The Issue As to DOAH Case No.97-4464, whether Broadview Retirement Home is entitled to renewal of its license as an assisted living facility. As to DOAH Case No. 97-5695, whether Broadview committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to these proceedings, Pauline Ann Black was the owner of Broadview Retirement Home, a licensed assisted living facility located at 1741-1743 Southwest 70th Avenue, Pompano Beach, Florida. At all times relevant to these proceedings, the facility was licensed for six residents. The Agency has jurisdiction over Broadview by virtue of the provisions of Chapter 400, Part III, Florida Statutes, and Chapter 58A-5, Florida Administrative Code. Prior to July 31, 1997, Broadview applied for renewal of its license to operate as an ALF. On July 31, 1997, the Agency issued to Broadview a letter that denied the application for renewal for the following specified reason: The applicant's failure to provide required ALF license application information pursuant to section 400.414(2)(g), F.S. and 58A- 5.022(17), F.A.C. The requested information included a satisfactory fire safety inspection report. By notice with an effective date of August 29, 1997, the Agency imposed a moratorium that prevented Broadview from admitting new residents. Whether the Agency had sufficient grounds to impose the moratorium was not at issue in this proceeding. On September 23, 1997, the Agency received a complaint from a police officer that caused it to conduct an immediate inspection of Broadview. Ana Garcia-Quevedo, an experienced investigator employed by the Agency, was assigned the responsibility of conducting the inspection. Ms. Garcia-Quevedo's job title is Health Facility Evaluator I. Because there were no other investigators available, Ms. Garcia-Quevedo was the only Agency employee who participated in the inspection on September 23, 1997. On September 23, 1997, Broadview did not have posted at the facility a copy of the letter denying its renewal application, or the notice imposing the moratorium on admissions. On September 23, 1997, Broadview did not have available for inspection a copy of its fire safety inspection report.1 There were four residents of Broadview on September 23, 1997, each of whom was an elderly female. By agreement of the parties, the residents were referred to by number at the formal hearing. There was only one staff person on duty at Broadview when Ms. Garcia-Quevedo conducted her investigation. One of the residents was wheelchair bound and two other residents were too confused to react in an emergency. One employee was insufficient to assure the safety of the residents in the event of an emergency, such as a fire. Residents 1 and 4 did not meet the criteria for placement in an ALF as they both required the degree of care and supervision provided by a nursing home.2 Both of these residents were unable to participate in any leisure activities and could not communicate in a meaningful way. When the residents were removed from the facility on September 26, 1997, these two residents were transferred to Plantation Nursing and Rehab Center, which is a nursing home. Resident 2 suffered Insulin Dependent Diabetes Mellitus and required administration of insulin twice daily. Resident 2 was not capable of taking her medication without assistance. Broadview's employee was not aware of the amount of insulin Resident 2 required, and she was not aware of Resident 2's dietary restrictions. Although Resident 2 was transferred to another ALF on September 26, 1997, Broadview was not an appropriate placement for this resident because Broadview did not provide this resident with sufficient care and supervision in the administration of her medicine or the provision of her food. Broadview did not maintain Resident 2's insulin in a locked area. This medicine was kept in a refrigerator in the butter compartment, which did not have a locking system. A review by Ms. Garcia-Quevedo of the records made available to her by the Broadview employee on September 23, 1997, revealed that Broadview did not maintain current records of the condition of the respective residents. The last entries in the records for Residents 1, 2, and 3 were made in September of 1996. Resident 4 was admitted to Broadview from a skilled nursing facility on June 4, 1997. A discharge summary prepared by that nursing home was the only record for Resident 4. There were no records describing the condition for Resident 4 subsequent to her admission to Broadview. As of September 23, 1997, Broadview was unable to document that it was providing its four residents with services appropriate to their needs. The records for these residents did not contain documentation by Petitioner regarding the level of care or personal supervision needed. As of September 23, 1997, there was no health assessment of Resident 4 in Broadview's records. Broadview did not have available for inspection on September 23, 1997, records of the weights of the residents. 