Conclusions any 212 Poe ap, AS 1g DOAH No. 12-2633 AHCA No. 2012003965 RENDITION NO.: AHCA-12- {tF 27S Ole DOAH No. 12-2865 AHCA No. 2012008077 License No. 11870 File No. 11967907 Provider Type: Assisted Living Facility DOAH No. 12-2866 AHCA No. 2012003189 THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: 1 The applicant’s fictitious names on the settlement agreement are reversed. 1 Filed December 7, 2012 4:54 PM Division of Administrative Hearings 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 Administrative Complaint and Notices of Intent to Deny and Election of Rights forms to the Provider. (Composite 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) 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Provider’s renewal application for Cooper’s Retirement Home and initial application for Cooper’s Residential Home are withdrawn without prejudice to the Provider reapplying for such licensure in the future. The corresponding Notices of Intent to Deny these applications are moot and are thus withdrawn. 6. In accordance with Florida law, the expiration date of the existing license for Cooper’s Retirement Home 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. 7. The Provider shall pay the Agency $2,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. 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 8. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. ORDERED in Tallahassee, Florida, on this (“4 day of Qeaertlee.. 52012.
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek 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 ofthis Final we was served on the below- named persons/entities by the method designated on this 6 day of , 2012. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Finance and Accounting Theresa DeCanio, Field Office Manager Revenue Management Unit Area 7 Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Edwin D. Selby, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration Harvey M. Alper, Esquire Post Office Box 162967 Altamonte Springs, Florida 32716-2967 (U.S. Mail) | Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic 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 issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's imposition of civil penalties upon Petitioner's license.
Findings Of Fact On October 26, 2000, Petitioner was notified by Respondent's representative that she was in violation of Section 402.302(7)(d), Florida Statutes, by "being over ratio" by having more than ten children in her care. Petitioner signed an acknowledgement of the notification. On October 30, 2000, Petitioner was formally notified by mail that she was over ratio. In the letter, Petitioner was notified that another violation would result in the imposition of an administrative fine. On July 16, 2002, Clark Henning, a day care licensing counselor for Respondent, made a routine inspection of Petitioner’s facility and determined that 13 children were present. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that she continued to be over ratio and that any future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and observed that 14 children were in the facility. In accordance with requirements of Section 402.302(7), Petitioner is licensed to provide care to children solely in her home. During the course of his July 16, 2002 inspection, Henning observed that Petitioner was providing day care services in an out-building unattached to her home. At that time, Petitioner signed an acknowledgement of notification that Petitioner was prohibited from rendering care in an out- building. On July 18, 2002, Henning made an unannounced inspection of Petitioner's facility and noted that day care services continued to be provided in the out-building. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that if she continued to render day care services in the out-building, future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and saw that the out-building was continuing to be used for day care. Section 402.302(3), Florida Statutes, requires that any person providing child care must first be properly background screened. On July 16, 2002, during his routine inspection of Petitioner’s facility, Henning observed an adult female, Molly Hilbert, providing care for the children. On July 16, 2002, Petitioner signed an acknowledgement of notification that Molly Hilbert had not been background screened. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that having Molly Hilbert in her employ without a background screening would, in the event of any future violations, result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. In the course of his August 22, 2002 unannounced inspection of Petitioner’s facility, Henning observed Hilbert working with three children.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a final order be entered imposing an administrative penalty of $100 upon Petitioner's license for each of the three violations alleged in the Administrative Complaint for a total of $300. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 21st day of January, 2003. COPIES FURNISHED: Edward T. Cox, Jr., Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Lillie Shells Shell's Family Day Care Home 9340 County Road 231 Wildwood, Florida 34785 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner's applications to renew licenses for two Residential Level II facilities in Davenport, Florida, should be denied and a $2,500.00 fine imposed for the reasons given in the Department of Children and Families' (Department) Amended Denial of Applications & Imposition of Fines issued on February 8, 2018.
