The Issue The issue is whether Respondent is entitled to the renewal of his license to operate an adult family-care home.
Findings Of Fact At all material times, Petitioner has operated an adult family-care home at 7128 North 50th Street in Tampa. Petitioner owns this home with his cousin. In anticipation of the expiration of his license on September 29, 2006, Petitioner filed with Respondent an application for renewal on May 23, 2006. Renewal applications prompt annual survey inspections, so, after the receipt of Petitioner's renewal application, one of Respondent's surveyors visited the home and performed an annual survey inspection. She noted items that required a follow-up inspection, so, on August 3, 2006, one of Respondent's surveyors returned for the follow-up inspection. Respondent's surveyor was met at the door by Sherille Guider, who stated that she was the caregiver. The surveyor asked to see Petitioner, but she told her that Petitioner did not live at the house, although she showed the surveyor the locked room that belonged to Petitioner. When asked to produce certain routine documents, the caregiver replied that she did not have access to such documents, as they were in the locked room of Petitioner and the caregiver did not have a key. Petitioner appeared a short time after the surveyor's arrival and produced the requested documents. There is some dispute as to whether he offered to show his room to the inspector, but his testimony is unrebutted that he kept a room, with clothes and toiletries, for his exclusive use at the home. He claimed that he resided at the home, although he admitted that did not spend every night there. Subsequent investigation revealed that Petitioner and his wife, from whom he has been separated for two years, claim a different residence within Hillsborough County as their homestead property. Also, Petitioner's driver license currently bears the address of the home, but, at the time of the incident, bore the address of his homestead property. The same appears to be true of the certificate of title to his motor vehicle. Petitioner testified that he originally planned to operate the home as his fulltime job, but was unable to generate enough money doing so. He has since found employment as a certified nursing assistant and often works the 11:00 p.m. to 7:00 a.m. shift. Four or five months prior to the follow-up inspection, Petitioner had hired Ms. Guider to serve as a caregiver at the home. In return for her services as a caregiver, Petitioner rented a room in the home to her at reduced rent. Petitioner allowed her boyfriend also to move into a room, but required a background screening on him, as well as on Ms. Guider. After several delays, the boyfriend completed his form, and, after submitting it, Petitioner learned that the boyfriend had a criminal record. Petitioner demanded that the boyfriend move out. Eventually, Petitioner had to summon law enforcement officers to eject the man. This episode preceded the follow-up inspection. Ms. Guider's hearsay statement to Respondent's surveyor appears to be the strongest evidence on which Respondent is relying in this case. However, for the reason noted above, Ms. Guider was unhappy with Petitioner. Even before her boyfriend had been ejected from the home, Ms. Guider had approached Petitioner's two residents with a plan for her to start her own adult family-care home and for them to move into it. Ms. Guider's short period of employment with Petitioner terminated one day when, without notice, she asked a friend of Petitioner to drive her to the airport so she could fly home to Chicago. She did and never returned. For all these reasons, Ms. Guider does not appear to be a reliable source of information as to Petitioner's place of residence. Petitioner testified that he resides at the home. A friend of 20 years, who also operates an adult family-care home, testified that she visits Petitioner's home regularly and knows that he resides there. Petitioner's claiming of homestead exemption at another address is less evidence of his primary residence and more evidence of his carelessness or fraud in maintaining current information with the Hillsborough County property appraiser's office. The old addresses shown on the driver license and certificate of title are of little importance in determining Petitioner's residence, given the other evidence establishing the home as his residence and his subsequent updating of the addresses in these official records.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Petitioner's application to renew his adult family-care home license. DONE AND ENTERED this 16th day of April, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of April, 2007. COPIES FURNISHED: Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Kenneth A. Donaldson 7128 North 50th Street Tampa, Florida 33617 Gerald L. Pickett Agency for Health Care Administration 525 Mirror Lake Drive Sebring Building, 330K St. Petersburg, Florida 33701
The Issue The issue is whether Respondent should be subject to administrative penalties, up to and including revocation of its group home license, for non-compliance with the residential facility requirements of Chapter 393, Florida Statutes (2007).
