Findings Of Fact During times material hereto, Respondent, Ray C. Dorman, is the owner and administrator of Scarlet Manor. Scarlet Manor is an adult congregate living facility at 13009 Lake Carl Drive in Hudson, Florida. The facility has a census of 40 beds and of that census, two residents are elderly patients and the remaining 38 residents are "hard core" mental patients who require intensive and specialized nursing care. Ray Dorman (Respondent) is named as the confirmed perpetrator of neglect (FPSS No. 90-091417) based on a finding that Respondent neglected a resident at the ACLF. A certified letter from Petitioner dated September 22, 1990, which was received by Respondent on September 27, 1990, advised Respondent that he could challenge the confirmed finding of neglect if he considered that the classification was inaccurate or that it should otherwise be amended or expunged. Although Petitioner maintains that Respondent failed to challenge the confirmed finding of neglect, Respondent and his wife, Winifred Dorman, credibly testified that on October 10, 1990, she accompanied Respondent to an HRS office in Clearwater to deliver a written request to challenge the finding of neglect. While the office which would have addressed Respondent's challenge (Mr. Morton's office) is situated in St. Petersburg, on that point, it appears that Respondent's wife was either unclear as to exactly where the Respondent's challenge to the confirmed classification was delivered and nothing more. Respondent's facility has been the subject of regular survey reports wherein it was determined that Respondent's facility was deficient in maintaining minimum licensure requirements based on inspection surveys dating back to September, 1989. Mrs. Diane Cruz, a human services surveyor specialist employed by Petitioner, was part of a three (3) member team of surveyors at Respondent's facility during late September, 1989. During the September, 1989 survey, it was determined that Respondent's facility was deficient in several areas including fiscal policies, facility records, client records, medication records, staffing, food service standards, maintenance and housekeeping standards, resident care, admission criteria and fire safety standards. In all of the cited areas, Respondent corrected the deficiencies and no cited deficiency was outstanding at the time of the hearing herein. Significantly, of the numerous deficiencies that Respondent was cited, only three of the deficiencies were repeat deficiencies during the annual 1990 annual survey. Respondent's facility is a fairly new and modern facility and Respondent prides himself in providing his residents the high degree of nursing services which the residents of his ACLF require. In this regard, in each instance wherein Respondent was cited for deficiencies, the matter was corrected by the time that the follow-up survey was conducted with only two exceptions. Regarding those exceptions, Respondent credibly testified that he had undertaken a good faith effort to correct the deficiency by the time of the follow-up survey. In any event, all of the cited deficiencies were corrected and Respondent has abided by the terms of any restrictions including the payment of any administrative fines which were imposed by Petitioner. Such conduct evidences that Respondent is conscientious in the operation of his adult congregate living facility and, to his credit, more than one of and Petitioner's witnesses testified that Respondent operates a good ACLF.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent a conditional license to operate Scarlet Manor as an adult congregate living facility. 1/ Afford Respondent an opportunity to challenge the confirmed classification naming him as the perpetrator in FPSS Report No. 90-091417 as soon as practical. DONE and ENTERED this 30th day of October, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1991.
Findings Of Fact At all times material to the allegations of this matter, Respondent was licensed to operate an assisted living facility at 817 Eleventh Street, West Palm Beach, Florida. The Department is the state agency charged with the responsibility of regulating, and assuring compliance with state laws governing, assisted living facilities. Joseph Narkier, a human services surveyor employed by AHCA, was assigned to perform an appraisal of the Respondent's facility in September, 1995. He visited the facility on September 27, 1995, along with Polly Weaver, chief of field operations. In accordance with his instructions, Mr. Narkier did not perform a full survey but only looked at certain items, "tags," which had historically been out of compliance at the facility. Based upon his review, Mr. Narkier found the following deficiencies at the Aries Retirement Living facility: Respondent failed to display its current license inside the facility as required by state standard A 003. This deficiency had been cited on an earlier survey, March 14, 1995. Fiscal records were not on the premises, thus Respondent could not identify income and expenses as required by state standard A 100. This deficiency had also been cited on March 14, 1995. Since fiscal records were not on the premises, it could not be determined that the facility was administered on a sound financial basis as required by state standard A 101. This deficiency had also been cited on March 14, 1995. The Respondent did not produce an accurate written admission and discharge record as required by state standard A 201. This deficiency had also been cited on March 14, 1995. The Respondent did not produce an executed contract for each resident dated at the time of admission as required by state standard A 300. There were three residents for whom no evidence of a contract, executed at admission, could be produced. This deficiency had also been