The Issue At issue in this proceeding is whether Petitioner's application for a license to operate an Assisted Living Facility should be approved.
Findings Of Fact Petitioner's application and the Agency's denial On or about September 5, 1997, Petitioner, Gwendolyn Whittingham, submitted an application to Respondent, Agency for Health Care Administration (Agency), for initial licensure of a 4-bed Assisted Living Facility (ALF) to be known as Gwen's Heavenly Resort, and to be located at 15560 Northwest 26th Avenue, Opa Locka, Florida. Respondent was named as the owner and proposed administrator. Pertinent to this case, item VIIA on the application, entitled "Criminal Abuse History," required that Petitioner answer yes or no to the following question by checking the appropriate box: Has any owner, administrator, partner, or director ever been arrested for -- or convicted of-- a crime involving injury to persons, or involving financial or business management (e.g. assault, battery, embezzlement, or fraud)? The question further provided: If the answer . . . is "YES" attach a separate letter of explanation stating the charges, dates of arrest/conviction, and disposition for each incident. Check will be made for each applicant. Petitioner did not check either the "YES" box or the "NO" box, but wrote in the words "No Injury." Also pertinent to this case, item VIII of the application provided the following "application checklist" for an initial licensure application: Are all sections on this application completed? Is the application signed & notarized below? Completed Attachment A - Statement of Operations? Completed Attachment B - Statement of Assets & Liabilities? Completed Attachment C - Zoning Certificate? Have you attached Proof of Business Liability Insurance? Have you submitted the correct fee? The check list included the following cautionary statement: Please note that your application may be denied for failure to submit the documentation required above. Item IX of the application called for the signature of the owner or administrator, and that the application be notarized. The following affirmation was required: The undersigned hereby swears (or affirms) that the statements in this application, and its attachments, are true and correct and that to the best of my knowledge and belief all persons in ownership or employment are of good moral character, and that the ownership possesses sufficient funds to operate this facility in a satisfactory manner. Apart from not responding directly to item VIIA, the application submitted by Petitioner (Respondent's Exhibit 7) was not signed and notarized; did not include a "Statement of Operations"; did not include a "Statement of Assets & Liabilities"; did not include a "Zoning Certificate" verified by the local government authority; and did not include "Proof of Business Liability Insurance." Moreover, Petitioner did not sign the application form for the "Florida Protective Services System Background Check" she submitted, and the fee she submitted ($138.00) was, as discussed infra, not adequate. By letter of September 16, 1997, the Agency advised Petitioner that it had received her application and the fee she had tendered. The letter further advised Petitioner that: The application submitted was found to be incomplete. The information or documentation requested below must be received back in this office by 10/07/97 or your application will be denied. APPLICATION The application form you submitted has not been in use by this Agency in over six years. This form is not acceptable. A current application form is enclosed. Please complete the current application form and have it notarized. FEE The fee submitted is incorrect because you submitted an outdated application package. The correct fee cannot be determined until you submit a current application form. The current application fee is $253 plus $33 for each private pay bed. If a bed is to be designated for a recipient of OSS services, there is no per bed fee. Please refigure the fee due and submit the remaining balance due. INSURANCE You must submit proof of current business liability insurance coverage for the operation of the Assisted Living Facility. A copy of a certificate of insurance form or a copy of the policy declarations page that includes the facility name, street address, type of facility, type of insurance issued, and the beginning and ending effective dates of coverage. Binders are not acceptable. (Please do not send the entire policy.) Since you are unsure of the effective date of the license, you may submit proof that insurance coverage will begin at a future date. However, no license will be issued until proof of insurance has been provided. FIRE SAFETY Please contact the local fire marshal's office that has jurisdiction over the physical location of the facility. A satisfactory fire safety inspection must be completed before you can be licensed. Please submit a copy of the inspection report as proof the inspection has been completed. The report submitted must indicate that any cited deficiencies have been corrected or that you are approved for ALF licensure. SANITATION INSPECTION REPORT Please submit a copy of the sanitation inspection report completed by your county public health unit environmental services office. The report submitted must indicate that the inspection report was satisfactory (any cited deficiencies have been corrected). ZONING You must contact the Department of Children and Family Services, Community Residential Home Coordinator, Ellison Shapiro, (305) 377- 7511, to obtain Form 1786 if the ALF will be in a single family or multiple family zoned area. The white copy of this form should be sent to the agency. Verification of zoning approval must be provided from the city or county zoning office having jurisdiction where the facility is located. (This would be the zoning office, not Ellison Shapiro's office.) Zoning authorities must complete the Assisted Living Facility Form 3180-1007, or provide a letter on their letterhead