Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part IE, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent has voluntarily surrendered its assisted living facility license effective on the date of the entry of the Final Order without any further action by the Respondent. 3. The Respondent is responsible for any refunds that may be due to any clients. 4. The Respondent shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Respondent is advised of Section 408.810, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 1 Filed January 6, 2014 1:24 PM Division of Administrative Hearings 5. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. 6. The Respondent shall pay the Agency $3,000.00 within twelve (12) months of the execution of the Final Order. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 7. In addition, an administrative fine of $18,500.00 is imposed against the Respondent, but is STAYED unless any of the controlling interests of Kanlake Corporation, Inc. applies for a new assisted living facility license, at which time the $18,500.00 fine will become due and owing. This fine and settlement shall have no bearing on any other facility that may be owned or operated by the principles or the controlling interests of Kanlake Corporation, Inc., at the time of the entry of the Final Order, including but not limited to Seminole Acres Kanlake II. 8. Adequate staffing shall be maintained at Seminole Acres Kanlake II; however, this requirement does not represent a finding or an agreement that Seminole Acres Kanlake II has not or does not maintain adequate staffing as required by Florida law. Bort ORDERED at Tallahassee, Florida, on this_ day of Hanus 0K, Elizabeth Dudek, Secretary Agency ealth Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct. y of this Final Order was served on the below-named Baas ot persons by the method designated on this & KB SS —— ray 9s 201% we 7 ll Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Shaddrick Haston, Unit Manager Medicaid Accounts Receivable Assisted Living Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Arlene Mayo-Davis, Field Office Manager Medicaid Contract Management Areas 9-1] Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Jessica E. Varn Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lourdes A Naranjo, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Richard Joseph Saliba Presiding Officer Agency for Health Care Administration (Electronic Mail) L_ Sherry Schwartz, Esquire Cole Scott and Kissane West Palm Beach, Florida 33401 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- 17645 Palm Beach Lakes Blvd., Second Floor (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Conclusions Having reviewed the Amended Administrative Complaint, the Amended Notice of Intent to Deny Renewal License, the Administrative Complaint, the Agency for Health Care Administration finds ! The Final Order adopts a Settlement Agreement that has applies to parties other than the named Respondent. 2 The Final Order correctly reflects the applicant as the petitioner in the case style for this licensure action. Filed February 18, 2014 10:38 AM Division of Administrative Hearings and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Amended Notice of Intent to Deny Renewal License, Administrative Complaint and Election of Rights forms to Brandia Presha d/b/a Personal Care I]. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. The Settlement Agreement also includes the assisted living facility known as Personal Care, also owned by Brandia Presha. The two assisted living facilities will be referred to as “the Provider.” In addition, the Settlement Agreement includes Tamik Presha. 3. The parties and Tamika Presha have entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Provider’s assisted living facility licenses to operate Personal Care II, license number 8730, and Personal Care [“I”], license number 4829, are VOLUNTARILY SURRENDERED effective December 14, 2014. The Provider may consent to a Change of Ownership (“CHOW”) application with an unrelated party for either or both of the facilities with an effective date of, or prior to, December 14, 2014. Should there not be a CHOW with an effective date of, or prior to, December 14, 2014, the Provider is responsible for the safe and orderly discharge of the facility residents. 3. The Provider and Tamika Presha shall not apply for any type of license issued by the Agency or obtain any interest in any private entity which holds a license issued by the Agency for a period of 5 years of the date of this Final Order. 4. An administrative fine of $2,000.00 is imposed but STAYED against the Provider. The Agency shall not attempt to collect the fine against the Provider absent a breach of this Settlement Agreement. Should either Brandia Presha or Tamika Presha seek any type of license issued by the Agency within five years of the date of this Final Order, the $2,000.00 shall be immediately due and payable and full payment of the fine shall be a condition precedent for any type of Agency license. If payment is to be made, a check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. Should there not be a CHOW, the Provider is responsible for any refunds that may be due to any clients. 6. Should there not be a CHOW, the Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. Should there not be a CHOW, the Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this_/7 day of Alauacey , 2014. Elizabeth Duddk, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc y of this Final Order was served on the below-named persons by the method designated on this t? ay of feLyruc cys , 2014. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Suzanne Suarez Hurley, Esq. Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Corinne Porcher, Esquire Smith & Associates 3301 Thomasville Road, Suite 201 Tallahassee, FL. 32308 (U.S. Mail) Lynne Quimby-Pennock Administrative Law Judge Brandia Presha, Owner/Administrator Personal Care & Personal Care II Division of Administrative Hearings 120 8" Avenue West (Electronic Mail) Bradenton, FL 34208 (U.S. Mail) J. D. Parrish Tamika Presha Administrative Law Judge 120 8"" Avenue West Division of Administrative Hearings Bradenton, FL 34208 (Electronic Mail) (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issues in this matter are whether Respondent, Willine Gracia, operated an assisted living facility without the required license, thereby engaging in unlicensed activity; and, if so, the appropriate penalty.
Findings Of Fact The Agency is the state agency responsible for the licensure of assisted living facilities (“ALFs”) in the State of Florida. See Ch. 429, Part I; and Ch. 408, Part II, Fla. Stat. As part of its responsibilities, the Agency serves as the enforcement arm regarding the licensed (and unlicensed) activity and operation of ALFs. See gen., Chs. 408 and 429, Fla. Stat.; Fla. Admin. Code R. 58A-5 and 59A-35. Respondent owns a house located at 4502 Conley Street, Orlando, Florida. In January 2016, the Agency received a complaint alleging the unlicensed operation of an ALF at the 4502 Conley Street location. The Agency maintains records of ALF licenses and license applications pursuant to chapter 408 and rule 59A-35. Keisha Woods currently serves as an Operations and Management Consultant in the Assisted Living Unit for the Agency. Ms. Woods testified that she searched the Agency’s databases on October 26, 2016, and November 9, 2016, and found no record that Respondent was currently licensed as an ALF or had ever applied to be licensed as an ALF. Tresa Johnston is a Senior Human Services Program Specialist, also known as a “surveyor,” for the Agency. Ms. Johnston investigated the complaint on behalf of the Agency. On January 14, 2016, Ms. Johnston visited Respondent’s house located at 4502 Conley Street, Orlando, Florida. Ms. Johnston arrived around 8:30 a.m. Respondent was not present. Ms. Johnston knocked at the front door. An individual who Ms. Johnston later concluded was residing in the house, greeted her at the door and allowed her entry. Upon entering the house, Ms. Johnston met three individuals who she determined were living in the residence. She observed that the house contained three bedrooms and one bathroom. The residents informed Ms. Johnston that they stayed in two of the three bedrooms. Ms. Johnston also found personal effects in the bedrooms and bathroom that belonged to the residents. In the house, Ms. Johnston observed a combined living room/dining room area in which she found a piano, a small refrigerator, and a microwave. In the refrigerator, Ms. Johnston discovered several frozen meals and drinks. In the bathroom, Ms. Johnston did not find any toilet paper. She also noticed that the bathroom was lit only by a nightlight. On the doorway to the kitchen, Ms. Johnston encountered a sign that read, “Do not enter kitchen at any time.” The residents informed Ms. Johnston that Respondent forbad them from entering the kitchen. Disregarding the sign and entering the kitchen, Ms. Johnston saw that the refrigerator was chained and locked. She found canned foods on the counter and packaged food in the pantry. Ms. Johnston also discovered a dead rat on the floor. Ms. Johnston found the house was extremely cold. All three residents were wearing coats. The residents advised Ms. Johnston that Respondent did not allow them to manage the temperature. Respondent arrived at the house around 9:10 a.m. Respondent was carrying a plastic bag containing medication for all three residents. Upon entering the house, Ms. Johnston testified that she saw Respondent take several prescription bottles out of the bag, pour a dosage of medication into the caps of each bottle, and instruct the residents to ingest the medication. The residents then placed some medications in a daily pill box for a one-day supply. Respondent observed that one medication bottle was empty. She shook it and advised one of the residents, “I owe you one of these. I have to refill it.” Respondent, after giving the residents their medication, put the medication bottles back into the plastic bag. Ms. Johnston also heard Respondent declare that she would have to return in the afternoon to give a resident her medication. Thereafter, Ms. Johnston interviewed Respondent. During this interview, Respondent informed Ms. Johnston that she: does not live at 4502 Conley Street; is not related to any of the three residents; provides housing, meals, and manages medications for all three residents; cooks two meals a day for the residents. (The residents are supposed to eat a frozen meal for their third meal); does not allow the residents into the kitchen; keeps the residents’ medications in a locked cabinet in her home because two of the residents cannot take care of their own medications without her assistance; and generally arrives at the 4502 Conley Street location between 9:00 to 9:30 a.m. each day. Respondent also called the residents her “clients.” Respondent explained to Ms. Johnston that her clients were referred to her by a local hospital. Respondent explained to Ms. Johnston