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habilitation centers. Respondent holds a group home facility license. The group home is located in Lake City, Florida. Ms. Amanda Houston is the operator of the group home. Ms. Houston is responsible in that capacity for compliance with statutes and rules relating to residential facilities. At all times material here, A.D. was a vulnerable 17-year-old female who resided at the group home. A.D. is mentally retarded and has significant behavior issues. Ms. Nigeria Taiwan Wills was a trusted employee of the group home for four or five years. On October 8, 2008, Ms. Wills was responsible for the supervision and care of the group home's disabled residents. On October 8, 2008, Ms. Wills began her shift at 2:00 p.m. and worked until 8:00 p.m. During at least part of that time, Ms. Wills was the only staff member present in the home. On October 8, 2007, while under the supervision of Ms. Wills, A.D. suffered significant injury to her buttock area. The next morning, Ms. Houston arrived at the group home around 6:30 a.m. Ms. Houston woke A.D. who dressed herself. Ms. Houston gave A.D. her medications. Ms. Houston did not notice any difference in A.D.'s demeanor. A.D. seemed normal in every way. The group home had four residents. Three of the clients, including A.D., rode a bus to school. On October 9, 2009, the bus arrived to pick up the clients at 8:10 a.m. It left the facility at 8:20 a.m. Ms. Houston was not aware of A.D.'s injury before the bus picked her up. On October 9, 2008, Ms. Wills visited the group home around 11:00 a.m. to pick up a piece of paper that she had left there the night before. While at the group home, Ms. Wills casually mentioned to Ms. Houston that she had an incident with A.D. the night before, that it was no big deal, and that she would tell Ms. Houston about it when she returned to work her shift that evening. Ms. Wills then left the group home. Ms. Wills did not have a home phone. All supervisory employees of the group home are trained to keep notes during every shift to record chronologically all events occurring at the group home. If an injury of any kind occurs, an employee is supposed to immediately fill out an incident report and call Ms. Houston. Ms. Houston knew that Ms. Wills had not filled out an incident report the night before. Ms. Houston read Ms. Wills' notes from the night before and, finding no reference to an incident with A.D., mistakenly assumed that whatever had happened truly was no big deal. This was not an unreasonable conclusion given Ms. Wills' long-term employment with no complaints and A.D.'s history of stealing and other behavior problems. In the mean time, Ms. Lanitra Sapp, a child protective investigator for the Department of Children and Family Services, received a call from A.D.'s school. Ms. Sapp subsequently visited the school, interviewed A.D., and observed bruising to her buttocks and upper thigh. Ms. Sapp concluded that the bruising was consistent with physical abuse. Ms. Sapp then took A.D. to her office. When A.D. did not get off the bus after school, Ms. Houston called the school, A.D.'s mother, and A.D.'s waiver support coordinator. Ms. Houston was unable to locate A.D. until she received a call from Ms. Sapp, asking Ms. Houston to go to Ms. Sapp's office. At Ms. Sapp's office, Ms. Houston and her husband, Adam Houston, first learned about A.D.'s injury. Mr. and Mrs. Houston were shocked at the degree of A.D.'s injury as reflected in photographs. After a short meeting, A.D. voluntarily rode with the Houstons to the group home. Ms. Sapp followed in her car. When the Houstons and Ms. Sapp arrived at the group home, the police were already there. Ms. Wills was also there. Ms. Houston left A.D. in the car with Mr. Houston before going into the group home. Ms. Wills talked to the police and Ms. Sapp in separate interviews. At some point, Ms. Wills told the police that she had spoken to Ms. Houston about the incident that morning. Ms. Houston admitted to the police and Ms. Sapp that Ms. Wills had made a reference to an incident that morning. Ms. Wills never admitted that she spanked A.D. with a belt. Ms. Houston placed Ms. Wills on administrative leave just before the police handcuffed her and took her to jail. Immediately thereafter, Ms. Houston prepared and sent an official incident report to Petitioner and A.D.'s waiver support coordinator. A.D. wanted to remain at the group home. Her mother and waiver support coordinator agreed. A.D. remained in that environment until March 2008, when Respondent lost its status as a Medicaid waiver provider. Ms. Houston never let Ms. Wills return to the group home. Instead, Ms. Houston paid Ms. Wills for one week of earned wages and one week of vacation time. This was the final pay check for Ms. Wills. Within days, Ms. Houston took A.D. to see her pediatrician for a medical evaluation. A week or so later, Ms. Sapp took A.D. for an evaluation by the Department of Children and Family Services child protection team. The Department of Children and Family Services subsequently issued a report containing verified findings of failure to protect against Mr. and Ms. Houston and maltreatment/physical injury against Ms. Wills.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that Respondent's license is not subject to discipline for failure to protect. DONE AND ENTERED this 29th day of October, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 29th day of October, 2008. COPIES FURNISHED: Julie Waldman, Esquire Agency for Persons with Disabilities 1621 Northeast Waldo Road Gainesville, Florida 32609 Lloyd E. Peterson, Jr., Esquire 905 Southwest Baya Drive Lake City, Florida 32025 John Newton, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 James DeBeaugrine, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
The Issue The issue in this proceeding is whether the Department of Children and Family Services should renew the daycare license of Petitioner.