stationery showing the name and address of the facility and that it is approved for use as an ALF. If the local zoning office will not complete the form, please submit proof that the zoning office has had the opportunity to approve or deny your request. (A dated, signed, handwritten note from the zoning authority and a business card stapled to the form would be acceptable.) HIV TRAINING Please complete and submit the enclosed HIV Education Confirmation form. This form is used to verify that all employees have been trained or will be trained in the required HIV education material. ASSETS AND LIABILITIES STATEMENT Please complete the enclosed assets and liabilities statement or provide a current balance sheet. Directions are on the reverse side of the form. You may desire to seek the assistance of a bookkeeper or an accountant in completing this form. The Agency must be able to verify that you have the financial ability to operate an ALF before your application can be approved. The form must be consistent with the application and the statement of operation form. STATEMENT OF OPERATION Please complete the enclosed statement of operation form. Directions are on the reverse side of the form. This form is a projection of anticipated expenses for the first year of operation. Directions for completing the form are on the reverse side of the form. Please consider seeking professional help, such as a bookkeeper or an accountant in completing the form. The information on this form must be consistent with the application submitted and the assets and liabilities statement. WARRANTY DEED/LEASE AGREEMENT You must provide proof that the applicant has the legal right to occupy the premises. Please submit a copy of the recorded warranty deed or a lease agreement in the applicant's name. If the corporation does not own the property, a lease agreement should be submitted between the property owner and the corporation. FLOOR PLAN Submit a floor plan of the facility indicating those rooms and areas that are to be licensed as part of the ALF. Each room should be labeled indicating the use of the room (example: bedroom, living room, bathroom, kitchen). The plan should be drawn on 8 1/2" X 11" paper. A simple hand drawn plan is acceptable. Architectural drawings are too large to fit into the Agency's files and should not be submitted to meet this requirement. BACKGROUND SCREENING Florida Abuse Hotline Information System Background Form AHCA 3110-0003 must be completed by each ALF owner with 10 percent or more interest, the administrator, general partner, each limited partner, and corporate officers (president, vice-president, secretary, and treasurer). The fee for background screening is included in the license fee. Please complete and sign the form. Petitioner did not respond to the Agency's letter of September 16, 1997. Consequently, by letter of October 16, 1997, the Agency advised Petitioner as follows: Your application for an initial license to operate the above Assisted Living Facility (ALF) is denied. It has been determined by the Agency for Health Care Administration that your application does not meet nor comply with the standards as an ALF pursuant to section 400.414, Florida Statutes (F.S.), and Chapter 58A-5, Florida Administrative Code (F.A.C.). The specific basis for this determination is: Submission of a fraudulent statement on the notarized application form. The application form asks if you have been arrested for a crime involving injury to persons. You wrote a comment stating "no injury". The background screening results from the Florida Department of Law Enforcement revealed that you have been arrested and convicted of aggravated assault and were received in the Florida Department of Corrections on 03/12/92 and discharged on 11/03/95. Submission of a fraudulent statement on the notarized application form is grounds for denial of this application, section 400.414(2)(i), F.S. An individual who is convicted of a crime involving injury to persons is considered not to be of suitable character to provide continuing adequate care to residents, section 400.414(2)(b), F.S. Failure to provide a complete application package. In a letter dated 09/16/97 you were informed that the application package was incomplete and that additional documentation must be provided on or before 10/07/97 or the application would be denied. You did not provide the requested documentation. The Agency is unable to verify that the applicant can provide adequate care to residents without a complete application package being on file, section 400.411(1), F.S. The letter further advised Petitioner of her right to request a formal administrative hearing to challenge the Agency's decision to deny her application. By letter of October 21, 1997, Petitioner responded to the Agency's letter of denial, and requested a formal hearing. With regard to the Agency's charge that she had submitted a fraudulent statement by stating "No Injury" in response to item VIIA, Petitioner stated her response was accurate because "I stated that I was convicted [and] wrote in the words 'no injuries' because it was worded as if with injury only." In response to the claim that her "conviction of a crime involving injury to others" rendered her of unsuitable character to qualify for licensure, Petitioner apparently disputed the Agency's contention that the crime involved injury to others, or that she was otherwise disqualified. She did not, however, dispute her conviction of a crime, which resulted in a sentence of imprisonment for a term of three years. Finally, with regard to the Agency's claim that she had failed to submit a complete application package, Petitioner responded, "I have no idea nor was I told of any documents missing out of package - please provide copy of document request and whatever documents are needed." Petitioner's criminal conviction Pertinent to Petitioner's conviction of a criminal offense, the proof demonstrates that on or about September 17, 1990, an Information was filed in the Circuit Court, Dade