that she is paid to lodge two of the residents through a payee. She was in the process of obtaining a payee for the third resident. On January 22, 2016, Ms. Johnston contacted Anthony Alexander, who is a Representative Payee for the Social Security Administration. At the final hearing, Mr. Alexander explained that the Social Security Administration designated him a payee for certain individuals who have been determined to be unable to manage paying their own personal expenses with their Social Security benefits. Mr. Alexander testified that in his capacity as Representative Payee, he made rental payments to Respondent for two of the residents Ms. Johnston found staying at Respondent’s house. Mr. Alexander recounted that he made the rental payments through direct deposit to Respondent’s bank account. Mr. Alexander further stated that he mailed weekly stipend checks for the two residents to the 4502 Conley Street address. Mr. Alexander represented that his records show that the stipend checks were cashed. In addition, Mr. Alexander testified that, as of the date of the final hearing, he is still paying rent to Respondent for one of the residents. He is also still mailing a weekly stipend check for that individual to 4502 Conley Street, Orlando, Florida. Based on her personal observations and the information provided directly to her from Respondent and the three residents of 4502 Conley Street, Ms. Johnston concluded that Respondent was engaged in unlicensed activity by operating an ALF without a license. Therefore, on January 14, 2016, Ms. Johnston issued Respondent a Notice of Unlicensed Activity (the “Notice”). The Notice instructed Respondent to immediately cease operating an ALF without proper licensure. On February 1, 2016, Ms. Johnston revisited 4502 Conley Street. Ms. Johnston again asked a resident permission to enter the house. This time she was denied entry. However, she saw that two of the three residents she met during her initial visit on January 14, 2016, were still in the house. Based on her observations, Ms. Johnston determined that Respondent was continuing to engage in unlicensed activity after receiving the Notice on January 14, 2016. Respondent was not present at the final hearing. However, in her Election of Rights she presented to the Agency, Respondent wrote: I Willine Gracia have never owned or operated a non license facility. . . . I’ve never promoted myself as such. However, I did have renters in my home and at times some of them came through Lakeside Behavioral. Each of these ladies were independent and did not require supervision and could live on their own without a caregiver. . . . I only offered meals to those ladies who wanted that. I did not provide anything more. . . . I do live at 4502 Conley Street and this is my personal home, which I can prove not a ALF or business. Based on the competent substantial evidence in the record, the facts demonstrate that Respondent was operating an ALF as that term is defined in section 429.02(5). The evidence and testimony also establish that Respondent was engaging in this activity, without the proper license, from January 14, 2016, through February 1, 2016.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency issue a final order finding that Respondent Willine Gracia operated an ALF without a license in violation of chapter 429. It is further recommended that the Agency impose an administrative fine in the amount of $18,000 against Respondent pursuant to section 408.812. DONE AND ENTERED this 9th day of December, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 9th day of December, 2016.
The Issue The issue in this case is whether the Agency for Health Care Administration should deny Petitioner's application for renewal of its standard assisted living facility license with a limited mental health component.
Findings Of Fact The Agency is responsible for licensing and regulating assisted living facilities in Florida pursuant to Part III, Chapter 400, Florida Statutes (2001). Pursuant to that responsibility, the Agency is authorized to conduct surveys and follow-up surveys, to make visits and inspections of assisted living facilities, and to investigate complaints. Oakland Manor is an assisted living facility located at 2812 North Nebraska Avenue, in Tampa, Florida, licensed and regulated pursuant to Part III, Chapter 400, Florida Statutes (2001), and Rule Chapter 58A-5, Florida Administrative Code. The facility's license has a limited mental health component. Rory and Lisa McCarthy have owned and operated Oakland Manor since about December 1999. Mrs. McCarthy is the administrator of the facility. Between the dates of December 14, 2000 and September 18, 2001, the Agency conducted three appraisal visits, a moratorium monitoring visit, a complaint investigation, and a biennial license renewal survey of the facility. The Agency noted the results of these inspections on a form referred to as Agency Form 3020-0001 ("Form 3020"). The Form 3020 is the document used to charge assisted living facilities with deficiencies that violate applicable law and rules. The Form 3020 identifies each alleged deficiency by reference to a tag number. Each tag of the Form 3020 includes a narrative description of the allegations against the facility and cites the relevant rule or law violated by the alleged deficiency. In order to protect the privacy of the residents, the Form 3020 and this recommended order refer to the subject resident by a number rather than by a name. There are 24 tags at issue in the proceeding, some having been cited as repeat or uncorrected deficiencies. An uncorrected deficiency is one that was previously cited and has not been corrected by the time designated or by the time of the Agency's follow-up visit. A repeat deficiency is one that the facility has been cited for and that has been corrected, but after the correction, the deficiency occurs again. Section 400.419, Florida Statutes, requires that the Agency assign a class rating to the deficiencies alleged in its Form 3020. The classification rating assigned to a deficiency is based on the nature of the violation and the gravity of its probable effect on facility residents. On December 14, 2000, the Agency conducted an appraisal visit of Oakland Manor. As a result of this visit, the Agency cited the facility with four Class III deficiencies, including a Tag A519 deficiency for failure to maintain minimum staffing to meet the residents’ needs, a Tag A1001 for failure to provide a safe environment, Tag A1024 for failure to provide beds for two residents, and Tag A1033 for failure to provide each bathroom with a door in good working order to ensure privacy for residents. The Agency conducted a second appraisal visit of Oakland Manor on March 12, 2001, and cited the facility for seven deficiencies, including three uncorrected deficiencies from the December 14, 2000, visit. According to the Form 3020 for the March 12, 2001, appraisal visit, the uncorrected deficiencies were cited as Tag A519, for failure to provide minimum staffing; Tag A1001, failure to provide a safe environment; and Tag A1024, for failure to provide clean, comfortable mattresses. In addition to the alleged uncorrected deficiencies, the Agency cited the facility for four new deficiencies under Tag A210, Tag A212, Tag A523, and Tag A1004. Tags A519, A523, and A1001 were rated as Class II deficiencies. The other tags cited were rated as Class III deficiencies. Because the Agency found new violations of Tags A519, A1001, and A1024, and deficiencies under those same tag numbers were identified in December 2000, the Agency deemed those violations or deficiencies to be uncorrected deficiencies. On March 13, 2001, the day after the second appraisal visit, the Agency entered an Order of Immediate Moratorium ("Order"). The Order was based on the alleged violations cited from the March 2001 appraisal visit and stated that the conditions at the facility presented a significant threat to the health, safety or welfare of the residents. Under the Order, Oakland Manor was prohibited from admitting any residents. On June 13, 2001, the Agency conducted a complaint investigation based on a complaint that the Agency had received. The Form 3020 summarizing the Agency's findings during the June 13, 2001, investigation did not cite Oakland Manor for any continuing violations, but alleged that there was a violation of Tag A1114, relating to staff records standards. The A1114 deficiency was assigned a Class II violation. The Agency conducted a biennial license and limited mental health renewal survey on June 28, 2001. This survey is required for continued licensure. As a result of the biennial survey, the Agency cited Oakland Manor with the following ten deficiencies, none of which had been previously cited: Tags L200, L201, L202, L203, L400, A525, A634, A1005, A1101, and A1103. All of these tags were assigned Class III ratings. On September 18, 2001, the Agency conducted an appraisal/monitoring visit. As a result of this visit, the Agency cited Oakland Manor with two violations, Tag A519, related to staffing standards, and Tag A1004, related to physical plant standards, both of which were assigned Class III ratings. Because Oakland Manor was cited for deficiencies under Tag 519 during the March 12, 2001, visit, the Agency noted that the deficiency of Tag A519 was a repeat violation. The Form 3020 for each survey or visit indicated when each alleged violation should be corrected. In some cases, a specific date was given. In other instances, the correction was to be implemented "immediately." DECEMBER 14, 2000, APPRAISAL TAG A519 Tag A519 requires a facility to maintain the minimum staffing hours set forth in Rule 58A-5.019(4), Florida Administrative Code. Because Oakland Manor had a resident census of 26 in November 2000 and through the first two weeks of December 2000, the facility was required to have minimum staff hours of 294 per week. Based on a review of the facility's staffing schedule for the time in question, the Agency surveyor properly concluded that the facility did not maintain the required minimum staff hours of 294 in November 2000 and the first two weeks of December 2000. As a result of this finding, the Agency properly cited Oakland Manor with a Tag A519, Class III deficiency. DECEMBER 14, 2000, APPRAISAL: TAG A1001 The second violation for which Oakland Manor was cited was a Tag A1001 deficiency, which requires that assisted living facilities "be located, designed, equipped, and maintained to promote a residential, non-medical environment, and provide for the safe care and supervision of all residents." See Rule 58A- 5.023(1)(a), Florida Administrative Code. The violation was rated as a Class III deficiency. The allegation that Oakland Manor failed to meet the requirements of Tag A1001 is based on the following observations noted on the Form 3020: there were electrical wires and light fixtures hanging loose from the ceiling in the hallway on the first floor; the residents' room walls were dirty, the rooms had a foul odor and the smell of urine; the floors of the facility