cited on March 14, 1995. State standard A 301, which relates to the content of the resident contract, was also deficient. Since there were no contracts for three residents, the contract content did not exist. This deficiency had also been cited on March 14, 1995. The Respondent did not have medical records or other support documentation to show that one resident had had a medical examination either within sixty days prior to admission or within thirty days after admission to the facility. Such exams are required to verify the residents are free of signs and symptoms of any communicable disease which is likely to be transmitted to other residents and is required by state standard A 406. The Respondent also could not produce documentation regarding admissions criteria as required by state standard A 408. According to records for one resident, medications were to be administered by a licensed professional. Since records did not verify the medications were administered according to the physician's orders, state standard A 601 was not met. Electrical outlets in the kitchen were not maintained in a safe condition in violation of state standard A 901. Hot and cold water faucets were not identified by use of the "H" and "C" initials as required by state standard A 1023. The records needed to verify the facility was in compliance with the state standards were not made available to the surveyors prior to their departure from the facility. Moreover, fiscal records were not made available to Mr. Narkier at the follow-up review on November 21, 1995. The fiscal records were not available until a third survey date, February 13, 1996, the second follow-up date. Based upon the foregoing, at the time of the survey Respondent had at least six class III deficiencies. None of the excuses suggested by Respondent to explain the survey findings has been deemed credible. This Respondent has a history of deficient performance. Two prior contested administrative complaints resulted in findings of numerous violations. Those violations were fully addressed in DOAH Case Nos. 94-5078 and 94-6908. On April 5, 1995, a recommended order was entered in DOAH Case Nos. 94-5078 and 94-6908. That order was adopted and incorporated by reference in the final order entered by AHCA on May 15, 1995. The final order entered in DOAH Case Nos. 94-5078 and 94-6908 imposed an administrative fine in the amount of $8,000.00 which Respondent has not paid. In addition to this outstanding administrative fine, Respondent has a history of two other administrative actions which also resulted in administrative fines. In DOAH Case No. 92-2415, the parties entered into a stipulation wherein Respondent agreed to pay a fine in the amount of $1,125.00. The Respondent did not timely remit that administrative fine. The second administrative action also resulted in an administrative fine. That case was not referred to the Division of Administrative Hearings. The final order (AHCA Exhibit 4), entered on August 8, 1991, imposed an administrative fine in the amount of $750.00. Respondent eventually paid this fine on April 22, 1992. Respondent has consistently failed to honor the state standards set for this type facility.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing Case No. 95-0128 since the applicant has withdrawn the request to increase capacity of the ALF; denying the renewal of licensure sought in Case No. 95-0129; and imposing an administrative fine in the amount of $1,200.00 in Case No. 95-5678. DONE AND ENTERED this 30th day of September, 1996, 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 30th day of September, 1996. APPENDIX TO RECOMMENDED ORDER Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1, 3, 11, 12, 13, and 14 are accepted. With regard to paragraphs 2, and 4 through 10, such paragraphs reiterate findings of fact made in DOAH Case Nos. 94-5078 and 94-6908 which have been adopted by final order and are not at issue in this proceeding. As a matter of law, unless set aside such findings remain in effect. Paragraph 15 is rejected as hearsay. Notwithstanding that Respondent's proposed findings of fact failed to comply with Rule 60Q-2.031(3), Florida Administrative Code, and contained multiple facts per paragraph (some of which could not be accepted while others could), to the extent possible, the following rulings on the proposed findings of fact submitted by the Respondent are made: The first sentence of paragraph 1 is accepted; the remainder is rejected as irrelevant or inaccurate. An administrative proceeding related to two complaints against this Respondent which found numerous violations resulted in a final order being entered by the Department. With regard to paragraph 2, the last sentence is accepted; the remainder of the paragraph is rejected as irrelevant or inaccurate or procedural issues unrelated to this matter. Further, as to the unannounced survey conducted by Mr. Narkier, notice of an intended survey is not required as a matter of law. With regard to paragraph 3, it is accepted a current license was not displayed. Otherwise rejected as contrary to the weight of the credible evidence. Paragraph 4 is rejected as irrelevant or contrary to the weight of the credible evidence. The violation stems from the failure to display the current license. Paragraph 5 is rejected as mischaracterization of the testimony or contrary to the weight of the credible evidence. Paragraphs 6 through 8 are rejected as no record cited supported the findings or irrelevant or contrary to the weight of the evidence in its entirety. COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building 3 Tallahassee, Florida 32308-5403 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building 3 Tallahassee, Florida 32308-5403 Linda L. Parkinson, Esquire Agency for Health Care Administration Division of Health Quality Assurance 400 West Robinson Street, Suite S-309 Orlando, Florida 32801 Esther A. Zaretsky, Esquire 1655 Palm Beach Lakes Boulevard Forum III, Suite 900 West Palm Beach, Florida 33401