Findings Of Fact Background The Department is charged with the responsibility of regulating the licensing and operation of residential treatment facilities pursuant to chapter 397, Florida Statutes (2017). Petitioner is a Delaware limited liability corporation authorized to conduct business in the State of Florida. Subject to the outcome of this proceeding, Petitioner is licensed to operate two Residential Level II facilities in Davenport under the name Cares Treatment. One facility is located at 146 Sunset View Drive (Case No. 18-0230), the other at 389 Sand Ridge Drive (Case No. 18-0234). The licenses were issued on December 15, 2016, and were to expire on December 14, 2017. Each license authorizes Petitioner to "provide substance abuse services for Adults and/or Children/Adolescents for the following component: Residential Level 2 (6 beds)."4/ Resp. Ex. 2. The Torres family home is not a licensed facility and services cannot be provided to residents who reside at that location. Petitioner is not licensed to provide services under the Partial Hospitalization Program (PHP), the Outpatient Program (OP), or the Intensive Outpatient Program (IOP).5/ These services require a separate license from the Department. In December 2017, Petitioner filed with the Department new applications to provide those services. However, the applications were denied and no appeal was taken. According to the renewal applications, Petitioner provides a "residential treatment facility for children and adolescents." Resp. Ex. 3. Each facility "is a free-standing residential facility which provides a structured living environment within a system of care approach for children, adolescents and adult[s] who have a primary diagnosis of mental illness or emotional disturbance and who may also have other disabilities." Id. Petitioner's facilities are a family-run business. Roberto Torres, Jr. (Mr. Torres), is the Chief Executive Officer and manager of the limited liability corporation; Cecilia Torres, his wife, is the Treasurer/Chief Financial Officer; Karla Torres, a daughter, is the Vice President/Chief Administrative Officer; Roberto Torres, III (the son), is the Secretary/Chief Information Officer; and Kristina Torres, a daughter, is the Ambassador/Chief Relationship Officer. Resp. Ex. 4. On November 27, 2017, Petitioner filed its applications for renewal of the two licenses. On December 1, 2017, the Department issued separate, but identical, letters denying both applications on the grounds they were not timely filed and they were incomplete. Resp. Ex. 5. On February 16, 2018, the Department was authorized to amend its letters of denial with a single amended denial document, which combined the original charges in the two letters into Counts I and II and added new Counts III, IV, and V. Resp. Ex. 1. The amended denial letter also seeks to impose a $2,500.00 administrative fine for violating various Class II rules. The specific rules are not identified in the original or amended charging documents, but the Department's PRO cites Florida Administrative Code Rule 65D- 30.003(1)(a) and "rules set forth in 65D-30" as the rules on which it relies. Because proper notice of the specific rules was not given, the rule violations have not been considered. The charges in the amended denial letter can be summarized as follows: Count I - The application for the facility at 146 Sunset View Drive was not timely filed and was incomplete in violation of sections 397.403 and 397.407(8). Count II - The application for the facility at 389 Sand Ridge Drive was not timely filed and was incomplete in violation of sections 397.403 and 397.407(8). Count III - In November 2016, O.G., a 16-year-old female who had been recently discharged from a Baker Act facility, was admitted for treatment of substance abuse and mental health issues. After residing a few months at the Sunset View location, she was moved to the Torres family home, an unlicensed facility, where she remained for one or two months. By providing services at that unlicensed location, Petitioner violated section 397.401(1). She was then moved to the Sand Ridge location for two or three months before being returned to the Torres family home. She continued to receive substance abuse treatment at the family home until her discharge two or three months later. This constitutes a second violation of the same statute. While under the care of Petitioner, O.G. was subjected to actions which resulted in verified abuse reports against Mr. Torres and his son and contributed to the delinquency and exploitation of a child. Such conduct constitutes a threat to the health or safety of O.G. in violation of section 397.415(1)(d). Count IV - On October 19, 2017, J.W., who transferred from a Baker Act facility, was accepted by Petitioner for care and to receive "partial hospitalization program" services, which Petitioner is not licensed to provide. This constitutes a violation of sections 397.401(1) and 397.415(1)(a)2.c. J.W. was later discharged in contravention of his wishes and desires, which resulted in him relapsing and again being Baker Acted. This conduct constitutes a threat to J.W.'s health or safety in violation of section 397.415(1)(d). Count V - On January 23, 2018, the Department attempted to conduct an onsite inspection at both licensed facilities to review J.W.'s files, but was denied access to the premises. Petitioner later failed to respond to a written request by the