were dirty; residents were observed smoking in their beds; the toilet tank lid was missing; and discharge water from the washing machine in the breezeway was running over the walkway in the patio area. At the time of the survey, one resident's room had dirty walls and also had a foul odor. The floors of the facility were dirty and had food particles on them, and the facility had an "unpleasant odor." Also, two residents were observed smoking in their bedrooms, despite the facility's no smoking policy. Contrary to the observation noted on the Form 3020, there were no light fixtures hanging loose from the ceiling, nor had that situation ever existed. At hearing, there was no evidence presented by the Agency that there were light fixtures hanging loosely from the ceiling. The electrical wires, referred to in the Form 3020, were slightly visible and coming from a 9-foot ceiling. However, there were wire nuts on the wires and, thus, the wires were not a danger to the residents. There was water coming from the washing machine as noted by the Agency surveyor. Mr. McCarthy does not deny that allegation, but the water coming from the washing machine was "feed" water going into the machine and not "discharge" water as noted in the Form 3020. This problem was resolved the following day when Mr. McCarthy purchased and had a new washing machine installed. The surveyor observed one toilet that did not have a toilet tank lid. The owners do not dispute this, but the lid was not "missing" as noted on the Form 3020, but had likely been removed by one of the residents. When a resident removes the toilet tank lid, staff members routinely replace the lid. The surveyor was unaware of any regulation that requires the facility to secure the lids to prevent the residents from removing them. DECEMBER 14, 2000, APPRAISAL: TAG A1024 The third alleged violation for which the facility was cited was Tag A1024, which refers to the physical plant standard set forth in Rule 58A-5.023(4)(e), Florida Administrative Code. That standard requires that each resident bedroom or sleeping area, where furnishings are supplied by the facility, shall at a minimum, be furnished with, among other things, a clean comfortable bed with a mattress. It is alleged that this standard was not met as evidenced by the observation that the mattress in Room No. 10 was torn, and the filler appeared to be coming out of the mattress. The undisputed testimony was that the torn mattress was not being used by any resident of the facility, but was a mattress that was not being used. The Notice of Intent to Deny mischaracterizes the surveyor's findings under Tag A1024 as "failure to provide beds for two residents." This allegation was not addressed or proven by the Agency. DECEMBER 14, 2000, APPRAISAL: TAG A1033 The fourth alleged violation, cited under Tag A1033, relates to the physical plant standard set forth in Rule 58A- 5.023(5), Florida Administrative Code. That standard requires that each bathroom have a door in working order to assure privacy and that the entry door to the bathrooms with a single toilet is required to have a lock which is operable from the inside by the resident, with no key needed. The Agency alleged that this standard was not met in that the bathroom door on the first floor was not operable because the door was missing the striker plate that keeps the door tightly closed into the frame. The Agency noted that as a result of this alleged defect, residents using that bathroom did not have privacy. Based on Mr. McCarthy's testimony, there was a door leading into the bathroom, which had a working lock. In addition, the door with the missing striker plate had a hook and eye that allowed the door to be secured from the inside. MARCH 12, 2001, APPRAISAL TAG A519 Tag A519 requires the facility to meet the minimum staffing required by Rule 58A-5.019(4), Florida Administrative Code. Based on the resident census of 25 for March 4-12, 2001, and the surveyor's review of the staff work schedule for that week, Oakland Manor was cited for a Tag A519 deficiency. According to the facility's staff work schedule, there were 208 total staff hours for that week and not the required minimum staffing hours. The Form 3020 stated that the "[l]ack of adequate staffing has resulted in a malfunctioning sewage system which poses an immediate risk to the residents, staff, and public." In making this allegation, the Agency apparently assumed that the residents caused the sewage system problems and that if there had there been adequate staffing, these problems would not have occurred. The Agency then alleged that the malfunctioning sewage system posed an immediate risk to the residents, staff, and public. However, these assumptions and allegations are not supported by any evidence. There is no evidence that the sewage system problems were caused by the residents and/or lack of staffing. Moreover, there is nothing in this record which supports the claim that the malfunctioning sewage system posed an "immediate risk" to the residents, staff, or public. Clearly, there was a Tag A519 deficiency in that the facility failed to maintain the weekly minimum staff hours required. Also, because the facility had been cited for a Tag A519 deficiency during the December 14, 2000, appraisal, the Agency properly found that the Tag A519 deficiency, cited during the March 12, 2001, appraisal was an uncorrected deficiency. However, in this instance, the violation did not "directly threaten the physical or emotional health, safety, or security of the facility residents." Accordingly, the violation is not a Class II deficiency, as alleged by the Agency, but is a Class III deficiency. MARCH 12, 2001 APPRAISAL: TAG A523 As stated on the Form 3020, Tag A523 requires that, notwithstanding the minimum staffing ratio, all facilities have enough qualified staff to provide resident supervision, and provide or arrange for resident services in accordance with resident scheduled and unscheduled service needs, resident contracts, and resident care standards. See Rule 58A- 5.019(4)(b), Florida Administrative Code. The Agency alleged that Oakland Manor failed to meet this standard. The determination that Oakland Manor failed to meet the standard required by Tag A523 was based on the surveyor's observation and interview with the facility administrator. On the day of the survey, from 9:30 a.m. to approximately 11:00 a.m., the surveyor noticed that there was a strong odor of sewage coming from the basement area and standing water on the basement floor. The surveyor learned from the administrator that the matter came to her attention that morning and that a plumber had been called and had corrected a similar problem a week earlier. Mr. McCarthy explained that the lift station malfunction and the overflow of sewage into the basement had occurred the day of the Agency inspection. After a plumber came to the facility to repair the lift station and was unable to do so, an electric company was called and came out and immediately repaired the lift station. The Form 3020 notes that when the lift station backed up the week before, the plumber found t-shirts, garbage bags, bandannas, and a stick of deodorant clogging up the lift station. From this alleged statement, the surveyor erroneously concluded that some of the residents had thrown these and possibly other items into the lift station. In view of this assumption, the surveyor alleged on the Form 3020 that: The lift station back up is occurring due to a lack of supervision of qualified staff to provide resident supervision and allowing the residents to freely access the lift station in the yard and put items in it. The size and accessibility of the lift station also poses a threat to residents due to the possibility of a fall while throwing in inappropriate items. The lift station was in the yard of the facility, but the residents do not have free access to the lift station, except the top external lid of the lift station. The residents can not remove the lid covering the lift station because the lid is made of steel and weighs over 200 pounds. Accordingly, the residents can not throw items in the lift station and, thus, there is no threat to the residents "due to the possibility of a fall while throwing" items into the lift station, as alleged by the Agency. The Agency deemed the Tag A523 violation as a Class II deficiency and required that the facility correct the deficiency immediately. The Agency failed to establish this allegation. MARCH 12, 2001, APPRAISAL: TAG A1001 The standards of Tag A1001 are stated in paragraph 20. Based on the surveyor's observations, Oakland Manor was again cited for a Tag A1001 deficiency. Tag A1001 was deemed by the Agency to be an uncorrected deficiency and designated a Class II violation. In the Form 3020, the Agency listed the following 12 alleged facts as the basis for the cited deficiency: Two large ladders were lying on the floor in the hallway, partially blocking access through the hallway. The bathtub and shower in the first floor shower room were badly stained and mildewed. In Room No. 1, the toilet was not working and there was an accumulation of feces in the toilet bowl. In Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. The wall and floors throughout the facility were dirty. In Room No. 8, there was an electric space heater in front of full length curtains. In Room No. 10, there were cigarette butts on the floor and the resident in the room was observed smoking, although smoking is not allowed in the facility. In the second residential building, the first bathroom had a dirty floor and the vinyl was very worn and there was no lid on the "toilet back." In the second residential building television room, there was a resident smoking even though there is a no smoking sign posted. There was a strong sewer odor emanating from the facility basement and the basement had standing water. The staircase to the second floor of the main building was covered with dirt and grime. The overhead light in the second floor hallway was not working and the staircase was very dark. The ladders, referred to in the Form 3020, were not lying on the floor but were leaning against a recessed part of the wall in the hallway. They were not blocking the passageway and, even with the ladders in the hallway, there was enough room for a 215-pound man to walk through the hall into the adjacent room. The reason the ladders were in the hall was that Mr. McCarthy was painting the facility. At the end of each day, when Mr. McCarthy was finished painting, he stored the ladders in an office in back of the kitchen or in a shed in the back of the facility. The surveyor reported that the bathtub and shower in the first floor shower room were badly stained and mildewed. Mrs. McCarthy testified that the shower stall is made of heavy marble and is original to the 100-year-old house and that many of the stains can not be scrubbed off. The substance the surveyor described as mildew was shampoo. The toilet in Resident Room No. 1 was described in the Form 3020 as having an accumulation of feces and not working. The toilet