The Issue The issue presented here concerns the question of the entitlement of Petitioners to be granted a further license to own and operate an Adult Congregate Living Facility. Pursuant to Subsection 400.414(2)(b) Florida Statutes, Respondent has denied the relicensure of petitioners based upon the contention that the facility owner or operator "lacks the financial ability to provide continuing adequate care to residents." Respondent further relies on Rule 10A-5.21 Florida Administrative Code, for the licensure denial, claiming that evidence of issuance of bad checks or accumulation of delinquent bills constitutes prima facie evidence that the owners do not have the necessary financial ability to operate the facility. In particular, Respondent offered the following explanation of the license denial: Your credit history with the local credit bureau indicates long term delinquent accounts and civil judgments. During the period from January 4, 1982, until April 8, 1982, five (5) civil judgments were filed against you in the County Court of Citrus County. Copies of those actions (Aultman, Citrus Publishing, Allen, Schultz, Citrus Memorial) are enclosed. A report, a copy of which is attached, from the Citrus County Clerk of the Court indicates you have been convicted of worthless check charges. The Marion County Sheriff's Department has confirmed the existence of an outstanding warrant against you for worthless checks, a copy of which is attached. The Citrus County Sheriff's Department has levied against the real estate on which your facility is located, on instructions from a Judgment being issued out of the County Court of Pinellas County, Florida. You stated on the License Renewal Questionnaire that you owed no accounts which were over 60 days overdue. Your credit history, the levy against your property and a letter of 5/17/82 from the Citrus County Sheriff's office refute that claim. You stated on the License Renewal Questionnaire that you had had no checks in the last six (6) months returned for insufficient funds. Pending charges, set forth in the attached copy of warrant refute that claim.
Findings Of Fact Prior to April 7, 1982, the date that Respondent received the most current application for licensure as an Adult Congregate Living Facility, Petitioners had owned and operated such a facility in Inverness, Florida, under the business name Guiding Star. On that date, Respondent received the application for relicensure, a copy of which is Respondent's Exhibit 12, 2/ in the form as shown by that exhibit with the exception of the signatures found on the fourth, fifth and sixth pages. The application form indicated that Mrs. Wilder was the owner of the facility as had been reported in the past in other periods when the facility was licensed as an Adult Congregate Living Facility pursuant to Chapter 400, Florida Statutes. On the occasions prior to the April 7, 1982, request for relicensure, records of Respondent had shown Peggy Thornburg Wilder to be the owner and had also shown her to be the operator and administrator of the facility. In actuality, Peggy Thornburg Wilder had ownership interest in the facility, to include hiring practices; however, with the exception of twenty-three (23) days in August, 1981, Roy Wilder has been in charge of the day-to-day operations of the facility. (Peggy Thornburg Wilder, Petitioner, has been variously referred to for purposes of this hearing as Peggy Thornburg Wilder, Peggy A. Wilder, Peggy Ann Stone Wilder, Peggy Wilder, Peggy Ann Wilders and Peggy Thornburg.) On April 7, 1982, the date of receipt of the application, Roy Wilder and Peggy Thornburg Wilder were divorced. Nonetheless, with the exception of the twenty-three (23) days mentioned before, Roy Wilder had continued to live in the facility. On April 24, 1982, the Wilders were remarried. On April 29, 1982, an official with Respondent spoke to Mrs. Wilder and was told that Mr. Wilder was not in charge of the facility, notwithstanding his continued involvement as operator. As a result, the official believed Mrs. Wilder to be in charge of operations on the occasion of relicensure. On May 3, 1982, Mrs. Wilder told the official, a Karen Hubbell, that Mrs. Wilder had remarried her husband. During the pendency of the communications involving the application for the annual relicensure, it was discovered that the application signatures were missing and Hubbell requested that the application he signed in the appropriate places, which was subsequently accomplished as shown in Respondent's Exhibit 12. It was signed by Roy Wilder as operator and applicant. Mrs. Wilder did not sign as owner/applicant, and the form continued to reflect an application made in the name of Peggy Thornburg, as opposed to Peggy Thornburg Wilder. Respondent did not attempt to have Mrs. Wilder sign the application, and the application was processed with the name Peggy Thornburg being reflected as facility owner/operator/administrator in the body of the application form, and Roy Wilder being shown as the operator and applicant by signature. Nonetheless, it is evident, as it was in the past history of the facility, that Mrs. Wilder had ownership interest in the facility and Roy Wilder was operator of the facility. In deciding the question of relicensure under the April 7, 1982, application, Respondent focused its attention on the financial responsibility of Peggy Thornburg Wilder. In this process, the following items were discovered: A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, Civil Division, against Roy L. Wilder (also known as Roy Wilder) and Peggy A. Wilder in the amount of $786.56 plus $25.00 court costs. See Respondent's Exhibit 1. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, Civil Division, against Peggy Wilder d/b/a Guiding Star Nursing Home in the amount of $100.00 and $22.00 costs. See Respondent's Exhibit 2. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, Civil Division, against Peggy Wilder and Roy Wilder d/b/a Guiding Star ACLF Home, in the amount of $275.00. See Respondent's Exhibit 3. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, against Roy Wilder and Peggy Wilder in the amount of $61.95 and $15.00 costs. See Respondent's Exhibit 4. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, against Peggy Wilder in the amount of 44.50 and $21.00 costs. See Respondent's Exhibit 5. In the County Court of Citrus County, Florida, a plea by Peggy Wilder to the offense of obtaining property by means of a worthless check in the amount of $300 as nolo contendere to the offense charged, a finding of guilt and $115.00 costs in an action in which restitution was made. See Respondent's Exhibit 6. Reference Peggy Wilder in the County Court of Citrus County, Florida, a misdemeanor finding of violation of probation, a nolo contendere plea to that violation, a finding of guilt, a payment of $115.00 cost, a jail sentence of thirty (30) days. See Respondent's Exhibit 7. In County Court of Citrus County, Florida, misdemeanor worthless check charge in the amount of $168.29 against Peggy Wilder, a plea of nolo contendere to the offense charged, a finding of guilt, $115.00 cost, six months probation, special conditions of payment of $25.00 per month and an indication that restitution had been made. See Respondent's Exhibit 8. Copy of a Capias for the arrest of Peggy A. Wilder for two counts of worthless check Subsection 832.05(4), Florida Statutes, dating from April 1, 1982. Respondent's Exhibit 9. From the County Court, in and for Pinellas County, Florida, a notice of levy against Peggy Ann Stone Wilder, reference property in Citrus County, Florida, Lot 8, Block E of Highlands Trailer Park. See Respondent's Exhibit 10. Correspondence from the law firm of Jenkins, Brooks, Wharrier, Kaiser & Walters reference Item 10 instructing the Sheriff's office of Citrus, Florida, to withdraw the levy, in view of indication that Mrs. Wilder would make payments towards settlement of the matter. In view of the circumstances, that have been related above, on June 9, 1982, the application for relicensure of the Adult Congregate Living Facility known as Guiding Star was denied. 3/ Mrs. Wilder gave testimony in the course of the hearing. By way of explanation on the subject of her financial problems, she indicated that, following an October, 1981, notification of accusations which had been placed against Mr. and Mrs. Wilder, related to the then current license for the subject facility, there was a reduction of clients from twelve (12) in December, 1981; two (2) in July, 1982, and finally a closing of the facility in August, 1982. (A copy of the charges involved in DOAH Case No. 82-104 and the balance of the grounds for denial of license reapplication which have been withdrawn in the present action may be found as attachment "A" to this Recommended Order, to assist in understanding Mrs. Wilder's explanation.)
The Issue Whether the Respondent, Department of Children and Families (DCF), may impose a moratorium for new residents at The Haven Center, Inc., for those who are enrolled in the Developmental Services Home and Community-Based Services Waiver Program (DS Waiver).
Findings Of Fact The Respondent is the state agency charged with the responsibility of regulating residential facilities that provide DS waiver services. Sunrise Opportunities, Inc., Sunrise Communities, Inc., and The Haven Center, Inc., are members of the Sunrise group of providers that serve individuals with developmental disabilities. Sunrise Opportunities, Inc., is a charitable, tax-exempt entity that provides residential and day treatment services to individuals under the DS Waiver program. The Haven Center, Inc., owns seven homes located on 23+/- acres in Miami-Dade County, Florida. The homes located at The Haven Center, Inc., are operated by Sunrise Opportunities, Inc. Such homes have been monitored and reviewed by the DCF on numerous occasions. The reviews or inspections have never revealed a significant deficiency. Moreover, historically the DCF has determined that residents at The Haven Center, Inc., have received a high quality of care. For some unknown time the parties were aware of a need to move individuals residing at The Haven Center into community homes in the greater South Miami-Dade County area. Concurrently, it was planned that individuals in substandard housing would then be moved into The Haven Center. This "transition plan" as it is called in the record would be accomplished as improvements were completed to the Sunrise properties. That the parties anticipated the transition plan would be implemented as stated is undisputed. Because it believed the transition plan had been agreed upon and would be followed, Sunrise Opportunities, Inc., incurred a considerable debt and expended significant expenses to purchase and improve homes in the South Miami-Dade County area. Additionally, DS Waiver participants were moved from The Haven Center to the six-person homes in South Miami-Dade County. In fact, over fifty percent of The Haven Center residents have made the move. In contrast with the transition plan, only 12 individuals were allowed to move into The Haven Center. Instead, DCF notified the Petitioners of a moratorium prohibiting the placement of DS Waiver residents into The Haven Center. This moratorium, represented to be "temporary," is on-going and was unabated through the time of hearing. The moratorium prompted the instant