuring compliance with the statutory requirements for its licensees.
In Case No. 19-4674FL, Ojiwe is an applicant for licensure of a new group home facility. Alonda Chambers identified herself as owner, on-site manager, and licensee of this group home. Ms. Chambers submitted the initial application for licensure, then submitted an amended application sometime later.
With respect to new applications, the applicant submits all required documentation to APD. APD reviews the documentation, then visits the potential home for inspection. The procedure is similar for existing homes seeking re-licensure.
Ojiwe’s application for licensure was not approved by the agency because Ms. Chambers was identified by the Department of Children and Families (“DCF”) as the person responsible for the abuse, neglect, or exploitation of a vulnerable adult.
admitted to the facts in paragraphs 1 through 6 of the Administrative Complaint. Paragraphs 2 and 3 set forth the address of the group home licensee and states, “[a]ccording to the Florida Division of Corporations, Ojiwe Gentlecare of S FL, LLC is a registered and active Florida limited liability corporation. Alonda Bivens (also known as Alonda Chambers) is identified as owner, manager, and registered agent of Ojiwe Gentlecare of S FL, LLC.” Given this stipulation, no further proof of ownership needed to be presented at the final hearing by APD.
Case No. 19-4674FL and Count I of Case No. 19-6030FL
Count I of Case No. 19-6030FL and the entirety of Case No. 19-4674FL involve allegations relating to a DCF investigation. Darryl Watson has been an investigator with DCF for 20 years and has been a DCF employee for
30 years. On or about October 31, 2018, DCF received a report alleging medical neglect against Ojiwe’s existing licensed group home. It was alleged that resident A.V. was prescribed Abilify and the medication was abruptly discontinued causing A.V.’s condition to deteriorate.
Investigator Watson was assigned the case and interviewed the witnesses, including: Ms. Chambers; resident A.V.’s mother, Ms. Vitagliano- Baum; individuals at the pharmacy; and others.
According to Ms. Vitagliano-Baum, A.V. suffers from a variety of physical and psychological conditions including dystonia (a neuro-muscular condition that causes muscle spasms), autism, cognitive deficits, anxiety, and depression. As a result, A.V. has lived in a group home setting since 2011 and requires maximum supervision for his medication regimen in order to function on a daily basis. Abilify was prescribed for A.V. approximately
ten years ago.
A.V. moved to Ojiwe in 2015. Ojiwe was responsible for supervising the administration of A.V.’s medications and properly documenting his care, including medications administered. It was Ms. Chambers’ responsibility to ensure that Ojiwe’s residents received the proper medications, and that all prescriptions were filled and current.
Ms. Vitagliano-Baum often transported her son to physician visits. When she did, Ojiwe provided her with A.V.’s medication administration record and a medical provider form for the physician to fill out. A.V.’s records indicated that A.V. was consistently given his Abilify.
In or about July, August, and September of 2018, Ms. Vitagliano- Baum discovered that A.V. had uncharacteristically been absent from his job at Publix. Also, during this time, Ms. Vitagliano-Baum observed that A.V.
was exhausted, anxious, and depressed. Accordingly, Ms. Vitagliano-Baum contacted A.V.’s doctors to determine the cause of A.V.’s decline. A.V. was subjected to blood work and a variety of tests to determine the cause of his failing health.
One of these tests required an early morning office visit, so
Ms. Vitagliano-Baum chose to have A.V. stay overnight at her home on September 23, 2018. When Ms. Vitagliano-Baum occasionally kept A.V. overnight in her home, Ojiwe provided her the medications he needed for the period of his anticipated stay away from the group home. On or about September 23, 2018, Ms. Vitagliano-Baum realized she was not given A.V.’s Abilify. She immediately contacted Ms. Chambers and discovered the next day that A.V. had not been receiving his Abilify for 30 days.