was stopped up, but was working and was put back into flushing order that same day, immediately upon the problem being called to her attention. The residents in that room placed female products in the toilet and caused it to stop up. However, the toilet was functioning in all respects when it was not stopped up. In Resident Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. This was not disputed. Every shift, staff is suppose to sweep, mop, and make sure that the room is cleaned out, but sometimes the residents put their laundry on the bed. The walls and floors throughout the facility were dirty as reported in the Form 3020. In an effort to keep the walls clean, they are painted every three or four months. The Agency surveyor observed a space heater in Room No. 8, which she characterized as a fire hazard. However, the heater was not plugged in and was not in use at that time. When the heater is in use, it is in the middle of the room and not near the curtain. In Room No. 10, the surveyor observed cigarette butts on the floor and the resident in the room was observed smoking, even though the facility had a no smoking policy and all residents were given copies of that policy, upon admission. In Oakland Manor’s second residential building, the surveyor observed that the floor was dirty and the vinyl was torn, and there was no lid on the toilet back. Mr. McCarthy confirmed that the vinyl was worn and did not dispute that the floor was dirty. At the time of the Agency inspection, the worn dirty vinyl was in the process of being replaced. With regard to the toilet backs, the residents remove the toilet tank lids, but they are always put back on. The Agency surveyor observed a resident smoking in the television room, even though there was a “No Smoking” sign posted in the room. At Oakland Manor, smoking in violation of the house rules is a continuing problem that the administrator and staff make efforts to correct. The Agency surveyor observed that there was standing water in the basement and a strong sewer odor coming from the basement. Other facts related to this observation are discussed in paragraphs 35 and 36. Mrs. McCarthy does not dispute this allegation, but the problem was promptly correctly. Mr. Carthy corrected the problem within 48 hours; he went into the basement and “squeegeed” all the standing water and otherwise treated the floor to dry it and deodorize it. The surveyor determined that the overhead light in the second floor hallway of the main house was not working. She reached this conclusion after she first observed the dark hallway and then tried to turn on the light and was unable to do so. There is no indication that the surveyor asked facility staff to turn on the light or inquired as to how the switch worked. The light operates by a three-way switch, and although there are two switches, only one of them turns on the light. Also, there are two lights in the stairwell so that if one light is burned out, the other one still works, but it does not appear that the inspector knew how to operate the three-way switch. No testimony was presented by the Agency regarding the allegation concerning the staircase to the second floor of the main house. Based on the Agency’s findings in the paragraph 40-d, e, and j, above, the facility was properly cited for the Tag A1001 deficiency. This was an uncorrected deficiency. MARCH 12, 2001, APPRAISAL: TAG A1004 Tag A1004 requires that all windows, doors, plumbing, and appliances in assisted living facilities be functional and in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. According to the Form 3020, Oakland Manor failed to meet this standard as evidenced by windows in the facility that were not functional and in good working order and failing to promptly repair broken glass, which "may result in injury to residents or staff." The surveyor observed the following: a large window pane in the front door was broken, the lower window pane in the dining room window was covered over with plywood, the first floor rear bathroom window was hanging off the hinge and the screen was missing; and the window pane of the outside door leading to the ramp was broken and covered with a garbage bag. The owners do not dispute that the pane in the front door was broken, but testified that the material was not glass, but Plexiglas. The door had been broken by one of the residents the day of the survey. Mr. McCarthy replaced the Plexiglas pane the same day and, four or five days later, replaced the entire front door with a solid door. As to the allegation that the lower half of the dining room window was covered with plywood, that there was not a glass pane in the lower part of the window. Rather, the plywood was placed there instead of the glass and was put in with trim molding and sealed with caulking. It appears that the window was designed that way to serve as a "fixed" window. The Agency acknowledged that window had been like that before the McCarthys purchased the facility. Moreover, the Agency had not previously indicated that this was a violation of any regulation. Although the Agency offered no suggestions to address its concern with the “fixed” window, Mr. McCarthy replaced the plywood with Plexiglas in an attempt to comply with the Agency requirements. The surveyor's observation regarding the first floor rear bathroom window was reversed. There was a screen on hinges that opened and closed and the top hinge of the screen was pulled out and hanging over a bit. However, the screen was there and the window was functional. Mrs. McCarthy does not dispute that the outside door had a broken glass pane that was covered with a garbage bag. The glass pane had been broken out earlier that day and the entire door was replaced within a day or so of the Agency's appraisal visit. The observations noted in paragraph 61 constitutes a violation of Tag A1004. MARCH 12, 2001, APPRAISAL: TAG A1024 The Tag A1024 requires that each resident room in an assisted living facility be furnished with, among other things, a clean comfortable mattress. See Rule 58A-5.023(4)(e)1., Florida Administrative Code. According to the Form 3020, the Agency alleged that Oakland Manor failed to comply with this standard in that "the facility did not provide appropriate beds for two residents." No mention is made in the Form 3020 of which residents did not have appropriate beds. The alleged Tag A1024 deficiency was based on the two reported observations of the surveyor. First, the Form 3020 notes that in Room No. 10, the surveyor observed "a medical crutch being used as a mattress support on one bed." Second, the surveyor noted her observation that in Room No. 4, there was "a ripped mattress with the filling coming out of the rips." The owners testified that the crutch was not being used to support the mattress and that bed was not being used by any of the residents. Mr. McCarthy did not know why the crutch was under the mattress, but it was not there for support because of the construction of the bed. As to the second observation, the owners do not dispute that the mattress also in Room No. 4 was ripped. However, the bed with the torn mattress was not being used by anyone and has been replaced. Finally, there were appropriate beds for all the residents because at the time of this survey, there were 26 residents and 32 beds. This testimony was not disputed by the Agency. Tag A1024 was deemed by the Agency to be an uncorrected deficiency and was designated as a Class III violation. The Agency gave the facility until March 15, 2001, to correct the deficiency. MARCH 12, 2001, APPRAISAL: TAG A210 Four additional new violations were cited as a result of the Agency's March 12, 2001, appraisal visit. These violations or deficiencies were assigned Tag A210, Tag A212, Tag A523, and Tag A1004. Tag A210 requires compliance with the standards set forth in Rule 58A-5.024, Florida Administrative Code. That rule requires that assisted living facilities maintain the records prescribed therein "in a form, place and system ordinarily employed in good business practice and accessible to the department and [A]gency staff." Rule 58A-5.024(1)(m), Florida Administrative Code, requires that the facility maintain all fire safety inspection reports issued by the local authority having jurisdiction or the State Fire Marshal within the past 2 years. In an interview, which occurred during this visit, the facility administrator advised the Agency surveyor that the fire inspection reports were not on the premises, but at the administrator's home. Based on this statement by the administrator, the Agency properly concluded that this standard was violated because the fire inspection records were maintained at the owner/administrator's home, and were not in a place accessible to Agency staff as required by the applicable rule. MARCH 12, 2001, APPRAISAL: TAG A212 The Tag A212 relates to facility records standards. According to the Form 3020, Oakland Manor failed to meet this standard in that it violated Rules 58A-5.020(3) and 58A- 5.024(1)(n), Florida Administrative Code. The former rule requires that "copies of inspection reports [relating to food hygiene] issued by the county health department for the last two years . . . be on file in the facility." The latter rule requires that all sanitation inspection reports issued by the county health department within the past two years be maintained in a form, place, and system ordinarily employed in good business practice and accessible to department or agency staff. The Form 3020 indicates and it is undisputed that the most recent copy of the sanitation inspection report was not on the premises, but at the administrator's home. MARCH 13, 2001, ORDER OF IMMEDIATE MORATORIUM On March 13, 2001, the day following the Agency’s March 12, 2001, appraisal visit to Oakland Manor, the Agency imposed a Moratorium on Admissions to the facility, which has remained in effect. JUNE 12, 2001, MORATORIUM MONITORING VISIT TAG A528 In the Notice of Denial, the Agency alleged that a Moratorium monitoring visit was made to Oakland Manor on June 12, 2001, during which the facility was cited for violating Tag A528. The Agency failed to establish this violation. JUNE 13, 2001, COMPLAINT INVESTIGATION TAG A1114 On June 13, 2001, the Agency conducted a complaint investigation of Oakland Manor. As a result of the investigation, the Agency alleged that the facility violated Tag A1114 by failing to include in an employee’s file documentation of compliance with Level 1 screening. The standards under Tag A1114 are set forth in Section 400.4275(2), Florida Statutes, and Rules 58A-5.019(3) and 58A-5.024(2)(a)3., Florida Administrative Code. Pursuant Rule 58A-5.019(3), Florida Administrative Code, a Level 1 screening is required for all employees hired after October 1, 1998, to provide personal services to residents. Also, personnel records for each staff member should include documentation of compliance with Level 1 background screening for all staff. See Subsection 400.4275(2), Florida Statutes, and Rule 58A-5.024(2)(a)3., Florida Administrative Code. Mr. and Mrs. McCarthy did not