Findings Of Fact Tara Grizzell owned and operated Koala Kuties (the Center) which was located in Brooksville, Florida. At the time of the notice of denial, Petitioner's annual license was scheduled to expire on July 9, 2006. Glenda McDonald is a daycare licensing agent with the Department. She conducted an inspection of the Center on October 30, 2003. During the course of the inspection, Ms. McDonald completed a 63-item checklist of the facility. On this checklist, Ms. McDonald noted that the Center was not in compliance with applicable statutes and rules in some areas. The areas of non-compliance noted were that the Center was not in compliance in posting a log of monthly fire drills, medication was not locked or properly stored, and the required record keeping for the children's health and immunization records was disorganized. The checklist shows a required compliance date of the close of business on the date of inspection for the violations regarding records of fire drills and improperly stored medications. Regarding record keeping of health and immunization records, Ms. McDonald noted that there would be a re-check in four months. Approximately four months later, Ms. McDonald conducted another inspection of the Center on February 23, 2004. Again, Ms. McDonald noted on the inspection checklist that the Center was not in compliance with the requirements regarding record keeping of the children's health and immunization records. In addition, Ms. McDonald found that the Center was not in compliance regarding proper storage of toxic and hazardous materials because bleach, cleaner, and fingernail polish were accessible to children; the Center had failed to complete a required form regarding mandatory training for its employees; and required personnel and screening documents for the Center's employees were not complete. Ms. McDonald next inspected the Center on June 7, 2004. During that inspection, she again found that the monthly fire drill log had not been posted and employees' screening documents were still not completed. Ms. McDonald returned to the Center on October 28, 2004, to conduct another inspection. Ms. McDonald found the Center very disorganized with toys, dishes, and other items in places where people could trip over them. She noted on her inspection checklist that the Center was in violation for failure to keep the Center in clean and good repair. Additionally, Ms. McDonald again found the facility to be in non-compliance in the area of record keeping for the children's health and immunization records, personnel records, and personnel screening records. She also found the Center to be out of compliance regarding crib requirements because an infant was asleep on its tummy, and found the Center to be out of compliance for failure to maintain safe and adequate fencing because the playground fence was unlocked. On November 18, 2004, Ms. McDonald conducted a reinspection of the facility to determine whether Ms. Grizzell brought the facility into compliance. She again found it to be in non-compliance for failure to maintain the children's health and immunization records and failure to maintain the required employee screening documents. Ms. McDonald next made an inspection of the Center on February 7, 2005. She again found the Center to be in non- compliance in the areas of failure to post fire drill logs, failure to maintain required personnel documents, and the Center's lack of required documentation on two of the children. Additionally, Ms. McDonald found the Center to be cluttered and out of compliance with the requirement that the facility be clean and in good repair, and that substitutions to the planned menu were not recorded on the posted menu as required. Ms. McDonald made a reinspection of the facility on April 21, 2005, during which she again found the Center to be in non-compliance in the areas of the children's health and immunization records and required personnel and background screening records. On June 2, 2005, Ms. McDonald made another inspection of the Center and found everything to be in compliance except the children's immunization records, as they needed to be updated to reflect current immunizations. On October 6, 2005, Ms. McDonald made another inspection of the Center and again found it to be in non- compliance for failure to update the children's immunization and medical records, and failure to have complete personnel and background screening records on file. On January 24, 2006, Ms. McDonald inspected the Center and again found it to be in non-compliance, in that there was no report posted to show that a fire drill had been conducted in December 2005; there was evidence of smoking near the entrance of the facility and in the outdoor play area, and, therefore, not in compliance with requirements that all areas be free of toxic substances and hazardous materials; the immunization records of two of the children were not up-to-date; and the facility still did not have a complete record on file for all of the child care personnel nor required background screening documents. Additionally, Ms. McDonald found the Center to be in non-compliance for not posting their plan of scheduled activities as required and failing to store medicine properly. On May 25, 2006, Ms. McDonald again made an inspection of the facility and found it to be in non-compliance for incomplete files documenting required training of personnel, failure to have sufficient credentialed staff on the premises, failure to post a menu, and failure to maintain employee records and employee background screening requirements. Petitioner previously paid a civil penalty in the amount of $500 when a child wandered away from the Center and was found walking down a busy road in 2005.1/ Ms. Grizzell acknowledged at hearing that she had trouble with record keeping because there was a lot of turnover of employees. Further, she noted that on the January 24, 2006, inspection checklist, she was later found to be in compliance regarding the alleged violation of toxic and hazardous materials being present. Regarding the child who wandered away, Ms. Grizzell noted that the incident happened on the second day of care for the child.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order denying Petitioner's application for relicensure. DONE AND ENTERED this 4th day of December, 2006, in Tallahassee, Leon County, Florida. S ____ BARBARA J. STAROS 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 December, 2006
Findings Of Fact On or about July 18, 1988, Petitioner's representatives learned that Respondent's daughter was operating an ACLF, as defined in Part II of Chapter 400 Florida Statutes without having a license from Petitioner for such a facility. The facility was located at 1217 East 139th Avenue, Tampa, Florida. One of the residents in the facility at the time of Petitioner's employees' discovery of its unlicensed status had been recently transferred there from Respondent's licensed facility. Respondent knew her daughter's facility had been licensed by hotel and restaurant regulatory authorities. She also believed her daughter had obtained licensure from Petitioner for the operation of an ACLF. Testimony of Petitioner's witnesses that Respondent was aware of the absence of the facility's licensure by Petitioner is not credited in view of the testimony of Respondent and others to the contrary; also, Petitioner's employees did not include any incriminating statements of Respondent professing knowledge of such unlicensed status in their initial investigative reports in the matter. Uncontroverted testimony of Katherine H. Echevarria, a registered nurse of thirty years experience who holds a master's degree in nursing and is presently associated with research efforts of the College of Nursing at the University of South Florida, establishes that Respondent has a natural ability to lead and establish programs for disadvantaged older adults who are residents of Respondent's ACLF. Echevarria's testimony further establishes that Respondent possesses the character and competency required to operate her facility and provide continuing adequate care to residents.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting Petitioner's application for renewal of her license. DONE AND ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5455 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS Unnecessary to result reached. Addressed. Unnecessary to result reached. Addressed. Addressed. PETITIONER'S PROPOSED FINDINGS 1.-2. Adopted in substance. Unnecessary to result reached. Rejected, not supported by the greater weight of the evidence. COPIES FURNISHED: Edward A. Haman, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Arnold D. Levine, Esquire 100 South Ashley Drive Suite 1600 Tampa, Florida 33601-3429 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Agency's denial of Petitioner's request for exemption for employment as a Certified Nursing Assistant in an Assisted Living Facility pursuant to Section 435.07, Florida Statutes, was proper.