When A.V.’s Abilify prescription was due for a refill August 23, 2018, Ojiwe notified the pharmacy. However, the pharmacy contacted a physician
A.V. had not seem for three years for authorization. That physician understandably declined to order the refill. Unfortunately, the failure to obtain the refill was not noted by Ojiwe and resulted in A.V. stopping the medication “cold turkey” which is not recommended for a mood stabilizing medication like Abilify.
After Investigator Watson interviewed the witnesses and collected documents, he provided the information to a DCF nurse for review. Investigator Watson then reviewed all evidence he collected and made the final determination to verify Ms. Chambers committed medical neglect.
Ojiwe disputes the DCF finding and blames the pharmacy for the error. However, the issue with the pharmacy is best summarized as stated in the DCF report:
It looks as though the pharmacy made the error here and unfortunately physicians and pharmacies make errors often that’s why there are hospitals, homes, and nurses who are patient advocates who are supposed to pick up on these sorts of things. In
fact, one of the most important things a nurse can do in his or her career is preventing medication errors for their patient’s [sic]. The ideology is simple, the buck stops with the nurse, or in this case the facility, facility owner, and/or the nurses….
Count II of Case No. 19-6030FL
Count II of Case No. 19-6030FL alleges that APD staff observed medication errors at Ojiwe and notified Ms. Chambers of the errors. Per administrative rule, Ojiwe is required then to provide APD with evidence of staff retraining and ongoing competency. Fla. Admin. Code
R. 65G-2.009(12)(a).
Adella Earle is employed by APD as a medical case manager and is a licensed registered nurse. As medical case manager, Ms. Earle serves as a nurse consultant for APD and provides oversight with respect to the care of APD clients and provides technical assistance to group homes.
On or about September 24, 2018, APD received a complaint from
Ms. Vitagliano-Baum regarding A.V. and A.V.’s mental and physical decline. The complaint prompted Ms. Earle to visit the Ojiwe group home to review the facility records and check on the welfare of the other residents of the home. Ms. Earle’s September 25, 2018, visit revealed multiple medication errors in Ojiwe’s records. Specifically, Ms. Earle found that the facility had expired medications and errors in documentation.
Based on Ms. Earle’s observations, on or about October 24, 2018, a Notice of Non-Compliance was issued to Ojiwe for medication errors observed on September 25, 2018. The Notice of Non-Compliance required Ojiwe staff to retake the medication administration class and receive validation on administration of medications. Additionally, Ms. Chambers was verbally informed of the medication errors on September 25, 2018, and instructed that she and Ojiwe staff would need to retake the medication administration class and receive validation on administering medications. Ms. Chambers
submitted the required Corrective Action Plan to APD on November 5, 2018. Ms. Chambers submitted evidence that she herself completed the required trainings, but admitted other staff were not retrained.
Count III of Case No. 19-6030FL
When there is evidence of medication errors, ongoing staff retraining and competency-based verification of skills shall be provided to correct staff practices and prevent future occurrences. Fla. Admin. Code
R. 65G-2.009(12)(a). Count III of Case No. 19-6030FL alleges Ojiwe failed to comply with this rule.
In February 2019, Ms. Earle reviewed medical records for residents at Ojiwe, then later that same month, visited the group home. At the time, Ms. Chambers was not present at the group home. There were two staff present in the group home, but neither was trained and validated on medication administration.
Despite Ojiwe’s Corrective Action Plan submitted to APD in November 2018, Ms. Earle discovered numerous problems with Ojiwe’s record keeping. For example, the consumer’s name and address was not recorded on a physician’s appointment sheet. It is obviously important to have the consumer’s name on the sheet to identify for whom the sheet and recommendations therein are for. Other issues included expired medications and the medical records were in a general state of disorganization. Ms. Earle also noted that a suppository was prescribed for a consumer but was not written on the medication administration record for that patient.