County, Florida, under Case No. 90-34662, which charged that Petitioner did, on August 27, 1990: . . . unlawfully and feloniously commit an aggravated assault upon OFFICER GARCIA, a Law Enforcement Officer during the course of or in the scope of said victim's duty and/or engaged in the lawful performance of his or her duty, by intentionally threatening by word or act to do violence to said victim, coupled with an apparent ability to do so, by point a SHOTGUN at said victim and threatened to kill him with a DEADLY WEAPON, to wit: A SHOTGUN, in violation of 784.021 and 784.07 and 775.0823 and 775.087 Florida Statutes. Based on the facts alleged, the Information charged Petitioner with three counts or violations of law, as follows: AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER 784.021 & 784.07 & 775.0823 Fel. IMPROPER EXHIBITION OF A DANGEROUS WEAPON RESISTING OFFICER WITHOUT VIOLENCE TO HIS PERSON On or about February 27, 1992, Petitioner was tried and found guilty of Count I, Aggravated Assault on a Law Enforcement Officer with a Deadly Weapon (a shotgun), a second degree felony proscribed by Sections 784.021, 784.07, 775.0823, and 775.087, Florida Statutes. As a result, Petitioner was sentenced to a term of three years and committed to the custody of the Department of Corrections until her discharge on November 3, 1995, upon expiration of her sentence. Further findings regarding Petitioner's failure to file a complete application At hearing, Petitioner did not dispute her application was incomplete or that the Agency, by letter of September 16, 1997, had requested additional information and documentation. Rather, in an apparent effort to avoid the consequences of an incomplete application, Petitioner averred she did not receive the Agency's letter of September 16, 1997. If true, Petitioner's plea does not excuse her failure to file a complete application or foreclose the Agency from relying on the incompleteness of the application as a basis for denial. Rather, what is dispositive is that, within 30 days of its receipt of the application, the Agency provided Petitioner with written notice by mail, at her address of record, of the errors or omissions in her application. The timely notice to Petitioner, which was not returned by the United States Postal Service, and not the actual receipt of the letter by Petitioner, preserves the Agency's right to deny the application as incomplete. Subsections 120.60(1) and (3), Florida Statutes. Notably, notwithstanding the de novo nature of these proceedings, Petitioner had not, as of the date of hearing, corrected the omissions in her application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Petitioner's application for a license to operate an Assisted Living Facility. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998.
Conclusions Having reviewed the attached Notices of Intent to Deny, Notices of Intent to Deem Applications Incomplete and Administrative Complaints, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named parties pursuant to Chapter 409, Florida Statutes, Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Notices of Intent to Deny with Election of Rights forms and Administrative Complaints with Election of Rights forms. (Composite Exhibit 1). The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties below shall comply with the terms of the Settlement Agreement. As to Amwil Assisted Living, Inc.: a. The Administrative Complaint (AHCA No. 2012003838) against Amwil Assisted Living, Inc., is UPHELD and its license is SURRENDERED. b. An administrative fine of $21,500.00 is imposed against Amwil Assisted Living, Inc., but is STAYED and the Agency will not attempt to collect the administrative fine in accordance with the terms of the settlement agreement. c. The Notice of Intent to Deny (AHCA No. 2012003675) the renewal application of Amwil Assisted Living, Inc., is UPHELD. d. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the 3 authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. e. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. f. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. As to Ann-Way Assisted Living, Inc.: g. The Administrative Complaints (AHCA Nos. 2012003081 and 2012008505)" continue to be UPHELD and Ann-Way Assisted Living, Inc. continues to be responsible for payment of the previously imposed amount of $5,750.00. The license revocation action against Ann-Way Assisted Living, Inc., imposed in the Final Order is VACATED and withdrawn to permit the change of ownership application process. h. The Notice of Intent to Deny (AHCA No. 2012013663) the renewal application of Ann-Way Assisted Living, Inc., is SUPERSEDED in accordance with the terms of the Settlement Agreement to permit the change of ownership process. i. 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 10 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 ORDERED in Tallahassee, Florida, this 7 day ot Oplrer_. 2013. Elizabeth Dudek, Secretary Agency for H Care Administration 2 This Final Order amends the original final orders that were entered on October 15, 2012. 4 CERTIFICATE OF SERVICE I CERTIFY that a true and correct Copy ge te foregoing was Ae named , 2013. addressees by the method designated on this_ 5% day of Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Finance & Accounting Arlene Mayo-Davis, Field Office Manager Revenue Management Unit Local Field Office 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) Theresa DeCanio, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration Tracy George Chief Appellate Counsel Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Lourdes Naranjo, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) John Bradley, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Eric D. Frommer, Esquire Fisher & Frommer, PLLC 250 International Pkwy, Suite 260 Lake Mary, Florida 32746-5022 efrommer@fisherfrommer.com (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 5 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.