3 All four residents required special diets. Residents 1, 2,and 3 had orders for restricted diets documented in their health assessments. Resident 4 did not have a health assessment, but the discharge summary from the skilled nursing home from which she had been transferred ordered a therapeutic diet. The posted menu on the date of the survey was dated for the week of October 31, 1996. The posted menu documented an evening meal that was not the meal that was actually served. Broadview did not document the changes in the menu or provide a nutritional substitute for one of the menu items (fruit cocktail). There were insufficient foods in storage to prepare the planned meals for the week. The employee on duty on September 23, 1997, did not know when additional food items would be purchased. As of September 23, 1997, the diets offered by Broadview did not meet the nutritional needs of the four residents. The last recorded weight of Resident 1, in the amount of 122 pounds, was on the date of her admission, which was December 31, 1994. When she was weighed by Ms. Garcia-Quevedo on September 23, 1997, her weight was 96 pounds. When Resident 1 was weighed upon transfer to the skilled nursing home on September 26, 1997, her weight was 94.5 pounds. The last documented weight for Resident 2, in the amount of 180 pounds, was entered on July 8, 1996. Ms. Garcia-Quevedo was unable to weigh this resident because she could not slide back on the chair scale. The last documented weight for Resident 3, in the amount of 136 pounds, was entered on March 20, 1996. When she was weighed by Ms. Garcia-Quevedo on September 23, 1997, her weight was 122 pounds. The last recorded weight for Resident 4, in the amount of 105, was reflected in the discharge summary when she was transferred from the skilled nursing home to Broadview on June 4, 1997. When she was weighed by Ms. Garcia-Quevedo on September 23, 1997, her weight was 86 pounds. When Resident 4 was weighed upon transfer to the skilled nursing home on September 26, 1997, her weight was 102 pounds.4 The Agency established that Residents 1 and 4 suffered weight losses while residing at Broadview. The evidence was insufficient to establish that Residents 2 and 3 had also suffered weight losses. Residents 1 and 4 were dressed in clothing stained with food particles.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order revoking Broadview's license as an assisted living facility. DONE AND ENTERED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of February, 1998
The Issue The issues to be determined are whether Respondent, Miracles House, Inc. (Respondent or Miracles), as licensee of Miracles House, Inc., a group home facility, violated provisions of section 393.0673, Florida Statutes (2017), and administrative rules,1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact APD is responsible for regulating the licensing and operation of group home facilities in the state of Florida. APD's clients include vulnerable individuals with developmental disabilities attributed to autism, cerebral palsy, intellectual disabilities, Phelan-McDermid syndrome, Prader-Willi syndrome, or spina bifida. APD's clients can choose to live in an institutional setting, group home, or independently. A client is assisted in this choice by a residential placement coordinator. A group home is a licensed facility providing a living arrangement similar to a family setting. It is the provider's responsibility to provide not only room and board but also safety, transportation, assistance with the activities of daily living, and to attempt to provide all residential habilitation services at the level needed by the client, as established by the client with a waiver support coordinator. A waiver support coordinator is an independent contractor for APD who acts as a case manager and is responsible for coordinating the services provided to a client. Support plans are prepared and submitted to APD by a client's waiver support coordinator. A support plan is a "snapshot" of a client's life. It includes a summary of events and activities that have occurred throughout the year, including hospitalizations, medications, and the client's goals. The resources and capabilities available to a client and his support givers are not always sufficient to meet all of the client's needs. The support plan is implemented to maximize the attainment of habilitative goals. The support plan is periodically reviewed to assess progress toward habilitative and medical objectives and revised annually after consultation with the client. Each client is assigned a level of care code that relates to payment made to the group home on the client's behalf. As its name suggests, there is some correlation between the level of care code that is assigned and the level of care to be given by the provider, but because additional services may be provided by other individuals and resources, the assigned level of care does not necessarily reflect all needs and services necessary for, or being provided to, the client. If a group home believes that it cannot provide the required residential habilitation services or meet its responsibilities with respect to a particular client, it can make this known to the waiver support coordinator. Adjustments are periodically made to the support plan, including the level of care code. If adjustments sufficient to address the provider's concerns are not made, a group home may request that a client be placed in another facility. APD issued license number 11-1088-GH to Miracles for the purpose of operating a group home located at 113211 Northwest 26th Court, Miami, Florida. Ms. Whipple is a