Findings Of Fact The Agency for Health Care Administration is responsible for conducting background screenings for employees of health care facilities licensed under Chapter 400, Florida Statutes. At all times material to this case, Petitioner, Nikita Johnson, a licensed certified nursing assistant, was employed by an assisted living facility in Pinellas County, Florida, providing personal services to the residents therein. On or before October 23, 2000, and after a level I background screening by the Assisted Living Facility (AFL) licensing unit, Petitioner requested a hearing on her exemption for employment application. On October 23, 2000, the ALF licensing unit conducted a telephonic hearing on Petitioner's request for an exemption for employment. ALF licensing unit denied Petitioner's request for exemption. The Agency proved that on December 23, 1998, Petitioner was arrested on the felony charge of sexual assault: a sexual offense against a child, and lewd lascivious acts in the presence of a child under the age of 16 years. The felony charges were reduced to misdemeanor charges. Petitioner entered a plea of guilty to each of the two counts of battery, was convicted, and sentenced to one-year probation, plus payment of a fine and court cost. Petitioner completed the terms and conditions of her probation on or about April 4, 2001. The Agency proved that on February 19, 2000, Petitioner was arrested on the misdemeanor charge of disorderly conduct, and on April 4, 2000, entered a plea of nolo contendere to which adjudication was withheld and a fine imposed. Petitioner has committed disqualifying offenses as defined by Chapter 435, Florida Statutes. Additionally, Petitioner is ineligible for exemption based on a failure to demonstrate any rehabilitative efforts and an appreciation of the seriousness of the criminal charges. Petitioner has not met her burden of clear and convincing evidence that she should not be disqualified from employment as required by Section 435.07(3), Florida Statutes. By mail at the last known address, Petitioner was notified of the time, date, and place of the final hearing and chose not to appear.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order denying Petitioner's request for exemption for employment, pursuant to Section 435, Florida Statutes. DONE AND ENTERED this 1st day of May 2001, in Tallahassee, Leon, County, Florida. FRED L. BUCKINE 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 1st day of May, 2001. COPIES FURNISHED: Nikita Johnson 121 North Mercury Avenue Clearwater, Florida 33765 Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issues presented here concern two administrative complaint letters filed by Petitioner against Respondent. Both complaint letters are dated March 26, 1982. The initial charges contain allegations concerning records keeping by Respondent related to patients and staff, and employee training, per Chapter 10A, Florida Administrative Code, and Chapter 400, Florida Statutes. The second prosecution letter alleges that one of the owners of the Respondent corporation acted as legal guardian for a resident in Respondent's facility, contrary to Chapter 400, Florida Statutes. EXHIBITS AND WITNESSES Petitioner presented two witnesses, Orey William Crippen, II, Adult Congregate Living Facility Licensing Office, State of Florida, Department of Health and Rehabilitative Services, District IV, and Charles H. Carter, Supervisor of Licensure and Certification, State of Florida, Department of Health and Rehabilitative Services, District IV. Petitioner offered ten exhibits which were admitted. Respondent presented Lynn Costner, co-owner of Lynn's Care Center, Inc. Respondent's four exhibits were admitted.