dispute this allegation. According to the Form 3020, the employee in question had been hired by the facility on or about May 15, 2001. Mrs. McCarthy told the surveyor that she had applied for the background screening about two weeks prior to the June 13, 2001, complaint investigation, but it had not yet been received. Later that day, the administrator provided the surveyor with a copy of an arrest report from the Tampa Police Department. The arrest report did not satisfy the standards required under Tag A1114. The deficiency constituted a failure to comply with the requirements of Tag A1114, and was properly designated a Class II deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG L200 Tag L200 requires assisted living facilities with a limited mental health license, such as Oakland Manor, to have a copy of each mental health resident’s community living support plan. See Subsection 400.4075(3)(a), Florida Statutes. In addition, Tag L200 requires that the mental health case manager and the mental health resident, in conjunction with the facility administrator, prepare the community living support plan within 30 days of admission to the facility or within 30 days after receiving the appropriate placement assessment. See Subsection 400.402(8), Florida Statutes, and Rule 58A.5.029(2)(c)3.a., Florida Administrative Code. According to the Form 3020, the surveyor reviewed the file of Resident 1, a limited mental health resident who was admitted to the facility on November 23, 1993, and did not find the resident’s community living support plan. The resident’s record did have the annual community living support plan, but the surveyors simply missed or inadvertently overlooked the document. There was a community living support plan in Resident 1’s file that was signed by the resident, the resident’s counselor, and the former facility administrator, and dated February 17, 1999. Attached to the community living support plan were progress notes, with the last entry dated October 14, 1999. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS L201, L202, L203, AND L400 Oakland Manor was cited for violating standards under Tags L201, L202, L203, and L400, all of which relate to community living support plans. Tag L201 requires that the community living support plan include the components enumerated in Rule 58A- 5.029(2)(c)3.a.(i)-(vi) and (viii), Florida Administrative Code. Tag L202 requires the assisted living facility to make the community living support plan available for inspection by the resident, the resident’s legal guardian, the resident’s health care surrogate, or other individuals who have a lawful reason to review the plan. See Subsection 400.4075(3)(c), Florida Statutes. Tag L203 requires that the community living support plan to be updated annually in accordance with See Rule 58A- 5.029(2)(c)3.a.(vii), Florida Administrative Code. Finally, Tag L400 requires the facility to assist the mental health resident in carrying out the activities identified in the individual’s community living support plan. See Subsection 400.4075(3)(d), Florida Statutes. The alleged deficiencies cited under Tags L201, L202, L203, and L400 were all based on the surveyor’s finding that the file of Resident 1 did not contain a community living support plan. In light of the finding in paragraph 80, that the annual community support plan was in the resident’s file, the Agency did not establish the deficiencies listed under Tags L201, L202, and L400. Oakland Manor failed to comply with the standards of Tag L203, in that the community living support plan had not been updated annually as required by the foregoing rule. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A525 Tag A525 was assigned to Oakland Manor based on the Agency's determination that for two facility employees, scheduled to work alone on the 11:00 p.m. to 7:00 a.m. shift, there was no documentation that they had received first aid training. This alleged deficiency constitutes a failure to comply with the staffing standards in Rule 58A-5.019(4)(a)4., Florida Administrative Code, which requires that at least one member who is trained in first aid and CPR be in the facility at all times. Oakland Manor was properly cited for a violation of Tag A525 which was designated a Class III deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A634 The Agency assigned a Tag A634 deficiency to Oakland Manor based on its determination that Oakland Manor failed to meet the medication standards set forth in Section 400.4256(1), Florida Statutes. That provision requires the facility to advise the resident or the resident's guardian or surrogate that the resident may receive assistance with self-administration of medication from an unlicensed person and that such assistance will not be overseen by a licensed nurse. As support for this violation, the Form 3020 noted that based on a review of three residents' files, there was no documentation that the facility had informed the residents as required by Section 400.4256, Florida Statutes. The facility does inform residents appropriately, based on documents included in the admissions package. However, the surveyors did not look anywhere except the residents’ files for that documentation. The residents also signed a letter giving their informed consent to comply with the Agency regulations, and a copy of that letter was faxed to the Agency soon after the citation. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A1005 As part of this survey, the Agency assigned a Tag A1005 deficiency, alleging that the facility failed to meet the physical plant standard required by Rule 58A-5.023, Florida Administrative Code. That rule requires that all furniture and furnishings be clean, functional, free of odors, and in good repair. This deficiency was based on a surveyor's observation of the main bathroom on the first floor of the main building. During a tour of the facility, the Agency surveyor observed human excrement on the bathroom floor, on the outside of the toilet bowl, and on the toilet seat. The surveyor also observed that an adult brief, filled with human excrement, had been thrown against the wall. After this was brought to the administrator's attention, the bathroom was cleaned immediately. However, several hours later, when the surveyor returned to the area, human excrement again had been smeared on the toilet seat. A few minutes prior to the surveyor returning to the bathroom, a resident exited the bathroom. Therefore, it is very likely that the resident who was in the bathroom soiled the toilet seat after it had been cleaned. The facility staff has a regular cleaning schedule and, pursuant to that schedule, the bathrooms are checked and cleaned several times, as necessary. However, the residents are entitled to their privacy in the bathrooms and staff does not check the bathroom every time a resident uses it. Tag A1005 was designated a Class III deficiency, and the facility was required to and did correct this deficiency immediately after it was discovered. In light of the totality of the circumstances, the Agency did not properly cite the facility for a violation of this tag. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS A1101 AND A1103 The Agency cited Oakland Manor for a Tag A1101 deficiency for failure to adhere to the staff record standards in Rule 58A-5.024(2)(a), Florida Administrative Code. That rule requires that the personnel records of each facility staff member contain the verification of freedom from communicable disease, including tuberculosis. The Tag A1101 deficiency was based on a review of eight personnel files, which revealed three files that contained no documentation that the respective employees were free from communicable disease. The three employees, for whom there was no documentation, had been hired two or three months prior to the June 28, 2001, re-licensure survey, on March 20, April 4, and April 20, 2001. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG A1103 The Agency cited Oakland Manor for a deficiency under Standards of Tag A1103. That tag requires that, within 30 days of being hired, a facility staff member must "submit a statement from a health care provider, based on an examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis." See Rule 58A-5.019(2)(a), Florida Administrative Code. The rule further provides that such "freedom from tuberculosis must be documented on an annual basis." The Tag A1103 deficiency was assigned based on the Agency's review of the personnel files of eight of the facility’s staff members. The Form 3020 states that the files of four employees, W.W., L.M., J.V., and M.J., hired July 5, 1992, November 1999, April 23, 2001, and March 20, 2001, respectively, did not contain documentation of freedom from tuberculosis, obtained from a test in the last 365 days. The Agency's finding that the facility failed to comply with the staffing standards in Rule 58A-5.019(2)(a), Florida Administrative Code, is well-founded as it relates to the staff members employed on July 5, 1992, and November 1999. However, the requirement that freedom from tuberculosis must be documented annually can not be the basis for the Tag A1103 deficiency, as it relates to the two employees hired on March 20, 2001, and on April 23, 2001, only two or three months from the date of the survey. SEPTEMBER 18, 2001, APPRAISAL VISIT TAG A519 On September 18, 2001, the Agency conducted an appraisal visit of the facility and cited it for a Tag A519 deficiency, which relates to failure to maintain minimum staffing standards required in Rule 58A-5.019, Florida Administrative Code. The cited deficiency was based on the fact that the facility census was sixteen. In accordance with the foregoing rule, on the day of the September visit, the resident facility was required to have a weekly minimum of 253 staffing hours, but the facility only had 208 hours. Based on its review of records proved by the facility, the Agency properly concluded that the facility did not meet the minimum staffing standards for the first two weeks of September 2001. The Agency designated the Tag A519 as a Class III deficiency and properly noted that this was a "repeat deficiency." SEPTEMBER 18, 2001, APPRAISAL TAG A1004 Tag A1004 requires that the windows, doors, plumbing, and appliances of the facility be in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. The Agency found that Oakland Manor was in violation of this standard. According to the surveyor, the basis for this alleged violation was that "certain light fixtures throughout the facility were being maintained in an unsafe manner" and that "numerous bare (uncovered by globe or shade) light bulbs were observed, specifically in the dining area and in the main building bathrooms." The Agency concluded that the "unprotected bulbs are in danger of being broken, putting the residents at risk." Although the Agency cited the facility for the exposed light bulbs, the surveyor testified that there is not a specific tag that addresses the hazards of a light bulb, but the designated Tag A1004 “was the best available citation, quite frankly.”