corporate officer of Miracles and the on-site manager of its group home. There was no evidence introduced indicating that Miracles had previously received discipline based upon its group home license. Client R.H. At all times material to this case, Client R.H. was a resident of Miracles' group home, where he has lived for several years. Client R.H. has an intellectual disability. Mr. Lumumba was a contracted waiver support coordinator working with APD. He began work in this capacity in July of 2016 and was assigned to Client R.H. at that time. Mr. Lumumba prepared support plans and many incident reports for Client R.H. after that date. Incident reports prior to Mr. Lumumba's service were also admitted into evidence. Successive support plans repeat much of the narrative from prior plans, and because only selected plans were introduced into evidence, it is difficult to determine exactly when many of the additions or entries were made. Client R.H. is reported as having suicidal thoughts, and it is noted that when he is under the influence of drugs, he requires support and direction to be safe. He is described as needing reminders, instruction, redirection, and support to avoid danger and to remain healthy and safe. Notations in the support plans and numerous incident reports document a distinct pattern of behaviors by Client R.H. In an incident report dated January 26, 2015, it was reported that Client R.H. became agitated, left the group home alone, and walked to the Mental Health Center located at Northwest 27th Avenue and 151st Street. He was later transported by the Mental Health Center staff to Jackson Memorial Behavioral Health Unit and admitted. In an incident report dated February 11, 2015, it was reported that Client R.H. became agitated and left the group home to go to the store, refusing to be accompanied by staff. He later presented himself at North Shore Medical Center where he was admitted to the Crisis Stabilization Unit. In an incident report dated February 17, 2015, it was reported that Client R.H. visited his mother, got into an argument with her, left her home, and went to Memorial Regional Hollywood Emergency Room (ER). He was later discharged in the care of Miracles' group home staff. In an incident report dated March 30, 2015, it was reported that Client R.H. became argumentative and left the group home unaccompanied under the pretext of going to the nearby corner store. He traveled to the North Shore Medical Center ER and was admitted to the Behavioral Health Unit. He was discharged on March 25, 2015, and returned to Miracles by hospital staff. A July 19, 2015, update to the Client R.H.'s support plan indicates that Client R.H. reported that he was not abused at the Miracles' group home, and that he felt safe and wanted to stay there. In an incident report dated August 14, 2015, it was reported that Client R.H. left the group home and went to the North Shore Medical Center ER, where he was admitted as a psychiatric patient. The group home was informed he would be kept for 72 hours and then discharged. In an incident report dated August 18, 2015, it was reported that Client R.H. "eloped" from the group home. He later made contact with his mother, began acting in bizarre ways, and said he needed drugs. He ran into the street shouting, began to undress, and lay down in front of cars. He was taken to Aventura Hospital and admitted as a psychiatric patient. A September 21, 2015, update to the support plan reflects that Client R.H. had moved out of the Miracles group home to stay with his sister. In September of 2015, Client R.H. was removed from Miracles at Dr. Whipple's request, made 30 days earlier, according to Mr. Lumumba. A December 14, 2015, entry in the support plan indicates that Client R.H. went to jail in October 2015 for trespassing and petty theft. When he was released on December 6, 2015, he asked to return to Miracles' group home. The support coordinator was unable to place Client R.H. in another group home, and Miracles' group home was requested to take him back, which it did. In an incident report dated February 12, 2016, it was reported that Client R.H. became agitated, argumentative, and uncontrollable. He walked to the street, pulled down his pants, screamed, and began to roll around in the street. Police were called, and he was arrested and transported to the North Shore Medical Center. In an incident report dated March 9, 2016, it was reported that Client R.H. was verbally and physically out of control. He went to the street in front of the house, fell to the ground, and began rolling around. He could not be physically restrained or verbally redirected. The police were called, and he was restrained and taken to North Shore Medical Center where he was admitted for psychiatric treatment. In an incident report dated March 17, 2016, it was reported that police arrived at the facility and arrested Client R.H. for a 2014 charge of stealing church equipment. During the annual support plan meeting on June 1, 2016, Client R.H. indicated that he still felt comfortable at the group home and said that "Ms. Felicia" (Whipple) was like a mother to him. Client R.H. indicated he had been going to church with her every Sunday since he returned to the group home in December. The July 1, 2016, support plan prepared by Mr. Lumumba