Findings Of Fact At all times pertinent to this case, Lynn and Ronny Costner were the owners of Lynn's Care Center, Inc., Respondent. In the relevant time sequence, that corporation operated through its co-owners. The business of Lynn's involved Adult Congregate Living Facilities, Phase II, by license issued by Petitioner in accordance with Chapter 400, Part II, Florida Statutes. One of the facilities was located at 1562 Garden Avenue, Holly Hill, Florida. The second facility was located at 1529 Ridge Avenue, Holly Hill, Florida. On January 25, 1982, the Garden Avenue facility was inspected by Orey William Crippen, II, a facility inspector for Petitioner. The purpose of the inspection was to monitor Respondent's compliance with regulatory provisions set forth in Chapter 10A, Florida Administrative Code, which was enacted to effectuate the purposes of Chapter 400, Florida Statutes. Crippen's inspection revealed that required documentation to demonstrate that facility residents Schofield and Thomaszewski had been examined by a physician or nurse practitioner to certify acceptability of their health status to reside in the center was not available in the facility at the time of the inspection. The information that was necessary would have had to demonstrate medical examination of the residents within thirty days of admission to the facility. Schofield had been admitted into the facility on November 30, 1981, and Thomaszewski had been admitted to the facility on November 6, 1981. In Schofield's case, there was no date of X-ray or examination shown in his file. Required medical information on the patient Thomaszewski was not available at the facility. Crippen also spoke with the co-owner Lynn Costner on January 25, 1982, to ascertain the whereabouts of the aforementioned medical information for the patients Schofield and Thomaszewski. This inquiry took place in the central office of Respondent at 73 West Granada Avenue, Ormond Beach, Florida. Although Schofield and Thomaszewski had been admitted to the hospital with medical examination information, this information was not available at the central office on the inspection date. Effective March 31, 1981, the necessary medical information was replaced by employees of the Respondent and the Schofield and Thomaszewski files were complete on the subject of the necessary documentation of health status. This replacement entailed the updating of material related to Thomaszewski, in that the medical examination information that accompanied him at the time of his admission to the facility was not current. While at the facility on January 25, 1982, Crippen was unable to find requisite information to establish that two persons working in the facility on the inspection day were free from communicable diseases. Nor was he provided necessary documentation demonstrating a negative tuberculosis test, via chest X- ray or physician statement certifying no tuberculosis, or information dealing with these employees related to communicable diseases detectable by skin tests. The employees were Judy Russell and Rick Costner, son of the owners of the facility. Again, Crippen's conversation with Lynn Costner in her Ormond Beach office on the date of inspection did not lead to the production of the necessary information to demonstrate that Judy Russell and Rick Costner were free from communicable diseases. Judy Russell and Rick Costner were no longer employed by Respondent on March 31, 1982. The facility did not have an employee on duty at the time of the January 25, 1982, inspection who was certified in an approved course in first- aid, which would include cardiopulmonary resuscitation, training in bleeding and seizure control or training in antidotes for poisons. By March 31, 1982, certain employees of Respondent had achieved first-aid training. Crippen's January 25, 1982, inspection did not uncover an employment application for Judy Russell or Rick Costner, either at the Garden Avenue facility or Respondent's office in Ormond Beach, Florida. Finally, Crippen's January 25, 1982, inspection did not reveal a signed contract between the residents Bateman and Thomaszewski and the facility at Garden Avenue. Bateman had been admitted to the facility on November 26, 1981. Those contracts were not made available by Lynn Costner when Crippen spoke to her in the Respondent's Ormond Beach office on the date of the inspection. The patients had entered the facility with contracts. Mrs. Bateman's contract had been signed by her nephew and Thomaszewski's contract had been signed by a relative. The missing contract problem was subsequently rectified, effective March 31, 1982, through efforts of employees of Respondent. On January 29, 1982, Charles H. Carter, Licensure and Certification Supervisor for District IV, wrote to Lynn and Ronny Costner, owners of Lynn's Care Center, and attached a deficiency statement document to that correspondence. A copy of the letter and deficiency statement may be found as Petitioner's Exhibit No. 1, admitted into evidence. The purpose of the letter and statement was to allow Respondent to offer corrections by written indication of steps to be taken to resolve problems discovered in the course of Crippen's inspection and the deficiency document contained a column for offering written corrections. It afforded the Respondent through February 15, 1982, to satisfy the problem related to employment applications for Judy Russell and Rick Costner. Respondent was allowed, until March 1, 1982, to correct all other violations alluded to in these findings, with the exception of the first-aid certification. On the subject of first-aid certification, Respondent was given through March 31, 1982, to verify certification. All corrections which were made related to allegations spoken to in the administrative complaint and reported in these facts date from March 31, 1982, and notification of those corrections in writing was received by Petitioner on April 5, 1982. The statement of corrections was reported on the deficiencies and corrections form mailed on January 29, 1982. Corrections were not verified by Petitioner. See Respondent's Exhibit No. 4. The corrections were made subsequent to an exit conference on January 25, 1982, held between Crippen and Lynn Costner in Respondent's Ormond Beach Office in which Costner was made aware of the related problems. With the exception of the matter related to first-aid, the written notification of corrections was not timely. By the letter of transmittal of the statement