Recommendation 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 revising the survey reports to delete and/or modify the deficiencies described in the Forms 3020 that are not supported by the record and granting Oakland Manor's application for renewal of its assisted living facility license. DONE AND ENTERED this 4th day of October, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2002. COPIES FURNISHED: A. S. Weekley, Jr., M.D., Esquire Holland and Knight LLP 400 North Ashley Drive Tampa, Florida 33602 Eileen O'Hara Garcia, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701 Lisa McCarthy, Administrator Oakland Manor ALF 2812 North Nebraska Avenue Tampa, Florida 33602 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether Hospice of Southwest Florida, Inc. has standing to initiate a challenge to the issuance of a license to Hospice of Charlotte, Inc.
Findings Of Fact The facts alleged in the petition, which for purposes of this Motion, are taken as true, are as follows: In a March 10, 1994 letter, the President of HOC notified AHCA that the Board of Directors met that day and decided to dissolve HOC, that the only patient receiving services had been transferred to another provider, and that HOC intended to accept no further referrals. On March 15, 1994, AHCA responded by "terminating the license of Hospice of Charlotte effective March 10, 1994." AHCA requested a copy of the minutes of the March 10th board meeting. On March 25, 1994, the President of HOC wrote to AHCA again, this time requesting review of his letter seeking dissolution, "for the purpose of re- opening our case." He said the Board, on March 10th, intended to restructure the operation and, on March 22nd, met again and approved an agreement to work with another home health agency. Referring in his letter to advice given him in a telephone conversation with agency staff, the President sent HOC licenses number 0046 and 00442 to AHCA. The licenses had April 30, 1994 expiration dates. The letter also stated that HOC and its new partner would re-apply for licensure. In May 1994, HOC requested the return of the renewal license fee sent in on March 3, 1994, for a license that was not pursued. In December, 1994, AHCA investigated an allegation that HOC was continuing to operate without a license and concluded by finding the allegation unconfirmed. HOC had no license after March 1994 until January 31, 1995, when AHCA issued License No. 5015-94 to HOC, effective from May 1, 1994 to April 30, 1995. On April 21, 1995, AHCA notified HOC that its license was void ab initio for failure to first obtain a certificate of need (CON). The following facts are taken from public records at DOAH and from documents submitted by HOC as attachments to the Motion In Opposition: On May 16, 1995, HOC filed a Petition For Formal Administrative Hearing challenging AHCA's April 21, 1995 action voiding its license. On June 1, 1995, the First District Court of Appeal issued an Order to Show Cause by June 7, why a petition to review non-final administrative action should not be granted, and required the agency to specifically address the authority of the agency to revoke HOC's license. On June 7, HOC and AHCA entered into a settlement agreement, pursuant to which HOC voluntarily dismissed its actions at DOAH and in the District Court, and AHCA withdrew its letter of April 21, 1995, and issued HOC a license effective May 1, 1995. There is no evidence in the record of HOC's CON status. Whether HOC has or ever had a CON, or was a grandfathered provider is not know.
Recommendation 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 dismissing the Petition For Administrative Hearing filed by Hospice of Southwest Florida, Inc. DONE AND ENTERED this 1st day of September, 1995, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1995. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 J. Robert Griffin, Esquire McFarlain, Wiley, Cassedy & Jones, P.A. 215 South Monroe Street Suite 600 Tallahassee, Florida 32301 Peter A. Lewis, Esquire Goldsmith & Grout, P.A. 307 West Park Avenue Post Office Box 1017 Tallahassee, Florida 32302-1017 R. S. Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Tom Wallace Assistant Director Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact Upon consideration of the evidence presented at the hearing, the following relevant findings of fact are made: The Respondent, Scarlet Manor, Inc., d/b/a Scarlet Manor is located at 13009 Lake Carl Drive, Hudson, Florida. At all times material to this proceeding, Respondent has been licensed by the Agency to operate an ACLF (facility) at 13009 Lake Carl Drive, Hudson, Pasco County, Florida, housing a maximum of 40 residents. Ray Dorman is the owner of Scarlet Manor and has operated the facility since 1984. The facility primarily serves clients who are or have been diagnosed as suffering from a mental illness. On January 14, 1994, the Agency conducted a biennial survey of the facility and found violations in 68 categories of Class III deficiencies. During an exit interview on January 14, 1994, following the completion of the biennial survey, the Respondent's employee was advised of the deficiencies and was told that the deficiencies had to be corrected by February 14, 1994. The Agency reported the results of its biennial survey in a Summary of Deficiencies For ACLF Licensure Requirements (Summary of Deficiencies). A copy of the Summary of Deficiencies was furnished to the Respondent, who acknowledged on February 21, 1994, that a copy of the Summary of Deficiencies had been received on February 19, 1994. As indicated by the Summary of Deficiencies, a large number of the deficiencies were cited due to the unavailability of records at the time of the biennial survey. The records were kept at Ray Dorman's residence rather than the facility and Mr. Dorman was not available on the day of the survey to produce the records. Another large number of the deficiencies pertain to record keeping, and one would have to strain to show that such deficiencies, individually or jointly, "indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents". At the time Respondent acknowledged receipt of the Summary of Deficiencies it requested an extension for correcting the deficiencies from February 14, 1994, until March 21, 1994. The Agency granted the request for extension. The Respondent did not request any further extension. On March 21, 1994, the Agency revisited the facility and determined that 15 deficiencies remained uncorrected. The Respondent was again provided with a Summary of Deficiencies which, under column (4), indicated March 21, 1994 as the date of revisit, the identifying number of the deficiency and whether the deficiency was corrected or not corrected on the date of revisit. By letter dated July 1, 1994, the Agency denied Respondent's application for renewal of its license to operate the facility which had expired on March 11, 1994. The specific basis for the Agency's denial was the Respondent's failure to maintain minimum standards for an ACLF as evidenced by the Respondent's failure to correct the 15 deficiencies previously identified in the Summary of Deficiencies as not being corrected within the Agency's extended time of March 21, 1994. The letter identified and listed only 11 uncorrected deficiencies. The difference in numbers of deficiencies in the Summary of Deficiencies (15) and those listed in the denial letter (11) results from the Agency combining deficiencies ACLF300, ACLF301 and ACLF303 as number 3; above combining deficiencies ACLF702 and ACLF703 as number 4 above; and failing to list deficiency F.S.28, a catch all deficiency, pertaining to the failure to meet all federal, state and local codes as evidenced by the other listed deficiencies. No documentation of radon testing. Deficiency ACLF203 in the Summary of Deficiencies alleges that the facility did not have proof that radon testing as mandated by Section 400.056, Florida Statutes, has been conducted. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. On January 14, 1994, the Respondent did not have documentation of radon testing for the facility because there had been no testing of the facility for radon. During the interim between January 24, 1994, and March 21, 1994, the Respondent was in the process of engaging someone to test the facility for radon. However, due to the cost of testing the facility for radon and the availability of people certified to test for radon, the Respondent was unable to have the radon test completed by March 21, 1994, but Respondent did have the radon test (analysis) of the facility completed and documentation available on March 28, 1994. No documentation that all employees are free from signs and symptoms of communicable disease. Deficiency ACLF508 in Summary of Deficiencies alleges that on January 14, 1994, staff did not appear to be free from apparent signs and symptoms of communicable diseases, as documented by a statement from a health care provider, in that there was no statement for five of the six employees reviewed; three of whom had been employed over 30 days. Also it was noted that two of the employees had T. B. and VDRL tests only. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. On January 14, 1994, the Respondent failed to produce certification from a health care provider certifying that employees Cheryl O'Shell, Cindy Plunkett and Arlene Hutchinson, who had been employed for over thirty days, were free of communicable diseases. Apparently the other four employees either had the required certification or had not worked for the Respondent over 30 days. Rule 10A-5.0131(2)(cc), Florida Administrative Code, defines a health care provider as physician duly licensed under Chapter 458 or 459, Florida Statutes, or an advanced registered nurse practitioner (ARNP) duly licensed under Chapter 464, Florida Statutes. On March 21, 1994, at the time of the Agency's revisit, facility employee Cheryl O'Shell had test results but no certification from a health care provider. On March 21, 1994, facility employees Arlene Hutchinson and Cindy Plunkett had test results and a certification signed by registered nurse rather than an health care provider. This deficiency has subsequently been corrected. Appropriate resident contracts were not on file or did not contain required elements. Deficiency ACLF300 in the Summary of Deficiencies alleges that: (a) a female resident had signed the resident contract on May 4, 1989, however, a legal guardian was appointed January 17, 1992 and the contract was not re- executed; and (b) another female resident did not have an executed contract in her record available for review. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. Facility resident Tina Mickler, the female resident referred to in 12(a) above, had signed a contract in 1989 upon admission to the facility prior to being adjudicated incompetent and having a guardian appointed by the court. After Tina Mickler signed the contract on admission, Tina Mickler and her father, jointly executed a contract with the facility before her father was appointed guardian on January 17, 1992. After the March 21, 1994, revisit, Tina Mickler's father, as guardian, executed a new contract with the facility on behalf of Tina Mickler. Facility resident Mary Heagrey, the female resident referred to in 12(b) above, had a signed contract on file with the facility on January 14, 1994 and on March 21, 1994, notwithstanding testimony of the Agency witness to contrary. Apparently, the contract was overlooked when reviewing her records. Deficiency ACLF301 in the Summary of Deficiencies alleges that the facility resident contract did not contain certain provisions required by statute and rule. It is further alleged that only one provision of the resident contract had been corrected at the time of the March 21, 1994, revisit. The Agency reviewed nine out of 28 resident contracts. Some of the nine contracts reviewed did not have all of the provisions that were required by statutes and rules as of January 14, 1994. There was no evidence that the contracts were not in accordance with the statutes and rules at the time they were executed by the resident. At the time of the revisit on March 21, 1994, the provision identified as number 1 under ACLF301, concerning prorated refunds for the unused portion of payments after termination, had been corrected. However, those provisions identified as numbers 2, 3 and 4 under ACLF301, concerning refunds if the facility discontinues operation, disbursement of refunds under Florida Probate Code for a deceased resident and the handling of funds where they are not disbursed under the Florida Probate Code, respectively, were not corrected in that those resident contracts lacking those provision had not been replaced with a newly executed contract with those provisions or had those provisions added to the contract with an addendum. This deficiency has subsequently been corrected. Deficiency ACLF303 in the Summary of Deficiencies alleges that on January 14, 1994, the facility did not have for review an admission package, and as such, it could not be determined that all information was included as required by Rule 10-5.024(2)(a)3., Florida Administrative Code. It is further alleged that this deficiency was not corrected at the time of March 21, 1994, revisit. The facility did not have an admission package per se for review during the Agency's January 14, 1994, or March 21, 1994, visits. However, the facility did have the necessary documents to review with a new resident but they were not contained in a packet to give to the resident; therefore, the Agency could not determined if all required information was included. This deficiency has been corrected in that the facility now has an admission packet. No documentation of social or leisure services activities and activities calendar were followed. Deficiency ACLF702 in the Summary of Deficiencies alleges that on January 14, 1994, that it could not be determined that opportunities were provided for social and leisure services to facilitate social interaction, enhance communication and social skills, and reduce isolation and withdrawal. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. Deficiency ACLF703 in the Summary of Deficiencies alleges that on January 14, 1994, the administrator or designee had not fulfilled his responsibility for the development and implementation of or arrangement for participation by residents in an ongoing activities program. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. While there appeared to be some effort on the part of the facility to fulfill its responsibility Rule 10A-5.0182(4), Florida Administrative Code, at the time of the January 14, 1994, survey and the March 14, 1994, revisit, regarding social and leisure services, to provide a activities calendar and to develop and implement arrangements for participation by residents in an ongoing activities program, the facility's effort fell short of what is required in this regard. However, the facility's efforts in this regard subsequent to the March 21, 1994, revisit have corrected those deficiencies. Residents rights and freedoms not protected or provided for. Deficiency ACLF705 in the Summary of Deficiencies alleges that the facility has a written policy that no one is allowed to go to the store after dark which is an infringement on the residents' rights and freedoms. There was testimony concerning a facility policy of requiring resident visitors to be cleared with the Administrator; however, this was not covered in the Summary of Deficiencies under deficiency ACLF705 or any other deficiency. At the time of both the January 14, 1994, survey and the March 21, 1994, revisit, the policy of the facility was not to allow residents to leave the facility after dark and that visitors were to be cleared by the administrator. The basis for these policies was the safety of the residents due the location of the facility, particularly, the policy of not leaving the facility after dark to go to the store. This is no longer a policy of the facility. The facility residents are free to come and go as they may desire. Lack of documentation of facilities response to resident complaints. Deficiency ACLF710 in the Summary of Deficiencies alleges that there was no documentation that the facility responded to resident complaints, in that there was no procedure available for review of complaints received and responses documented. While there was evidence that the facility did encourage filing complaints and did respond to complaints received, the facility did not have an established procedure whereby the review of complaints received and responses were documented. The facility now has an established procedure for documenting the review of complaints and responses. Furnishings not in good repair. Deficiency ACLF904 in the Summary of Deficiencies alleges that furniture was not in good repair, as evidenced by the worn, torn and broken sofa and chairs in the lounge area. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. At the time of the March 21, 1994, revisit there was a torn chair in the lounge area. Ray Dorman testified that the furniture observed on March 21, 1994, was not the same furniture observed on January 14, 1994, because that furniture had been thrown away. Dorman further testified that the torn chair observed at the time of the March 21, 1994, revisit had been torn by a resident in interim between the January 14, 1994, survey and the March 21, 1994, revisit. However, I do not find this testimony to be credible, particularly since the Agency employee conducting the revisit was not made aware of this by anyone at the facility. Proper care not being given to insect control. Deficiency ACLF905 in the Summary of Deficiencies alleges that there is lack of an effective control method to prevent against flies, rodents and other insects from entering the facility as evidenced by: (a) exit doors at end of each corridor did not close properly; and (b) doors to center patio did not close properly. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. This deficiency did exist on January 14, 1994, and was not corrected at the time of the March 21, 1994, revisit. However, this deficiency was corrected shortly after the March 21, 1994, revisit. Hot water exceeds maximum allowable temperature. Deficiency ACLF1023 in the Summary of Deficiencies alleges that hot water service to lavatories, showers and baths for residents' use had water temperature readings of 135 degrees thereby exceeding the maximum of 115 degrees provided for in Rules 10A-5.0221(3) and 10A-5.023(10)(e), Florida Administrative Code. This deficiency did exist on January 14, 1994, and was not corrected at the time of the March 21, 1994, revisit. This deficiency was corrected after the March 21,1994, revisit, and the day of the hearing the hot water temperature for the residents' use was at 115 degrees. Automatic smoke detectors not serviced. Deficiency F.S.17 in the Summary of Deficiencies alleges that there was no documentation of the automatic smoke detectors having the required sensitivity test during the past two years. The facility had documentation of annual inspections of the automatic smoke detectors for March 23, 1993, March 11, 1994 and March 13, 1995. Both the 1994 and 1995 report shows the automatic smoke detectors having the required sensitivity test. However, while the 1993 report does indicate that the required sensitivity test was conducted, Ray Dorman's testimony, which I find credible in this regard, was that the test was performed and paid for, but the failure to note that on the report was an oversight which he failed to note