administrative action. Upon notice of DCF's intention to impose a moratorium on The Haven Center, the Petitioners timely challenged such agency action. DCF based the moratorium upon an Order Approving Settlement Agreement entered in the case of Prado-Steiman v. Bush, Case No. 98-6496-CIV-FERGUSON, by United States District Judge Wilkie D. Ferguson, Jr. on August 8, 2001. The Petitioners had objected to the approval of the Settlement Agreement in Prado-Steiman but the court overruled the objectors finding they, as providers of services to the DS Waiver residents, did not have standing in the litigation. The Prado-Steiman case was initiated by a group of disabled individuals on behalf of the class of similarly situated persons who claimed the State of Florida had failed to meet its responsibility to such individuals under Federal law. Without detailing the case in its totality, it is sufficient for purposes of this case to find that the Prado-Steiman Settlement Agreement imposed specific criteria on the State of Florida which were to be met according to the prospective plan approved and adopted by the court. At the time the Prado-Steiman case was filed, The Haven Center was licensed as a residential habilitation center. After the Settlement Agreement was executed by the parties in Prado-Steiman, but before the court entered its Order Approving Settlement Agreement, the licensure status of The Haven Center changed. Effective June 1, 2001, The Haven Center became licensed as seven group homes together with a habilitation center. Pertinent to this case are specific provisions of the Prado-Steiman Settlement Agreement (Agreement). These provisions are set forth below. First, regarding group home placements, the Agreement provides that: The parties agree that they prefer that individuals who are enrolled in the Waiver [DS Waiver] live and receive services in smaller facilities. Consistent with this preference, the parties agree to the following: The Department [DCF] will target choice counseling to those individuals, [sic] enrolled on the Waiver who presently reside in residential habilitation centers (where more than 15 persons reside and receive services). The focus of this choice counseling will be to provide information about alternative residential placement options. The Department will begin this targeted choice counseling by December 1, 2000, and will substantially complete the choice counseling by December 1, 2001. * * * 4. The Department and the Agency [Agency for Health Care Administration] agree that, in the residential habilitation centers, if a vacancy occurs on or after the date this agreement is approved by the Court, the Department will not fill that vacancy with an individual enrolled on the Waiver. (Emphasis added) None of the individually licensed group homes at The Haven Center is authorized to house more than 15 persons. All of the group home licenses at The Haven Center were approved before the Prado-Steiman Court approved the Agreement. The Agreement also provides that the parties: . . . have agreed that the Court may retain jurisdiction of this litigation until December 31, 2001, at which time this case will be dismissed with prejudice. The Plaintiffs may seek to continue the jurisdiction of the Court and to pursue any of the relief requested in this lawsuit only if they can show material breach as evidenced by systemic deficiencies in the Defendants' implementation of the Plan of Compliance. In any motion to continue the jurisdiction of the Court, Plaintiffs must demonstrate that alleged breaches and any proposed cure were fully disclosed to the state defendants consistent with the "Notice and Cure" provisions set forth below in paragraphs 7-10 below, that the action requested by the plaintiffs is required by existing law, and the State Defendants have refused to take action required by law. Such relief may not be sought after the scheduled dismissal of the litigation. Absent the allegation of material breach in a pending motion, the Court will dismiss this lawsuit with prejudice on December 31, 2001. (Emphasis added) Also pertinent to this case, the Agreement provides: 19. The parties' breach, or alleged breach, of this Agreement (or of the terms contained herein) will not be used by any party as a basis for any further litigation. "Systemic problems or deficiencies" is defined by the Agreement to mean: problems or deficiencies which are common in the administration of the Waiver, inconsistent with the terms of this Stipulated Agreement, and in violation of federal law. Isolated instances of deficiencies or violations of federal law, without evidence of more pervasive conduct, are not "systemic" in nature. State otherwise, a problem or deficiency is systemic if it requires restructuring of the Florida Developmental Services Home and Community-Based Services Waiver program itself in order to comply with the provisions of federal law regarding the Waiver; but that it is not "systemic" if it only involves a substantive claim having to do with limited components of the program, and if the administrative process is capable of correcting the problem. After the Agreement was adopted the Respondent advised Petitioners to continue with the transition plan. On or about September 1, 2001, the Petitioners and the Respondent entered into contracts for the group homes operated at The Haven Center. Each home is properly licensed, has honored its contracts to provide services to disabled individuals, and has complied with state licensure laws. A licensed Residential Habilitation Center may not have a licensed capacity of less than nine. Advocacy issued a letter dated March 8, 2002, that alleged systemic problems constituting material breaches of the Agreement. Among the cited alleged deficiencies is the failure of the state to ensure . . . that locally-licensed providers receiving waiver funds for providing group- home services in fact are providing services in that setting rather than in institutional settings. Examples include: a) A former residential habilitation center known as Haven is now licensed as a group home in District 11 (Miami/Dade) and receives HCBS waiver funds. There is no evidence that The Haven Center is providing services in any setting other than as licensed by the Respondent. That is, there is no evidence it is not operating as individually licensed group homes. Further, Advocacy had actual knowledge of the instant administrative action. In short, it did not attempt to participate in the Petitioners' challenge to the moratorium. DCF has imposed a moratorium on no other licensed group home in the State of Florida. The group homes at The Haven Center are the sole targets for this administrative decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Children and Family Services, enter a Final Order lifting the moratorium on placements of DS Waiver participants at The Haven Center's group homes. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 3rd day of June, 2002. COPIES FURNISHED: Paul Flounlacker, 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 Sevices 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Veronica E. Donnelly, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger & Tetzeli, P.A. 2650 Southwest 27th Avenue, Second Floor Miami, Florida 33133
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about 1:00 p.m. on September 2, 1978, a Saturday, Deputy Reder from the Hillsborough County Sheriff's Office went to the "Sweet Magnolia Boarding Home," a licensed adult congregate living facility (ACLF) operated by the petitioner, as a result of a call from either the petitioner's daughter or a relative of one of the residents. Upon his arrival, Deputy Reder found four elderly boarders or residents, petitioner's, fifteen or sixteen year old daughter and her female friend of about the same age. The petitioner's daughter and the residents were upset, but none of the residents needed emergency medical assistance. The relatives of the residents and the respondent were notified that the four residents were without adult supervision, and the residents were removed from the facility that day. On the Monday preceding Saturday, September 2, 1978, petitioner received a telephone call informing her that her husband had had an accident in Detroit, Michigan and had injured his back. Petitioner left Tampa on that day and flew to Detroit. It was her testimony that she left Mary Ann Cowley, who had worked for her for about one year, in charge of the "Sweet Magnolia Boarding Home" while she was gone. She further testified that she left approximately $700.00 with her fifteen or sixteen year old daughter to pay the rent and buy food for the residents during her absence. When she returned to the facility late Saturday night on September 2, 1978, no one was there and many of her belongings were gone. Petitioner did not contact the respondent regarding this incident. Her husband was not hospitalized for his back injury. On or about September 22, 1978, an administrative complaint against petitioner was filed by the respondent seeking to revoke her ACLF license. Having failed to respond to the complaint, respondent, on October 18, 1978, entered a "Judgment of Revocation of License" by default. Said judgment found that petitioner voluntarily discontinued operation of the facility without providing advance notice to respondent and without surrendering her license, that she left residents boarded at the home without adult supervision while she left the state and that a deputy reported that there was no food in the premises on September 2, 1978, and that the residents had not been fed for two days. Deputy Reder did not check the premises for food and one of the boarder's daughter did not hear her mother complain of being hungry on the day she removed her from the petitioner's facility. Petitioner testified that she never received the administrative complaint or notice that her ACLF license had been revoked. Petitioner applied for another ACLF license in March of 1980. Before this was processed, and in April of 1980, she was hospitalized for two or three days for elbow surgery and left her husband in charge of the unlicensed facility. Her husband had never assumed this responsibility in the past. On Monday, April 14, 1980, petitioner's husband prepared a bath for one of the residents who was approximately eighty-nine years old and frail, helped her into the bathtub and then left the bathroom to complete some chores in the kitchen. While he was gone, this elderly resident drowned in the bathtub. The incident was described in the police report as an "accidental death" and no charges were brought against petitioner or her husband. Respondent was not notified of the drowning incident until several weeks later. During this same general time period, from March through early July, 1980, negotiations were had between petitioner and respondent regarding her March application for ACLF licensure. Respondent's Aging and Adult Services Program Office had many concerns regarding the issuance of a license to petitioner, including the prior incidents of lack of supervision, inappropriate placements and the drowning incident. Respondent did not feel that a legal basis existed for denial of petitioner's application for licensure, so they offered her a compromise. Petitioner was told that if she removed her present residents, respondent would issue her a license and she could start over with more appropriate residents or boarders. On June 25, 1980, petitioner notified respondent that it was her decision to discontinue her operation as a boarding home and not accept the license to