of deficiencies, Carter had advised Respondent that the failure to submit the plan of corrections within the time specified would lead to a finding of noncompliance by Respondent and the possibility of administrative fine. On March 5, 1982, not having heard from Respondent on the topic of the March 1, 1982, deadline for certain corrections, Carter again wrote the Costners, as owners of Lynn's Care Center at Garden Avenue, requesting that the response by statement of corrections be made no later than March 18, 1982. See Petitioner's Exhibit No. 2, which is a copy of the Carter correspondence. There being no reply to the March 5, 1982 correspondence, an administrative complaint letter was forwarded to Respondent, in the person of the Costners, Lynn's Care Center, at 1562 Garden Avenue, Holly Hill, Florida. This item was sent certified mail, return receipt requested. It set forth violations related to the deficiencies which have been discussed in this Recommended Order. The complaint was received by an employee of Respondent on April 2, 1982. See Petitioner's Exhibit No. 3 Respondent disputed the factual allegations in the complaint and a Subsection 120.57(1), Florida Statutes, hearing was conducted to resolve the dispute. On March 26, 1982, a second administrative complaint letter was served on the Costners reference a resident in their facility at 1529 Ridge Avenue, Holly Hill, Florida. That complaint was received on April 2, 1982, as shown by the certified mail return receipt request form. The administrative complaint and certified mail return receipt docket may be found as Petitioner's Exhibit No. 10, admitted into evidence, a copy of the complaint and receipt item. The complaint letter charged that Ronny Costner had acted as the legal guardian of Margaret Wells, a resident in the Ridge Avenue facility, and in doing so violated Chapter 400, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. On January 19, 1982, letters of guardianship of the property of Margaret Wells had been presented to Ronny Costner, through action in the Circuit Court in and for Volusia County, Florida. See Petitioner's Exhibit No. 4, a copy of the order issuing letters of guardianship. On March 8, 1982, Charles Carter wrote to inquire of Ronny Costner on the subject of whether Costner was indeed the legal guardian of the property and suggested the impropriety of such guardianship. See Petitioner's Exhibit No. 9, which is a copy of the Carter correspondence. Resident Wells had been admitted to the Ridge Avenue facility upon referral by Dr. John Hall, D.O. At the time of admission, the Costners were unable to find family to serve as Wells' guardian. Wells was suffering from Organic Brain Syndrome. Following examination by two physicians and with the assistance of Patty Butcka, an Adult Caseworker with Petitioner, and her husband, serving as legal counsel, petition was made leading to the guardianship appointment of Ronny Costner for the benefit of Wells. During the time that he served as legal guardian he received no compensation. The guardianship of Wells was in view of the fact that no close relatives resided in the area where Wells was living. At the guardianship hearing no family member appeared or objected to the appointment of Costner as guardian. Following receipt of the March 8, 1982, letter from Carter, Costner employed counsel and petitioned the court to remove him as guardian for Margaret Wells, in view of the provision of Chapter 400, Florida Statutes, which would not allow Costner to act as guardian of a resident in his Adult Congregate Living Facility. An order was entered removing Costner as Wells' guardian and Ronny Costner no longer served in that capacity at the time of the final hearing in this cause.
The Issue The primary issue in this case is whether Respondent, a licensed group home operator, violated several statutes and rules governing such homes and their staffs, with most of the alleged offenses occurring, Petitioner charges, in connection with the accidental death of a resident. If Respondent is found guilty of any disciplinable offenses, then it will be necessary to determine the appropriate penalties for such violation(s).
Findings Of Fact At all times relevant to this action, Respondent Daniel Madistin LLC #1 ("DM1") held a Certificate of License, numbered 091867, which authorized DM1 to operate a group home for the developmentally disabled in West Palm Beach, Florida, for the one-year period from April 1, 2014, through March 31, 2015. DM1 had been licensed as a group home since 2009. DM1's facility (the "Home") could house up to six residents at a time. As a group home licensee, DM1 falls under the regulatory jurisdiction of Petitioner Agency for Persons with Disabilities ("APD"), which issued DM1's initial and annual renewal licenses and periodically inspected the Home. One of the Home's longtime residents was a young man named V.H.-D. This wheelchair-bound, nonverbal resident suffered from a number of medical conditions, including severe cerebral palsy, as a result of which he was unable to care for himself. The Home's staff, therefore, were required, among other things, to feed V.H.-D., whose difficulty swallowing solid foods had caused him to be placed, on doctor's orders, on a diet of puree as a precaution against choking. (V.H.-D.'s family had refused to consent to the placement of a feeding tube.) On the morning of Sunday, October 19, 2014, an employee of DM1, Pharah Murat, fed V.H.-D. his breakfast, as she had done many times since starting to work in the Home in June of 2014. Because V.H.-D. could not talk, he generally manifested satiety by regurgitating food and expelling it from his mouth, at which point the caregiver would clean him up. So, this day, when V.H.-D. began expelling food, Ms. Murat stopped feeding him and wiped his mouth, per the routine. The situation was not routine, however, as Ms. Murat soon realized. V.H.-D. became pale and nonresponsive and looked unwell. Concerned, Ms. Murat immediately called her supervisor, Daniel Madistin, the eponymous principal of DM1. Upon hearing Ms. Murat's description of V.H.-D.'s condition, Mr. Madistin, who was at church with his wife, ended the call and promptly dialed 911. Having thus summoned emergency medical services and law enforcement, Mr. Madistin rushed to the Home. Meantime, Ms. Murat and a fellow employee, Marie Cadet, attended to V.H.-D. as they awaited the arrival of the paramedics. The evidence, which is in conflict, persuades the undersigned to find that, more likely than not, Ms. Murat placed V.H.