suggested that the rate for client R.H. be changed from minimal to moderate and stated: [Client R.H.] requires 24 hours' supervision to ensure health and safety as he suffers from insomnia, seizures, psychosis and mood disorder, Bipolar, depression, and drug addictions. The approval of this services request will ensure that [Client R.H.] receives the support that he needs to achieve his goal and maintain a healthy life style. The July 1, 2016, support plan also noted: Consumer has had history of abuse in the past when he was living with his mother. He was abused by mother's boyfriend. However since he has been at Miracle House, there was an abuse allegation made by [Client R.H.'s] mother, however it was investigated and they have find that the mother was the one who initiated the allegation. There was no foundation on those allegations. No history of abuse or neglect that has been documented in his records. Mr. Lumumba testified that the notations in the support plans that Client R.H. required 24-hour supervision were "recommendations" as opposed to "requirements." In an incident report dated July 13, 2016, it was reported that Client R.H. went to his mother's housing complex unannounced, where security was unable to reach his mother, and he was denied access. He became agitated, verbally aggressive, and out of control. The police were called, and he was taken to Hialeah Hospital. In an incident report dated July 23, 2016, it was reported that Client R.H. left the group home without stating where he was going. He failed to return to the group home overnight. His mother called the group home to inform staff that he had been arrested after police approached him and found crack cocaine in his possession. A support plan update dated December 1, 2016, indicates that Miracles requested a change from "minimal" to "moderate" behavioral focus to provide additional services to Client R.H. In an incident report dated December 5, 2016, it was reported that Client R.H. was verbally abusive, out of control and agitated, screaming and cursing staff, and running in the street. The report states that police were called, and he was transported to North Shore Medical Center's crisis unit. He was discharged from North Shore Medical Center and returned to the group home on December 7, 2016. In an incident report dated December 28, 2016, it was reported that Client R.H. went to his mother's housing complex unannounced, where security was unable to reach his mother, and he was denied access. He became agitated, verbally aggressive, and out of control. The police were called, and he was taken to Hialeah Hospital. In an incident report dated February 25, 2017, it was reported that Client R.H. informed staff at about 10:00 p.m. that he was going to buy cigarettes from the corner store. He did not return and called the group home from the jail to report that he had been stopped by police, searched, and arrested for possession of crack cocaine. In an incident report dated March 27, 2017, it was reported that Client R.H. told staff he was going to a store to buy cigarettes. He did not return and was assumed to be at his mother's house. His mother called late in the afternoon to report that he had gone to the North Shore Medical Center ER and been admitted to the crisis unit. Ms. Whipple testified that in March of 2017, Client R.H.'s level of care code was changed to Extensive 1. In an incident report dated April 6, 2017, it was reported that Client R.H. became agitated, combative, and threatening. Staff was unable to de-escalate his behaviors. Police were called, and he was taken to North Shore Medical Center. In an incident report dated April 17, 2017, it was reported that Client R.H. went to visit his mother on Easter morning. His mother called in late afternoon to report that he had gone to North Shore Medical Center ER and been admitted to the crisis unit. In an incident report dated April 26, 2017, it was reported that Client R.H. left the group home in the afternoon for cigarettes. He did not return. His mother called at 10:30 p.m. to report that he had called her from Palmetto General Hospital where the police had taken him. In an incident report dated May 7, 2017, it was reported that Client R.H. left the group home for cigarettes but walked to the Jackson Memorial Hospital mental health unit instead, where he was admitted. In an incident report dated May 17, 2017, it was reported that Client R.H. left the group home saying he needed cigarettes from the store. He later called his mother to report that he had been picked up by the police for burglary. In an "annual summary" entry in the support plan, it was noted, in relevant part: [Client R.H.] has not make much progress this year. He has been in and out of Crisis and has been Backer Acted too many times and at the time that I'm writing this Support plan, [Client R.H.] is an crisis since May 17-2017. [Client R.H.] needs another supportive alternative program to rehabilitate him for his constant going to crisis. He need to be a program where he can be monitored and with a restricted rules and regulation and Medical intervention or his constant substance issues. In an incident report dated May 28, 2017, it was reported that Client R.H. left the group home to go to his mother's home on May 27, 2017, and did not