The observed errors impacted the health and safety of the residents because without proper records there is no assurance that they are receiving the treatments that are ordered. Indeed, it is undisputed that A.V. did not receive the proper medications. Medication errors can be one of the most life- threatening issues that an APD client can face. Ojiwe presented no evidence disputing the allegations in Count III.
Count IV of Case No. 19-6030FL
Count IV alleges that Ojiwe failed to comply with the requirements with respect to responding to Notices of Non-Compliance, that the violation was willful, and was a repeat violation that could have resulted in serious injury. Fla. Admin. Code R. 65G-2.0041(2).
APD issues a Notice of Non-Compliance that it calls a Regional Operations Manager (“ROM”) Letter in response to repeat or class one violations. ROM letters are sometimes issued in lieu of filing an administrative complaint in order to give the licensee opportunity to correct the deficiencies.
On April 17, 2019, APD issued a ROM letter to Ojiwe. The particular violations are outlined in the letter, but generally, the letter was issued because of non-compliance with corrective action plans, numerous medication errors, and the DCF verified finding against Ms. Chambers. Ojiwe had
ten days after receipt of the letter to submit a corrective action plan. Although APD outlined the specific requirements of the corrective action plan to be submitted, Ms. Chambers and Ojiwe failed to comply.
Based on the repeated medication documentation errors, unkept records, and APD’s repeated and unsuccessful attempts to assist Ms. Chambers in addressing this issue, APD filed an administrative complaint to revoke Ojiwe’s license.
Count V of Case No. 19-6030FL
Count V alleges that Ojiwe failed to comply with the background screening requirements established in section 393.0655, Florida Statutes, and chapter 435, Florida Statutes.
The Care Provider Background Screening Clearinghouse, or “clearinghouse” for short, is a database that contains criminal history information for all care providers that are required to have criminal history checks. § 435.12(1), Fla. Stat.
All APD providers, including volunteers, who provide care or services, who have access to a client’s living areas, or who have access to a client’s funds or personal property are required to have background screening.
§ 393.0655(1), Fla. Stat. Employers of persons who are required to have background screening must maintain the employment status of all employees in the clearinghouse. § 435.12(2)(c), Fla. Stat.
Shortly before 9:00 A.M. on April 28, 2019, Tameika Anderson arrived at Ojiwe and began administering medications to the residents. A review of the Care Provider Background Screening Clearinghouse indicated that
Ms. Anderson was not an employee of Ojiwe. As such, Ojiwe failed to comply with the background screening requirements established in section 393.0655, and chapter 435.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of and parties to this proceeding. §§ 120.569, 120.57(1), Fla. Stat.
In Case No. 19-4674FL, the license application case, Ojiwe, as the party asserting the affirmative of the issue in this proceeding, has the burden of proof. Balino v. Dep’t. of HRS, 348 So. 2d 349 (Fla. 1st DCA 1977); State Dep’t. of Agric. and Consumer Servs. v. Strickland, 262 So. 2d 893 (Fla. 1st DCA 1972). The level of proof is a preponderance of the evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). Thus, Ojiwe must prove by a preponderance of the evidence that its application for licensure should be approved.
Case No. 19-6030FL is a license revocation case. License revocation cases are penal in nature. As such, APD is required to prove by clear and convincing evidence that Ojiwe’s license should be revoked. See Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996).
Case No. 19-4674FL and Count I of Case No. 19-6030FL
Section 393.0673(2)(b), provides the agency may deny an application for licensure submitted pursuant to section 393.067 if DCF has verified that the applicant is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult. Similarly, section 393.0673(1)(b), provides the agency may deny an application for licensure submitted pursuant to section 393.067 if DCF has verified that the applicant is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult.
There is no dispute that Ms. Chambers, as the owner and operator of the group home where A.V. lived, was responsible for medication management and documentation. Although the failure to refill the Abilify was the fault of the pharmacy, Ms. Chambers failed to notice the error;
documented that A.V. was receiving his medication when he was not; and her carelessness resulted in his needless suffering, negative repercussions at his job, and subjection to needless medical testing.