Department for records relating to J.W. and O.G. This conduct constitutes a violation of section 397.411. The charging document asserts the conduct in Count III violates four Class II rules (not otherwise identified), for which a $500.00 fine should be imposed for each violation; and the conduct described in Count IV violates "applicable" Class II rules (not otherwise identified), for which a single $500.00 penalty should be imposed. Rule 65D-30.003(1)(a), the only rule cited in the Department's PRO, requires in relevant part that "all substance abuse components" be provided "by persons or entities that are licensed by the department pursuant to Section 397.401, F. S." The Charges Counts I and II Section 397.407(8) provides that "the Department may deny a renewal application submitted fewer than 30 days before the license expires." For Petitioner to meet this deadline, license renewal applications were due on or before November 15, 2017. An application is not considered filed until an application with the signature of the chief executive officer is submitted by the applicant. Around 3:30 p.m. on November 27, 2017, Mr. Torres spoke by telephone with Ms. Harmon, the Department System of Care Coordinator, regarding three new licensure applications he was filing. During the conversation, he was reminded that renewal applications for his two existing licenses had not been filed. Mr. Torres responded that he "would have to get on that." Properly signed renewal applications were submitted electronically at 5:00 p.m. and 5:42 p.m. that afternoon. In his cross-examination, Mr. Torres attempted to establish that the Department's website, the Provider Licensing and Designation System (PLADS), was periodically inoperative, and this prevented him from filing his on-line applications in a timely manner. However, there is no credible evidence to support this claim. In fact, after Mr. Torres raised this issue early on in the case, Ms. Harmon reviewed the activity log of Mr. Torres' two on-line applications and found that he began the application process in late August or early September 2017, but did nothing further until he hit the submit button after speaking with her on November 27, 2017. Also, during this same period of time, the PLADS program (to which all applicants have access) indicated that the applications were in "Waiting Approval" status, which meant the applications were "in process" but had never been submitted. Therefore, the applications were not timely filed.6/ Section 397.403(1)(f) requires license applications to include, among other things, "proof of satisfactory fire, safety, and health inspections." Neither application filed on November 27, 2017, included an updated Treatment Resource Affidavit, a current Fire and Safety Inspection form, and a complete and current Health Facility and Food Inspection form. Therefore, the applications filed on November 27, 2017, were incomplete. Count III On November 17, 2016, O.G., then a 16-year-old female, was admitted for treatment at the facility. O.G. had a history of bi-polar episodes, depression, and drug abuse. Before seeking treatment at Petitioner's facility, she had been Baker Acted twice. After learning about Petitioner's facility through another provider, O.G.'s family placed her in the facility to address her substance abuse and behavior problems. Upon admission, a treatment plan was devised by a licensed mental health counselor (LMHC), with a target completion date of May 17, 2017. Resp. Ex. 10. The treatment plan listed four staff members overseeing her case: Karla Torres (case manager); the LMHC; and S.F. and K.V., two "caregivers" or interns. Id. O.G. was discharged from the facility nine months later on August 14, 2017. Petitioner was paid approximately $166,000.00 by O.G.'s parents for her nine-month stay. O.G. was initially placed in the facility located at 146 Sunset Drive, where she remained for approximately three months. She was then moved to the Torres family home at 2347 Victoria Drive in Davenport for two or three months. The Torres home is not a licensed facility. By housing her at an unlicensed location and providing services during that period of time, Petitioner violated section 397.401(1), which makes it unlawful to provide substance abuse services at an unlicensed location. O.G.'s parents were unaware that their daughter was residing in the unlicensed family home. After Mr. Torres and O.G. "got into an argument," she was moved to the facility at 389 Sands Drive for several months. She then returned to the Torres home, where she remained for two or three months until she was discharged. By housing her at an unlicensed location and providing substance abuse services, Petitioner violated section 397.401(1) a second time. During her stay at the Torres home, Mr. Torres discussed "sex" with O.G.; he told her that he cheated on his wife; and he complimented her "quite a few times" for having "a nice body." He also told her that "18" was a special age and if she were 18 years old, things would be different. He added that her parents were "too strict." These highly inappropriate comments were especially egregious in nature, given the fact that O.G. was a minor with mental health and substance abuse issues, and she was living in the licensee's family home. One photograph of O.G. taken in the home shows Mr. Torres standing in the background donned in his pajamas. Resp. Ex. 16. These actions constitute a violation of