return as expected. He called the group home on May 28, 2017, and said he was at Jackson Memorial Hospital in the crisis unit. He was released on May 29, 2017. In an incident report dated June 5, 2017, it was reported that Client R.H. left the group home to go to the store the previous day and failed to return. His mother called to report that he had been arrested for breaking and entering and stealing merchandise from someone's home. Following the 2017 support plan meeting, in which the number of incident reports and alternatives to address Client R.H.'s drug issues were discussed, the July 1, 2017, support plan stated that "[Client R.H.] has been unpredictable and it require a lot of man power to really keep [Client R.H.] living at Miracles House, the group home is asking the Behavior analyst to have [Client R.H.] level of care has been approved to change from Moderate to Extensive Behavior focus [] 1." Mr. Lumumba noted that no abuse or neglect had been reported since he began working with Client R.H. in 2015. In an incident report dated August 5, 2017, it was reported that Client R.H. became verbally agitated and physically aggressive with medical staff while at an appointment at a mental health provider. The report states that police were called, and Client R.H. was "taken under Baker Act." In an incident report dated August 14, 2017, it was reported that Client R.H. left the group home for cigarettes. He called later to say that he had checked himself in at Jackson Memorial Hospital ER. In an incident report dated November 29, 2017, it was reported that Client R.H. left the group home to purchase cigarettes and did not return. His mother called to report that he had been arrested for property theft. In an incident report dated January 27, 2018, it was reported that Client R.H. became agitated and said he wanted to go to the crisis unit. He called the police, and when they arrived, he was outside running up and down in front of the home and saying he wanted to go to the hospital. He was taken to North Shore Medical Center Crisis Unit. In an incident report dated February 12, 2018, it was reported that Client R.H. began screaming uncontrollably. He became verbally aggressive, ran outside the facility, said he wanted to kill himself, and asked for the police to be called. After unsuccessful attempts to de-escalate the situation, police were called, and he was taken to North Shore Medical Center's crisis unit. In an incident report dated March 26, 2018, it was reported that Client R.H. left to get items from the corner store and did not return. North Shore Medical Center called to say he had arrived there. He was admitted. In an incident report dated May 30, 2018, it was reported that Client R.H. left the group home to get items from the store. He called in the afternoon saying he had gone to Jackson Memorial Hospital ER and been admitted into the crisis unit. In an incident report dated June 2, 2018, it was reported that Client R.H. went to his mother's home for a visit, where he initiated an altercation with his mother. He was taken to the North Shore Medical Center Crisis Unit. In an incident report dated June 12, 2018, it was reported that Client R.H. left the group home. His mother later advised that he had walked to Jackson North and checked himself into the Crisis Unit. In an incident report dated June 26, 2018, it was reported that Client R.H. left the group home to go to the store. He wandered in to North Shore Medical Center and stated he was not feeling well. He was admitted as a medical patient. Ms. Whipple testified that Client R.H. was a competent adult and that she was legally unable to restrain him. She testified that he always asked for permission to leave. But when they told him he could not go, she testified, he would get mad and storm out the door anyway. Ms. Whipple recognized that Client R.H. required a great deal of supervision, and she requested that his level of care code be increased, so that she would be compensated in part for her increased responsibilities, but she testified that she was never focused that much on the amount of money she was receiving. Ms. Whipple testified that she trained her staff to redirect Client R.H.'s behaviors to ensure that he would not run off. She stated that an Extensive 1 level meant that he should be closely watched, and that is what the staff at Miracles' group home was trained to do. Mr. Lumumba testified that he had tried to place Client R.H. in other group homes, but that Miracles' group home was the only place that he knew Client R.H. would survive. The notations in these incident reports and support plans strongly support Mr. Lumumba's sentiment that Client R.H. "needs another supportive alternative program to rehabilitate him for his constant going to crisis." APD did not clearly show that the support plan's statement that Client R.H. "requires 24 hours' supervision" created a legal obligation for Miracles to literally provide constant supervision. APD did clearly and convincingly show that Miracles failed to facilitate the implementation of Client R.H.'s support plan, because, taken as a whole, it obviously required a very high level of supervision that Miracles could not, or did not, provide. APD does not argue, and there was no evidence to show, that Client R.H.'s dignity