-D. on the floor and performed cardiopulmonary resuscitation, or tried to, although to what avail cannot be determined. Afterwards, she and Ms. Cadet returned V.H.-D. to his wheelchair and moved him from the dining room to the front door, so that the paramedics would be able to work on him without delay once they appeared, which they did within a matter of minutes. V.H.-D. was removed from the Home and taken by ambulance to the hospital, where he died from asphyxiation due to pulmonary aspiration of food secondary to cerebral palsy. APD contends that V.H.-D. was the victim of "neglect" because (a) Ms. Murat called Mr. Madistin, instead of 911, and (b) the staff failed to (i) recognize that V.H.-D was choking and (ii) handle an emergency situation promptly and intelligently. While there is no dispute that Ms. Murat called Mr. Madistin, there is no debate that she did so immediately upon realizing that V.H.-D. might be in distress, which she observed very quickly. The evidence does not establish whether or not Ms. Murat realized that V.H.-D. was choking, but it does clearly prove that she not only realized something was wrong, but also acted upon that recognition without delay. APD insinuates that by not calling 911 first, Ms. Murat increased the response time of the EMTs, to the detriment of V.H.-D. There is, however, no persuasive evidence that Ms. Murat's actions decreased the likelihood of V.H.-D.'s survival, nor is that a reasonable inference. To the contrary, it is more reasonable to infer, although not necessary to find, that Ms. Murat expedited the delivery of emergency medical services because she could converse in her primary language with Mr. Madistin, whose first language, too, is Creole, enabling the latter, who is fluent in English, to relay the relevant information efficiently to the 911 dispatcher. In addition, it should be mentioned that DM1's policy directed employees to call 911 in an emergency. So, even if Ms. Murat's failure to call 911 first amounted to neglect in this instance, which it did not, there is no basis in the evidence for holding the licensee responsible, for there is no evidence suggesting that DM1 knew or should have known that Ms. Murat would act as she did in a crisis. In any event, the evidence shows, and the undersigned finds, that Ms. Murat and Ms. Cadet acted with reasonable skill and efficiency in this emergency. In making this finding, the undersigned is mindful that direct care staff are not medical providers. Indeed, at the time DM1 hired Ms. Murat, a caregiver needed only an eighth-grade education to meet the minimum academic requirements,1/ and even under the current rule a high school diploma or its equivalent suffices.2/ The point is that it is unreasonable to expect a direct service provider in a group home, when responding to a medical emergency, to meet the standard of care applicable to a doctor, nurse, or EMT. No persuasive evidence in the instant record establishes the appropriate standard of care for direct service providers, but the undersigned is nevertheless able to determine, based on the totality of the circumstances, that the performance of DM1's staff, while probably falling short of heroic, was at least reasonable, and certainly not neglectful. After the EMTs had left for the hospital, Palm Beach County Sheriff's Office ("PBSO") deputies stayed behind at the Home to investigate. One of the officers tried to interview Ms. Murat, but she was reluctant to speak. Ms. Murat and Ms. Cadet are Haitian immigrants whose native tongue is Creole, and once the officers realized this, they called for the assistance of Deputy Vessage, a bilingual PBSO deputy who often serves as a translator in such instances. Deputy Vassage responded to this request and questioned the women in Creole, without incident. APD has alleged that Ms. Murat and Ms. Cadet were not fluent speakers of English and thus were incapable of communicating effectively in the official language of the state of Florida.3/ This allegation was not proved. That Ms. Murat insisted upon using her primary language when speaking with law enforcement officers, who were investigating a fatal event that had just recently occurred in her presence, shows good judgment, not a lack of communication skills. At any rate, the evidence persuades the undersigned to find that both women likely were able to speak English with sufficient proficiency to make themselves understood in ordinary circumstances. More important, however, as will be discussed below, the law does not require that direct service providers such as Ms. Murat and Ms. Cadet be capable of communicating effectively in English, but rather that they be capable of communicating effectively. Needless to say, speaking in English is not the only way to communicate effectively; nor, for that matter, is talking necessary for effective communication. APD investigated the circumstances surrounding the death of V.H.-D., and in so doing reviewed DM1's business records, including the personnel file for Ms. Murat. APD claims that DM1 failed to maintain written evidence of Ms. Murat's qualifications as required by Florida Administrative Code Rule 65G-2.012(5)(b)(1978). This rule was substantially amended in 2014, however, and the recordkeeping requirement was repealed, effective July 1, 2014. See Fla. Admin. Code R. 65G- 2.012 (2014). There is no persuasive evidence in this record to support a finding that DM1 failed to comply with the former version of rule 65G-2.012 while it was in effect.4/ It is undisputed that DM1 did not terminate Ms. Murat's employment, or otherwise discipline her, as a result of V.H.