section 397.415(1)(d)2., which makes it unlawful to commit an intentional or negligent act materially affecting the health or safety of an individual receiving services from the provider. Mr. Torres occasionally escorted O.G. to two local bars (Miller's Ale House and Marrakesh Hooka Lounge) in Champions Gate. On one visit to Miller's Ale House in April or May 2017, he purchased her a Blue Moon beer, even though she was a minor and in a substance abuse program. She consumed the beer in his presence while the two sat at the bar. Although Mr. Torres attempted (through argument) to deny the incident, O.G. filmed the event on her cell phone. Resp. Ex. 13. This action by him also constitutes a violation of section 397.415(1)(d)2. Petitioner argues in its PRO that the whole incident was a fabrication and the result of a conspiracy by O.G.'s father, the Tampa Police Department, and Department counsel. The contention is rejected. When O.G. was discharged from the residential treatment facility in August 2017, Petitioner enrolled her in another program, IOP, which required her to periodically return to the facility on weekends for further treatment. Her first return visit was the weekend of August 26, 2017. During the weekend visit, the son gave her a cell phone. O.G.'s admission document for the IOP program indicated she would be given IOP services for 60 to 90 days, with a goal of her being substance free at the end of that period. Resp. Ex. 24. There is no record of her being discharged from the program. The Department argues in its PRO that by providing IOP services to O.G., Petitioner was providing a service beyond the scope of its license. However, this allegation was not included in the amended charging document and has not been considered. See, e.g., Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)(a licensee may not be disciplined for an offense not charged in the complaint). After being discharged from her original treatment plan on August 14, 2017, O.G. returned to her mother's home. Except for one weekend visit to Petitioner's facility for IOP services, she remained at home until September 16, 2017. That day, O.G. ran away from home with Preston, a resident she had met at Petitioner's facility. After leaving home, she went to Melbourne, and then to West Palm Beach. A Missing/Endangered Runaway Juvenile bulletin was posted by law enforcement on October 5, 2017. Resp. Ex. 11. During this period of time, Petitioner’s records show that O.G. was still enrolled in the unlicensed IOP program. Resp. Ex. 24. While in the West Palm Beach area, O.G. contacted the son on the cell phone he had given her and told him she had run away from home. She asked him to send her some money so that she could go to Tampa to work in a strip club. Because O.G. was not old enough to accept a wire money transfer, the son wired $600.00 to a friend of O.G., who gave her the money. Using the money provided by the son, O.G. traveled to Tampa and met the son on September 30, 2017. The two went to Todd Couples Superstore, where he purchased several adult entertainment outfits she could wear to audition for a job in a strip club. Resp. Ex. 12. He also purchased her various personal items at a Walgreens. The son then drove her to several clubs to audition for a job. After several auditions, she was hired by Scores Tampa, a local strip joint where "people take off their clothes for money." O.G., who was only 17 years old at the time, signed an employment contract on September 30, 2017, using a borrowed driver's license of S.F., a 21-year-old female. Resp. Ex. 15. S.F. was a former intern at Petitioner's facility and is listed as a member of the team staff on O.G.'s initial treatment plan. By that time, S.F. had left Petitioner's facility and moved back to Tampa. That same evening, O.G. began working in Scores Tampa. O.G. says she took off her clothes while performing. The son remained in the club while she worked. After she got off work at 2:00 a.m., he drove her to S.F.'s house. O.G. continued working at the club for the next few days. With the assistance of local law enforcement, O.G. returned to her mother's home on October 7, 2017. After she ran away from home, and even while working in the club, O.G. maintained contact with Mr. Torres through texts and Facetime and asked him not to report her whereabouts to anyone. Although O.G.'s mother spoke to Mr. Torres on several occasions after O.G. went missing in September 2017, neither Mr. Torres nor the son informed her of the daughter's whereabouts. On November 30, 2017, the Department received a report of alleged human trafficking and sexual exploitation of a child. The alleged perpetrator was the son, while the victim was identified as O.G. Because the son was an employee of Petitioner, an institutional investigation was conducted. The investigation was closed on December 26, 2017, with a confirmed report of Human Trafficking-Commercial Exploitation of a Child against the son. Resp. Ex. 17. During the investigation, Mr. Torres and members of his family declined to be interviewed or answer any questions. Instead, they referred all questions to their attorney. On February 6, 2018, the Department received another report of abuse involving Mr. Torres. The report alleged that in April or May 2017, Mr. Torres transported O.G. to a bar at Miller's Ale House in "Davenport" [sic] and purchased her a beer. After an institutional investigation, the file was closed