and have corrected. The evidence appears to show that the Agency was not provided with these reports at the January 14, 1994, or March 21, 1994, visits. Emergency lighting inoperable. Deficiency F.S.21 in the Summary of Deficiencies alleges that the emergency lighting was not maintained as evidenced by the lights in the corridors or dining room failing to operate when tested. This deficiency existed at the time of the January 14, 1994, survey. During the interim between January 14, 1994, and March 21, 1994, Ray Dorman caused the emergency lighting system to be checked and repaired. However, on March 21, 1994, there was one light out in the west corridor; therefore, the Agency considered the deficiency as not being corrected. There was no evidence that any of the above deficiencies was a repeat deficiency as that term is defined in Rule 10A-5-0131(2)(xx), Florida Administrative Code, or that they were recurring deficiencies. There was sufficient evidence to show that the above deficiencies, in the aggregate, did potentially threaten the health, safety, or welfare of the facility residents. The deficiencies cited in the administrative complaint in AHCA No.: 05-94-053-ACLF were the same deficiencies cited in the denial letter of July 4, 1994, which eventually resulted in a default Final Order being issued against Scarlet Manor on the basis of the administrative complaint on September 7, 1994. Administrative fines in the amount of $3,250 were assessed against Scarlet Manor, which fines remain unpaid and no payment plan has been arranged. A default Final Order was issued against Scarlet Manor in AHCA No.: 05-94-052-ACLF on September 7, 1994, wherein an administrative fine in the amount of $1,750 was assessed against Scarlet Manor, which fines remain unpaid and no payment plan has been arranged.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and considered the factors set forth in Section 400.419(2), Florida Statutes, and Rule 10A-5.033, Florida Administrative Code, it is recommended that the Petitioner Agency For Health Care Administration enter a final order finding that Respondent Scarlet Manor has outstanding fines for which there has been no payment plan arranged. It further recommended that Respondent Scarlet Manor's renewal license be denied unless such fines are paid forthwith or a payment plan is arranged under the terms and conditions the Agency deems appropriate. RECOMMENDED this 21st day of June, 1995, in Tallahassee, Florida WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4475 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 23are adopted in substance as modified in Findings of Fact 1 through 39. Respondent's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 9 are adopted in substance as modified in Findings of Fact 1 through 36. COPIES FURNISHED: Thomas W. Caufman, Esquire Division of Health Quality Assurance Agency for Health Care Administration 7827 N. Dale Mabry Highway, Suite 100 Tampa, Florida 33614 Eloise Taylor, Esquire Taylor and Wilkerson 11912 Oak Trail Way Port Richey, Florida 34668 Sam Powers, Agency Clerk Agency for Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303 Jerome W. Hoffman, General Counsel Agency for Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact Nancy Boles owns and has operated Happy Days Guest Ranch for some 14 years. This facility is licensed as an ACLF and has no record of complaints other than those contested at this proceeding. On or about March 4, 1987, DHRS received a report from an undisclosed source that a resident at the Happy Days Guest Ranch ACLF had been abused by the proprietor, Nancy Boles, and an investigator was sent to the ACLF. Apparently the allegation was that Respondent had slapped a resident. At this time there were approximately 6 residents at the ACLF. After talking to these residents and with Respondent, the investigator, Katherine Massaro, concluded that a substantiated report of abuse had occurred. The HRS Division of License and Certification was notified and a decision was made to relocate the six residents and place a moratorium on further admissions to the ACLF. Additionally, Respondent's application to renew her ACLF license was denied. No evidence was presented that the HRS Division of Adult Services, filed a notification of a confirmed report of abuse against Respondent and placed her on the abuse register. Accordingly, this is not a proceeding challenging a confirmed report of abuse of the aged but is a license revocation proceeding. It is apparent that HRS notified the State Attorney's Office of the alleged abuse and the charges disposed of in Exhibit 1 were preferred. No adjudication of guilt was made in that case. Petitioner's eye witnesses to the alleged abuse were two elderly women. The younger, Mardell Surrency, whose deposition is Exhibit 2, was 75, and the other, Alice Beasley, whose deposition is Exhibit 3, was 86. Both of these women testified that they saw Respondent slap Fowler Simmons, another resident of the ACLF who is senile or has other mental impairment that led these witnesses to conclude that mentally Simmons was "real bad" with the mind of a child who had to be told everything to do. Both witnesses gave an indication (pantomined) of how Respondent slapped Simmons. Unfortunately, a verbal description of this act is not contained in their deposition. Surrency testified that Beasley "was 86 years old so she didn't pay much attention to anything." Beasley, on the other hand, testified that she and "Modelle" were sitting alongside each other when the incident occurred and she and "Modelle" had often talked about how mean Respondent talked to Simmons. Neither ever saw any bruise on Simmons' face or body or ever saw Respondent strike Simmons other than this one time. Both testified Respondent told Simmons to not sit there "like a damn fool." Respondent's version of the incident was that she did indeed slap Simmons, but gently on the mouth, to get him to eat the meal she had prepared. She demonstrated a very light slap with the palm of her hand on the lips. This evidence is deemed more credible than the often rambling and disjointed testimony of the two female residents of the ACLF.
Conclusions Having reviewed the Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency issued the Petitioner, a renewal applicant for assisted living facility licensure, the attached Notice of Intent to Deny and Election of Rights form. (Ex. 1) The Election of Rights form advised the Petitioner of the right to an administrative hearing pursuant to Sections 120.57(1) and 120.57(2), Florida Statutes. 2. The Petitioner filed a Petition for Formal Administrative Hearing. 3. The Petitioner subsequently filed a Notice of Voluntary Dismissal. (Ex. 2) IT IS THEREFORE ORDERED THAT: 1. The Petitioner’s request for hearing is dismissed, the Agency’s Notice of Intent to Deny is upheld, and the Petitioner’s renewal application for an assisted living facility license is DENIED. 2. In accordance with Florida law, the expiration date of the existing license is extended 30 days for the sole purpose of allowing the safe and orderly discharge of clients. At the conclusion of 30 days or upon the discontinuance of operations, whichever is first in time, the Petitioner shall immediately return the license certificate for the license which is the subject of this action to the appropriate licensure unit in Tallahassee, Florida. 3. In accordance with Florida law, the Petitioner is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in authorizing statutes and applicable rules. The Petitioner is advised of Section 408.810, Florida Statutes (2013). 4. In accordance with Florida law, the Petitioner is responsible for any refunds that may have to be made to the clients. The Petitioner is advised of Section 429.31, Florida Statutes (2013). 1 Filed May 20, 2014 11:28 AM Division of Administrative Hearings 5. The Petitioner is given notice of Florida law regarding unlicensed activity. The Petitioner is advised of Section 408.804 and Section 408.812, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions. The Petitioner is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program and private contracts. ORDERED in Tallahassee, Florida on this Le day of YA Nea , 2014. Mier) Elizabeth Dudek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy-of this Final Order has been furnished by the method designated to the persons named below on this ay of VA Z Z » 2014. Richard J. Shoop, Agency Cler! Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Telephone: (850) 412-3630 Jan Mills Catherine A. Avery, Acting Unit Manager Facilities Intake Unit Assisted Living Unit Agency for Health Care Administration Agency for Health Care Administration Cnteroffice Mail) (Interoffice Mail) Finance & Accounting Revenue Management Unit Agency for Health Care Administration (nteroffice Mail) Arlene Mayo-Davis, Field Office Manager Area |] — Dade Agency for Health Care Administration (Interoffice Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Interoffice Mail) Teresita A. Vivo, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Interoffice Mail) Peter A. Lewis, Esquire Law Offices of Peter A. Lewis, P.L. 3023 North Shannon Lakes Drive. Suite 101 Tallahassee, Florida 32308 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. (3) Any person who knowingly alters, defaces, or falsifies a license certificate issued by the agency, or causes or procures any person to commit such an offense, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Any licensee or provider who displays an altered, defaced, or falsified license certificate is subject to the penalties set forth in s. 408.815 and an administrative fine of $1,000 for each day of illegal display. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until 3 compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