operate as an ACLF. By letter dated June 26, 1980, respondent notified petitioner that she had thirty days to remove the residents from her facility and that legal action would be brought against her if she reopened another unlicensed facility in Hillsborough or Manatee Counties. By letter dated July 3, 1980, respondent again informed petitioner that her decision not to accept the license was considered as final and that a license could not be issued to her at that time. On February 3, 1981, at approximately 3:00 p.m., employees of the respondent made an unannounced visit to petitioner's unlicensed facility. They found that petitioner was not on the premises and that the only people there were petitioner's father, approximately 70 years of age, and two elderly residents. One of the residents was in a hospital bed and was being fed by means of a tube down her throat. Respondent's employees remained on the premises for about 30 minutes and petitioner did not appear during this time. During the time of the unannounced visit by respondent's employees, petitioner had gone to the store. It was her testimony, which was corroborated by her father, that she had asked another person to stay at the facility while she went to the store. That other person was not there when petitioner returned from the store. Betty P. Steiger, R.N., who specializes in geriatric nursing, observed the tube-fed resident in petitioner's facility on February 4, 1981. She was described as an elderly black woman who was incontinent, unable to ambulate, incoherent and a candidate for round-the-clock skilled nursing care. An ACLF was not an appropriate placement for this person. Feeding tubes should be changed only by a registered nurse or a physician and a suction machine should be available in case of aspiration. Ms. Steiger did not observe a suction machine on the petitioner's premises. This tube-fed resident had been living in petitioner's facility for four or five months and had been tube-fed since her arrival. Petitioner is a licensed practical nurse. In February of 1981, she had no other employees. Petitioner again applied for an ACLF license on March 5, 1981. By letter dated May 14, 1981, she was notified by the respondent's Aging and Adult Services Program Office that her application was being denied for the following reasons: You have exhibited a disregard for, and a failure to assume appropriate responsibility for, the welfare of residents under your care. This is evidenced by the following: On October 18, 1978, your license to operate "Sweet Magnolia Boarding Home", an adult congregate living facility, was formally revoked due to your having left the boarders at the facility without any adult supervision during or about September, 1978 while you left the state. When discovered on September 2, 1978, the residents had not been fed for two days and there was no food on the premises. In April, 1980, an elderly resident at your unlicensed facility at 822 Whatley Place, Tampa, Florida, drowned in the bathtub while not receiving proper supervision. On or about February 3, 1981, a resident at your home at 822 Whatley Place, Tampa, Florida, was discovered by the Department's employees to be bedridden and to be in need of full time skilled nursing care. Said resident was being fed through a tube and such condition, without appropriate full time skilled nursing care, materially affected the health, safety, and welfare of said resident in that had such resident regurgitated, this resident, being elderly and very debilitated, would have been unable to clear herself and would have "drowned" in her own bodily fluids. Your retention of this resident, without ap- propriate full time skilled nursing care, constituted a disregard for her welfare. On or about February 3, 1981, employees of the Department made an unannounced visit to your unlicensed facility and discovered that you were not present and that you had not provided for adequate supervision of the residents. Besides the residents, the only person present was your elderly father who, due to his age and physical condition, could not provide safe and adequate supervision to the residents. The actions referred to in paragraphs 1(a) through (d) constitute intentional and/or negligent acts which seriously affected the health, safety, and/or welfare of residents of your facility and constitute grounds to deny your application for a license pursuant to section 400.414(2)(a), Florida Statutes (1980). Your physical plant is short one toilet and one sink. According to Rule 10A-5.11(3)(a)1, Florida Administra- tive Code, there must be a bathroom exclusively for the use of the residents. Since you fail to meet the minimum standards for Adult Congregate Living Facilities, your license is being denied on that basis also. The parties stipulated that petitioner's physical plant was short one bathroom. It was agreed that if all other bases for denial of the license were found to be without merit; petitioner would have 60 days to install a bathroom and, if completed, respondent would issue petitioner a license.
Recommendation Based upon the above findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application for an adult congregate living facility license be DENIED. Respectfully submitted and entered this 10th day of November, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1981. COPIES FURNISHED: Robert A. Warner, Esquire Caltgirone & Warner, P.A. 238 East Davis Boulevard, Suite I Davis Island Tampa, Florida 33606 Janice Sortor, Esquire District VI Assistant Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Did Respondent, TALF, Inc., d/b/a The Inn at University Village (University Inn), violate requirements to demonstrate the financial ability to operate in accordance with statutes and rules? If so, what penalty should be imposed?