on March 1, 2018, as verified for Substance Misuse – Alcohol against Mr. Torres. Resp. Ex. 18. See also Finding of Fact 18. Mr. Torres declined to participate in the investigation. By clear and convincing evidence, the Department established that the actions of Mr. Torres and his son presented a threat to the health or safety of O.G. in contravention of section 397.415(1)(d)2. Count IV J.W., who did not testify, is a 42-year-old male who was discharged from a hospital on October 9, 2017 (after being Baker Acted), and admitted to Petitioner's facility the same day to receive PHP services. He was diagnosed as having mental health and substance abuse issues and a history of suicidality. He voluntarily left the facility on November 9, 2017. In its PRO, Petitioner characterizes J.W. as "a disgruntled addict." While a resident at the facility, J.W. received a few video sessions with a Miami Springs psychiatrist, who was identified on the renewal applications as the facility medical director, and he was given online counseling sessions for two weeks by an LMHC, who resided in Palm Bay and worked as an independent contractor with the facility. Neither professional was told by Mr. Torres that Petitioner was not licensed to provide PHP services. By providing PHP services to J.W., Petitioner violated sections 397.401(1) and 397.415(1)(a)2.c. According to the LMHC, on October 24, 2017, she was directed by Mr. Torres, who is not a licensed clinician, to "discharge" J.W. from the PHP program and place him in a lower level of care, Sober Living. Resp. Ex. 25. This would still allow J.W. to remain a resident at the facility but not receive the PHP services. Although the charging document alleges that J.W. did not wish to be discharged from the PHP program, and this caused him to have a relapse in his condition and later Baker Acted again, there is no competent evidence to establish this string of events. Count V Section 397.411 requires all licensees to provide Department representatives access to their facilities and to allow the inspection of pertinent records. Based upon information from a provider in Jacksonville that Mr. Torres had requested its assistance in providing PHP services to J.W., the Department instituted an investigation of Petitioner. In January 2018, the Department attempted to conduct an onsite inspection of Petitioner's facilities and to review the files relating to J.W. The inspectors were denied entry. Thereafter, the Department sent a written request to Petitioner for the records of J.W. and O.G. No records were provided and Petitioner failed to respond to the request. These actions constituted a violation of section 397.411. At hearing, Mr. Torres contended (through argument) that because the Department had already taken preliminary action on December 1, 2017, to deny his applications, there was no requirement that he provide access to the facility or respond to written requests for records. This assertion has been rejected. See § 397.411(1)(c), Fla. Stat. (an application for licensure as a service provider constitutes full permission for an authorized agent of the department to enter and inspect at any time).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the applications for renewal of Petitioner's two licenses. An administrative fine should not be imposed. DONE AND ENTERED this 27th day of September, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 27th day of September, 2018.
Findings Of Fact The Agency issued one (1) Notice of Intent ,to Deny the renewal application of Petitioner, Vision Associates, Inc. d/b/a Bay Gardens Retirement Village (hereinafter "Petitioner" or "Facility"), an assisted living facility (License No. 7216). The Notice of Intent to Deny the renewal application dated 07/31/09 notified the Facility that the Agency intended to deny the Facility's renewal application based upon, inter alia, a demonstrated pattern of deficient performance and failure to meet minimum license requirements pursuant to Sections 408.815(1)(d) and 429.14, Florida Statutes. The Facility received a Notice of Intent to Deny its license renewal application. By filing its Election of Rights (hereafter "EOR") and electing Option 3, the Facility requested a formal hearing (Comp. Ex. 2). Filed March 31, 2010 12:26 PM Division of Administrative Hearings. The cause was properly referred to the Division of Administrative Hearings for proceedings according to law, See, Section 120.57(1), Florida Statutes (2009). By Order dated February 26, 2010, the Division of Administrative Hearings determined that no material issue of fact remained in dispute and relinquished jurisdiction to the Agency for Health Care Administration, a copy of which is attached hereto and incorporated herein (Ex. 3). The facts, as alleged and found, establish that the Facility: a). Has demonstrated a pattern of deficient performance, b). Has been cited for one (1) or more cited Class I deficiencies, three (3) or more cited Class II deficiencies, and/or five (5) or more cited class III deficiencies on a single survey which were not corrected within the times specified, c). Failed to meet the minimum license requirements of Chapter 429, Part I, or related rules, at the time of license renewal, and d). Has been found guilty of at least one (1) act constituting a ground upon which application for a license may be denied. The Agency action was the denial of the Facility's license renewal application.