was infringed, that his right to privacy was violated, or that he was subjected to inhumane care, harm, unnecessary physical, chemical or mechanical restraint, isolation, or excessive medication. There was no evidence that the Department of Children and Families (DCF) verified that Miracles was responsible for any abuse, neglect, or exploitation of Client R.H. The record contains evidence of a single DCF investigation into allegations of maltreatment and inadequate supervision, opened on November 30, 2017, and closed on January 22, 2018. That investigation concluded that the allegations were not substantiated, that no intervention services or placement outside the home was needed, and that Client R.H.'s needs were being met. There was no compelling evidence to show that Client R.H. was subjected to abuse or exploitation by Miracles while at the group home. Client J.B. Client J.B. has an intellectual disability and lived at Miracles' group home from May until December of 2017. In an incident report filed by Ms. Loriston dated December 14, 2017, it was reported, in relevant part, that: On 12/14/17 at 6:15 pm wsc received a phone call from Ms. Felicia Whipple stating that she threw the consumer's belonging in the front yard as she is no longer welcome to her group home. Ms. Whipple also stated that [Client J.B.] is on the way home from her part-time job, she contacted [Client J.B.] to let her know of her belongings bein in the front yard. [Client J.B.] contacted law enforcement because she feared for her safety, WSC immediately was able to find an emergency accommodation at Paradise Gaine Group Home. While she testified that her report was accurate, Ms. Loriston described the events a bit differently at hearing. She testified that Ms. Whipple called her to say that Client J.B. could no longer come back to the group home and that her belongings would be waiting for her in front of the door. She specifically testified that Ms. Whipple did not tell her that she threw Client J.B.'s belongings in the front yard, but rather told her that they were at the front door. Ms. Loriston testified that when she arrived at Miracles' group home, she did not see the belongings, that the incident was over, and the police were gone. In an incident report filed by Ms. Whipple, dated December 16, 2017, it was reported that: Consumer receives her Social Security Disability Check and she is currently employed at MACY's. From these funds she refused to pay Room and Board and refused to move from the facility. Following a confrontation requesting payment, she left the facility and returned later with 2 cars loaded with family and associates to the facility to threaten the owner and the facility. Police were called and APD, Residential Services Coordinator, Carey Dashif. He along with the WSC coordinated the transition of consumer to another group home in the interest of safety for Miracles House residents and staff. Ms. Loriston's account of events was less than clear and convincing due to the discrepancies between her statement in the incident report and her testimony at hearing. She did not actually see any of the events of that evening and did not remember distinctly the exact admissions of Ms. Whipple, the critical competent evidence in the case. She was consistent in her testimony that Ms. Whipple admitted she had moved Client J.B.'s belongings. Her remaining testimony was largely hearsay. While Ms. Whipple's account of events was less than credible, it was not her burden to prove what happened. Ms. Llaguno testified that the proper procedure to terminate services to Client J.B. would have been for Miracles to send a 30-day notice terminating the placement. Ms. Loriston similarly testified that this was also her understanding. Remarkably, no APD rule establishing this policy was recognized or identified at hearing, however. Neither were Miracles' written criteria or procedures for termination of residential services introduced. Though Ms. Loriston's testimony that she had to immediately find other housing for Client J.B. is credited, violation of APD rules was not clearly shown. APD did not show that Miracles failed to have written criteria and procedures for termination in place or that they were not consistent with Florida Administrative Code Chapter 65G-3. Medicaid Action As stipulated by the parties, in July of 2017, the Agency for Health Care Administration took action against Miracles by terminating its Medicaid provider number. As stipulated by the parties, Miracles lost its Medicaid provider authorization, and has lost the right to furnish Medicaid services and receive payment from Medicaid in Florida. No evidence as to the basis for, or purposes of, the Medicaid termination was introduced. There was no evidence that Miracles previously had its license to operate a residential facility revoked by APD, DCF, or the Agency for Health Care Administration.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order finding Miracles House, Inc., as licensee of Miracles House, Inc., Group Home, in violation of Florida Administrative Code Rule 65G-2.009(1)(a)1. and section 393.0673(1)(a)2., Florida Statutes; suspending its license to operate a group home until its right to furnish Medicaid services and receive payment from Medicaid in Florida is restored; and imposing a fine in the amount of $100. DONE AND ENTERED this 17th day of September, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 17th day of September, 2018.