Findings Of Fact AHCA is the State regulatory authority responsible for licensure of assisted living facilities and enforcement of applicable state regulations, state statutes, and rules governing assisted living facilities pursuant to chapters 429, part I, and 408, part II, Florida Statutes, and Florida Administrative Code Chapters 58A-5 and 59A-35. At all times material to this proceeding, University Inn was a licensed assisted living facility providing services for a continuing care retirement community in Tampa, Florida, under the licensing authority of AHCA. University Inn was required to comply with AHCA’s applicable rules and statutes. University Inn conducts business at University Village, which is affiliated with Westport Holdings Tampa, LP (Westport). Westport holds a certificate from the Office of Insurance Regulation (OIR) to operate University Inn as part of a continuing care retirement community. As such, University Inn is also regulated by the OIR.2/ A continuing care retirement community allows its residents to transition from an independent living setting to care in an assisted living facility to care in a skilled nursing facility. University Inn is physically located on the second and third floors of a building which also houses a licensed nursing facility known as TR & SNF, doing business as The Nursing Center at University Village (Center). Westport is also affiliated with the Center. University Inn and the Center share common vendors, utilities, services and personnel. Sometime after February 13, 2015, AHCA became aware of an “Initial Order of Suspension” issued by the OIR to the Westport Holdings Tampa, LP, d/b/a University Village (University Village). University Village is part of the continuing care retirement community associated with University Inn and Center, located in Tampa, Florida.3/ In late February or early March, AHCA conducted a survey of the Center and found that certain vendors had not been paid appropriately. The Center and University Inn are intertwined and the financial health of one affects the other. If any of the services provided to the residents are disrupted, residents’ health, safety and welfare could be adversely affected. Based on concerns for the University Inn’s residents’ well-being, Ms. Avery authorized utilization of section 408.810(8), Florida Statutes, which authorized AHCA to demand University Inn to provide proof of its financial ability to operate. On April 22, 2015, AHCA issued a certified letter to University Inn asking it to provide proof of financial ability (PFA) to operate. The letter sought the PFA information within ten days of receipt of the request. The initial paragraphs set the tone of the request as follows: The Agency has received information concerning the financial status of your assisted living facility. It has come to our attention that the assisted living facility is in arrears in paying vendors for services and goods [sic] rendered. This is an indication that your ALF is experiencing financial instability and may be jeopardizing patient care. The agency is authorized by Florida Statutes and the Florida Administrative Code to require you to submit evidence of financial ability to continue operating. AHCA’s demand letter provided the following statute and rule provisions for University Inn to review: section 408.810(8) and 408.810(9), Florida Statutes (2014); and Florida Administrative Code Rule 59A-35.062(3) and (7). University Inn was directed to obtain the Assisted Living Facility Proof of Financial Ability to Operate AHCA Form 3100-0009 July 2009, from AHCA’s website, and in addition to that form, to provide “copies of your current operating account balance (30-day banking statement); any other lines of credit and any other evidence of available funds for your agency’s use; numbers of staff by professional discipline currently employed including contractors; proof of payment to staff and CONTRACTORS (current payroll records); and copies of invoices for all vendors providing goods and services in the last 12 months.” Mr. Bartle was aware of AHCA’s request for the PFA at or near the time the request was made. Mr. Bartle contacted Sue Benovich, a certified public accountant, and asked her to start preparing the PFA for University Inn. Mr. Bartle turned the PFA request over to Anna Small, an attorney representing TALF and TR & SNF. Mr. Bartle testified that he “reviewed notes along the way, e-mails and back and forth . . . between the parties” as the PFA was being prepared and was satisfied that the forms were being prepared. At some point after receipt of the letter, Ms. Small, on behalf of University Inn, asked AHCA for additional time in which to provide the information. AHCA set May 25, 2015, as the deadline for receipt of the PFA. University Inn did not submit the requested PFA by the revised (May) deadline. Mr. Bartle was aware that Ms. Small left her law practice at Allen Dell “right after the 4th of July [2015]” because Ms. Small sought Mr. Bartle’s permission to transfer “the case to” another law firm. Mr. Bartle confirmed that he reviewed a draft in July and “assumed it would have been sent to the Agency at some point by Ms. Small.” Mr. Bartle did not know the PFA was not submitted until “the provider was served the complaint.” On December 2, 2015, AHCA received University Inn’s completed Election of Rights (request for hearing) form with an Attachment A. Attachment A contained approximately 18 pages following a page titled: TALF, INC. D/B/A THE INN AT UNIVERSITY VILLAGE PROJECTED FINANCIAL STATEMENTS FOR THE YEARS ENDING JULY 31, 2016 AND 2017 Mr. West reviewed the PFA (Attachment A) submitted by University Inn. Mr. West was unable to provide a professional opinion on the financial stability of TALF because he was not given a complete picture of the financial position of TALF. In April 2015, AHCA performed several survey visits to University Inn. The surveys were conducted to ensure the health, safety, and well-being of University Inn’s residents, and did not cite any deficiencies. University Inn failed to comply with an authorized request to submit financial information to support its continued ability to operate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Agency for Health Care Administration enter a final order revoking the license of TALF, Inc., d/b/a The Inn at University Village. DONE AND ENTERED this 16th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 16th day of November, 2016.