Conclusions Having reviewed the Notice of Intent to Deny dated July 31, 2009, attached hereto and incorporated herein (Comp. Ex. 1), and all other matters of record, the Agency for Health Care Administration (hereinafter "Agency") finds and concludes as follows:
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered which denies the license renewal for Morris Manor to operate as an Assisted Living Facility. DONE AND ENTERED this 19th day of May, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 19th day of May, 1999. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway 220 Tampa, Florida 33614 Wilhelmena Morris, Administrator Morris Manor Post Office box 309 Ocklawaha, Florida 32179 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact On January 24, 1994, the Respondent, Aries Retirement Living, which is owned by W.T. Holding, Inc., filed an application for renewal of its license as an ACLF. The Aries application, completed by its administrator Patricia Holland, provided the following information: The mailing address for the administrator was completed as: 817 11th Street, West Palm Beach, Florida 33401. The mailing address for the corporate or limited partnership-corporate president or partner was: 817 11th Street, West Palm Beach, Florida 33401. At the time of the surveys (inspections) pertinent to these cases, Respondent had a conditional license to operate an ACLF for eight residents. The surveys were performed by two Agency employees who divided the review into two areas of expertise. Irwin Fried, a fire protection specialist, surveyed the Aries property for fire safety and physical plant regulation compliance. Meryl McDonald, a human services surveyor specialist, reviewed the property for all other areas of compliance. On March 14, 1994, and subsequently on June 1, 1994 and August 26, 1994, the financial records for the Aries facility were not available for review. Ms. McDonald requested the documents on each visit, but they were not provided by Aries until January 19, 1995. As a result, the Agency was unable to determine whether the facility was administered on a sound financial basis consistent with good business practice at the times of the surveys. Ms. McDonald also noted on the survey beginning March 14, 1994, that personal funds from one resident's account were used to purchase plastic gloves without the resident's consent. On December 7, 1994, the resident signed a consent for this appropriation of her funds. Despite requests from Ms. McDonald, Aries could not produce a certificate of liability insurance for review during the surveys. In this instance, Ms. McDonald asked Mr. Davis for the certificate but Aries did not present the information until January 19, 1995. For the survey and follow-ups conducted on March 14, 1994, June 1, 1994, and August 26, 1994, the last Health Quality Assurance inspection report was not posted in the Aries facility. At the times of the survey and follow-ups, Aries did not produce proof of radon testing. According to Mr. Davis, the radon testing was completed in October, 1994 (again several months after the request was made). Ms. McDonald brought several inaccuracies or deficiencies in the admission and discharge register maintained by Aries to their attention at the March 14, 1994 survey. Such inaccuracies included that seven residents were living in the facility but only three names were noted on the admission register. Further, none of other residents allegedly living in building two were listed. These inaccuracies continued uncorrected at the June 1, 1994, and August 26, 1994 follow-up visits. At the time of the March 14, 1994, survey and the follow-ups of June 1, 1994, and August 26, 1994, Aries could not establish that its Disaster Preparedness Plan had been reviewed by the Palm Beach County Disaster Preparedness Authority. According to Mr. Davis, this requirement was satisfied by the time of hearing. The Aries contract did not clearly provide a 30 days prior written notice of rate increase at the times of the survey or follow-ups. The statement disclosing Aries' medication storage policy was not given to each resident on admission. This deficiency was cited at the March 14, 1994, survey and remained uncorrected on June 1, 1994 and August 26, 1994. However, as of December 8, 1994, Aries corrected this deficiency. Aries could not produce the required demographic data for all residents, and military service information was not included for any resident. This deficiency was cited at the March 14, 1994, survey and remained uncorrected on June 1, 1994 and August 26, 1994. At the time of the March 14, 1994, survey, it was noted that a nurse was transferring insulin from labeled containers to syringes for one resident's later use. This procedure, although cited by Ms. McDonald, continued uncorrected on the June 1, 1994, follow-up. Later, the resident changed to tablets, and the deficiency was changed to corrected as of the August 26, 1994, follow-up. Also