-D.'s death. On January 16, 2015, an APD employee named Sabah Bissainthe made an unscheduled visit to the Home to conduct an inspection. Upon her arrival, she encountered Sinclair Concin, who worked for DM1. Mr. Concin, who was not expecting visitors, called Mrs. Naomi Madistin for guidance when he realized that Ms. Bissainthe was a state employee performing official business. Mr. Concin put Ms. Bissainthe on the phone with Mrs. Madistin, and the two made arrangements for Mrs. Madistin to meet Ms. Bissainthe at the Home as soon as Mrs. Madistin could get there, which she did within an hour. Mrs. Madistin cooperated fully with Ms. Bissainthe. Ms. Bissainthe was not refused entry to the Home or forbidden from inspecting any part of the facility, contrary to APD's allegations. Mr. Concin's primary language is Creole, which Ms. Bissainthe does not speak. APD alleged that Mr. Concin does not speak English, but the evidence fails to prove that charge, which would not, at any rate, be a disciplinable offense, without more. APD further asserted that Mr. Concin is unable to communicate effectively because he did not converse in English with Ms. Bissainthe. The evidence shows, however, that Mr. Concin and Ms. Bissainthe did communicate effectively, notwithstanding that each spoke a different primary language, because Mr. Concin proved capable, in fact, of accomplishing the task when the circumstances required that he accommodate an APD investigator who had appeared unannounced at the doorstep of the Home. On February 18, 2015, an investigator from the Attorney General's office, Paul Valerio, paid an unannounced visit to the Home in connection with a matter unrelated to V.H.-D.'s death. Neither Mr. nor Mrs. Madistin was on-site at the time, so Mr. Valerio called Mr. Madistin to let him know that an official investigation was under way. The two men agreed that Mr. Valerio would meet with Mrs. Madistin at the Home the next day, and that meeting took place as planned. Mrs. Madistin fully cooperated with Mr. Valerio, who completed his investigation without difficulty. The evidence does not establish that Mr. or Mrs. Madistin was unavailable or uncooperative, as APD charged. Ultimate Factual Determinations Neither Ms. Murat nor Ms. Cadet abused, neglected, exploited, or harmed V.H.-D., who received prompt and appropriate medical treatment on the day he died. Moreover, Ms. Murat and Ms. Cadet were mentally competent to perform their duties as direct service providers. The evidence, therefore, does not establish the violations of sections 393.13(3)(a), 393.13(3)(g), and 393.13(4)(c), Florida Statutes; and Florida Administrative Code Rules 65G-2.008(1)(h) and 65G-2.009(1)(d) set forth in Count I of the Administrative Complaint. The evidence failed to establish that Ms. Murat and Ms. Cadet, or either of them, were (i) incapable of demonstrating effective communication or (ii) not mentally competent to perform their jobs as direct service providers. Thus, the violations of rules 65G-2.008(1)(g) and 65G- 2.008(1)(h) alleged in Count II were not proved. The charges brought in Count III of the Administrative Complaint are duplicative of the charges set forth in Count I and fail for the same reasons of fact. The charges in Count IV are based on allegations that DM1 failed to maintain adequate personnel records for Ms. Murat, in violation of outdated provisions Florida Administrative Code Rule 65G-2.012(5)(1978), which expired on July 1, 2014, when a new version of the rule took effect. The evidence failed to show that DM1 violated the former rule at any time during its existence. The charges brought in Count V of the Administrative Complaint are duplicative of the charges set forth in Count II and fail for the same reasons of fact. The allegations of Count VI largely overlap those of Counts I and III, with the additional allegation that DM1 failed to fire Ms. Murat or suspend her employment. While it is true that Ms. Murat was not punished as a result of V.H.-D.'s death, DM1's decision not to take such action does not constitute a disciplinable offense, and the remaining allegations of Count VI fail for the same reasons of fact that doom the charges set forth in Count I. The charges in Count VII are based on allegations that Sinclair Concin (i) was unable to communicate effectively with Sabah Bissainthe and (ii) refused to allow Ms. Bissainthe to enter the Home to conduct an investigation, thereby putting DM1 in violation of rules 65G-2.008(1)(g), 65G-2.008(1)(h), and 65G- 2.0032(3). The evidence showed, however, that Mr. Concin did communicate effectively with Ms. Bissainthe, and that he let her into the Home. Therefore, the charges were not proved. In Count VIII, APD charged DM1 with failure to have a facility operator (manager) on-site or on call at all times, in violation of rule 65G-2.012(1)(a). This charge was based on the allegation that when investigator Paul Valerio arrived at the Home for an unscheduled visit, neither Mr. Madistin nor his wife was in the residence. Mr. Valerio was able immediately to reach Mr. Madistin by phone, however, and make plans to meet with Mrs. Madistin the following day. Thus, the charge set forth in Count VIII was not proved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order finding that Daniel Madistin LLC #1 is not guilty of the offenses charged in the Amended Administrative Complaint. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 25th day of November, 2015.
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: 1, The Agency issued the Petitioner, an applicant for a change of ownership license for a home health agency, the attached Amended Notice of Intent to Deem Application Incomplete and Withdrawn From Further Review. (Ex. 1) The case was forwarded to the Presiding Officer for an informal hearing to be conducted pursuant to Section 120.57(2), Florida Statutes. 2. During the pendency of this proceeding, the Agency filed a Motion To Relinquish Jurisdiction As Moot And for Rendition of Final Order based on the license that is subject of the instant matter no existing due to the denial of the renewal of that license. The Presiding Officer entered a Recommended Order of Dismissal. (Ex. 2) The Agency adopts the findings of fact and conclusions of law set forth in the Recommended Order of Dismissal. Based upon the foregoing, it is ORDERED: 3. The request for hearing is DISMISSED. 4. The Amended Notice of Intent to Deem Application Incomplete and Withdrawn From Further Review is UPHELD. 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. Filed February 23, 2015 4:53 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this e4/ day of Cctobre 2 , 2014. 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 correct ¢ copy at this Final Order was served on the below-named persons by the method designated on this774"day of Bf 2014, Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones Facilities Intake Unit Health Care Clinic Unit Manager (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II, Esquire Warren J. Bird, Assistant General Counsel Presiding Officer Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Manuel R. Lopez, Esquire Manuel R. Lopez & Associates, P.A. 770 Ponce De Leon Boulevard Penthouse Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) Itis 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.