APD is justified in relying on DCF’s verified finding that Ms. Chambers was responsible for medical neglect with respect to A.V., and it appropriately denied the application for a new group home and initiated revocation of the license for the existing home.
Counts II and III of Case No. 19-6030FL
Counts II and III allege that APD staff observed medication errors at Ojiwe and notified Ms. Chambers of the errors. Per administrative rule, Ojiwe was required to then provide APD with evidence of ongoing staff retraining and competency. Fla. Admin. Code R. 65G-2.009(12)(a). Ms. Chambers submitted evidence that she herself completed the required trainings, but, to date, Ms. Chambers has not submitted proof that the other staff were also trained. Additionally, Ms. Chambers admitted that she was the only employee who was retrained.
When there is evidence of medication errors, staff retraining and competency-based verification of skills shall be completed to correct staff practices and prevent future errors. Fla. Admin. Code R. 65G-2.009(12)(a) (emphasis added). APD may revoke a license if the licensee has failed to comply with chapter 393 or the applicable rules. § 393.0673(1)(a)3., Fla. Stat.
APD observed numerous and ongoing medication errors at Ojiwe. Ojiwe failed to retrain staff and complete competency-based verification of those skills. As such, APD is justified in revoking Ojiwe’s license.
Count IV of Case No. 19-6030FL
Ojiwe failed to comply with the requirements with respect to responding to Notices of Non-Compliance and the violation was willful, a repeat violation that could have resulted in serious injury. Fla. Admin. Code R. 65G-2.0041(2).
On April 17, 2019, APD issued a Notice of Non-Compliance (ROM Letter) to Ojiwe because of non-compliance with corrective action plans, numerous medication errors, and the DCF verified finding against Ms. Chambers. Ojiwe had ten days after receipt of the letter to submit a corrective action plan. Although APD outlined the specific requirements of the corrective action plan to be submitted, Ms. Chambers and Ojiwe failed to comply. Based on Ojiwe’s numerous and continual issues with medication errors and records and Ojiwe’s lack of response to APD’s Notices of Non- Compliance or addressing the issues therein, APD is justified in revoking Ojiwe’s license.
Count V of Case No. 19-6030FL
Shortly before 9:00 A.M. on April 28, 2019, Tameika Anderson arrived at Ojiwe and began administering medications to the residents. A review of the Care Provider Background Screening Clearinghouse indicated that Ms. Anderson was not an employee of Ojiwe. As such, Ojiwe failed to comply with the background screening requirements established in section 393.0655 and chapter 435.
Conclusion
Considering the applicable statutory provisions, the documented violations, and Ojiwe’s failure to take remedial action, APD is justified in revoking Ojiwe’s group home license and not approving Ojiwe’s new licensure application.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying a new group home license and revoking Ojiwe’s existing licensure.
DONE AND ENTERED this 30th day of December, 2020, in Tallahassee, Leon County, Florida.
S
MARY LI CREASY
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 December, 2020.
COPIES FURNISHED:
Frantz Olivier, Esquire Olivier & Associates, P.A.
777 Northeast 79th Street, Suite 104
Miami, Florida 33138 (eServed)
Trevor S. Suter, Esquire
Agency for Persons With Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950 (eServed)
Danielle Thompson
Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309
Tallahassee, Florida 32399-0950 (eServed)
Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950 (eServed)
Barbara Palmer, Director
Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380
Tallahassee, Florida 32399-0950 (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 |
|---|---|---|
| Mar. 15, 2021 | Agency Final Order | |
| Mar. 15, 2021 | Agency Final Order | |
| Dec. 30, 2020 | Recommended Order | APD demonstrated by clear and convincing evidence that Ojiwe committed the violations alleged in the Administrative Complaint, including a finding of medical neglect. Recommend denial of new application and license revocation of group home. |