with regard to medications, Aries could produce no records or documentation to show how medications were disposed of when the resident left the facility. This lack of documentation was noted on March 14, 1994, and remained uncorrected on June 1, 1994 and August 26, 1994. When Ms. McDonald surveyed the food supply, she noted that a one week supply of non-perishable food, based on the number of weekly meals the facility had contracted to serve, was not on hand. Nor was there enough water in storage for emergencies. Food supplies on hand lacked sufficient protein. This shortage was noted on March 14, 1994, and remained uncorrected on June 1, 1994 and August 26, 1994. Mr. Davis removed dented and bulging cans after the March 14, 1994 survey. Mr. Fried surveyed the Aries property on March 14, 1994, and found the following conditions: Hot water temperature for resident use was recorded at 126 degrees F at 12:30 p.m. on the dates of the survey. On January 19, 1995, this was still uncorrected. The structure had openings in the walls which were uncorrected on June 8, 1994. The facility had exposed water pipes and exposed electrical wires or missing plates which were uncorrected on June 8, 1994. The fire and smoke detector system did not interconnect the front and back buildings to warn staff of an emergency. This condition continued from April 11, 1994 through January 19, 1995. The doors to the sleeping rooms were not self closing and latching to reduce smoke circulation during an emergency. This condition was noted during the April 11, 1994, survey and was uncorrected on June 8, 1994. The Aries facility did not have a secondary means of egress from the upstairs of the front building. This condition was noted during the April 11, 1994, survey and was uncorrected on June 8, 1994. The exit lights were not illuminated in the front Aries building and two locks were noted on the upstairs front exit and downstairs rear exit. This condition was noted during the June 8, 1994, visit and remained uncorrected for the August 25, 1994, follow-up. Ms. Holland, the administrator for Aries at all times material to these cases, was not at the property during any of the surveys or follow-up visits. Ms. Holland is employed full-time at a hospital and spends irregular hours at the Aries facility. Mr. Davis was present for the March, 1994, survey but was not present for the subsequent visits. Aries employees attempted to reach Mr. Davis when survey or follow-up visits were made to the facility. At the times of the visits, both Ms. McDonald and Mr. Fried requested to speak to the Aries staff member in charge. All deficiencies noted were itemized to Aries personnel in discussion at the times of the surveys. Additionally, written notice of the alleged deficiencies was provided to Aries at its address of record. Respondent's allegations of poor mail delivery or lack of notice have not been deemed credible. The Respondent did not claim it had not received the deficiency notices until December 7, 1994. During the June and August, 1994, follow-up surveys, Aries did not claim it had not received the deficiency statement from the prior survey or follow-up. All deficiencies alleged in these cases are Class III violations.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration enter a final order imposing an administrative fine in the amount of $8000.00. DONE AND RECOMMENDED this 5th day of April, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 5th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 94-5078 and 94-6908 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 13 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: The Respondent's "Proposed Order" was not in a format to readily review for proposed findings of fact. Paragraph 1 states: Petitioner has failed to meet its burden pursuant to Florida Statutes Section 400.419(1)(a) of communicating a recommended corrective action and informing the facility of the deficiencies prior to imposing violations and penalties. Such statement is rejected as a conclusion of law which is not established by this record. Paragraphs 1a. through 1e. are rejected as irrelevant, contrary to the weight of credible evidence, or argument. Paragraph 1f. is a restatement of law, not a fact and is rejected as such. Paragraph 2 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 3 is rejected as argument or conclusion of law not applicable to this case. Paragraphs 4a. through 4u., except as specifically found above, are rejected as contrary to the weight of the credible evidence or irrelevant. Paragraph 5 is rejected as argument or conclusion of law not applicable to this case. COPIES FURNISHED: Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Esther Zaretsky 1655 Palm Beach Lakes Boulevard Forum III, Suite 900 West Palm Beach, Florida 33401 Linda L. Parkinson Agency for Health Care Administration Division of Health Quality Assurance 400 W. Robinson Street, Suite S-309 Orlando, Florida 32801