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was the owner of a licensed assisted living facility located at 7701 Southwest 20th Street, Miami, Florida (the subject premises). This facility was licensed for six residents. Jose Gutierrez-Marti and Maria Witt were the owners of the Respondent. The residents of the subject premises were mentally ill adults. On November 21, 1996, Arturo Bustamante, a fire protection specialist and a health facility evaluator employed by Petitioner, conducted an inspection of the subject premises. Mr. Bustamante went to the subject premises in response to a complaint and to conduct a follow-up inspection to the previous inspection. During the course of his inspection, Mr. Bustamante determined that there were eight residents living at the subject premises. This determination was initially made by counting beds and inspecting the prescription medication that was provided each resident. Mr. Bustamante confirmed that there were eight residents by interviewing the residents, and by observing that the eight residents were removed from the subject premises later that day by the Department of Children and Family Services, formerly known as the Department of Health and Rehabilitative Services. There was no running water in the subject premises on November 21, 1996. Consequently, there were no functioning bathroom facilities in the subject premises. Mr. Bustamante observed fresh feces and the smell of urine in an area of the backyard that the residents reported they used in lieu of a bathroom. Respondent had not notified Respondent that the water services had been terminated. There was no evidence that Respondent had taken any action to correct this serious deficiency. There was insufficient evidence to establish when the water service had been terminated or whether water service had been terminated previously. Mr. Bustamante observed roach droppings throughout the subject premises. Mr. Bustamante observed a box of powdered milk on a shelf inside the facility. When he opened the container to inspect the contents, five or six roaches jumped out of the box. Metro-Dade Police Officers Mary Ippolito and Mary Jo LaMont came to the subject premises at the request of Mr. Bustamante. These police officers were present when the residents were removed from the subject premises. Officer LaMont observed cockroaches in the kitchen area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that finds that on November 21, 1996, Respondent exceeded its resident capacity and failed to meet licensure standards. It is further RECOMMENDED that the Final Order impose an administrative fine against the Respondent in the amount of $1,000.00 for exceeding its resident and capacity. It is further RECOMMENDED that Respondent be fined $4,000 and its license revoked for failing to provide for the residents' basic sanitation needs. It is further RECOMMENDED that Respondent be permitted to reapply for licensure when it can establish that its facility meets all licensure standards. DONE AND ENTERED this 1st day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2st day of December, 1997.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner Lindsey is the owner and operator of the F & F Guest Home, an adult congregate living facility within the meaning of Florida Statutes, Section 400.401, et seq. At the time of her original licensure under the Adult Congregate Living Facilities Act, petitioner was granted a conditional license, thus providing her with an opportunity to correct deficiencies in her facility. On May 18, 1978, a representative from the Pinellas County Health Department conducted a sanitation elevation and a food establishment inspection of petitioner's facility. As illustrated on Exhibit 1, fourteen deficiencies were found with regard to the food service area. The sanitation evaluation noted that painting was needed throughout the kitchen, that the toilet floors were in need of repair and that better housekeeping was needed. (Exhibit 2) On August 2, 1978, respondent notified petitioner that her application for relicensure of the F & F Guests Home as an adult congregate living facility had been denied. It was determined by the respondent that the facility was in violation of Chapter 10K-6.10 and 10K-6.11, F.A.C., in that the facility had failed to pass the food establishment inspection. Many of the deficiencies listed in the inspection report had been corrected as of the date of the hearing. It was petitioner's intention to correct all deficiencies and do renovation work at the same time. She has had difficulty obtaining financing, and thus has not completed the work required for licensure.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent deny petitioner licensure until such time as it is adequately demonstrated that petitioner has complied with all licensing requirements. Respectfully submitted this 14th day of December, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Anne M. Lindsey 800 - 17th Avenue South St. Petersburg, Florida 33711 Barbara McPherson, Esquire District V Counsel Department of HRS Post Office Box 5046 Clearwater, Florida Gail Graham Adult Congregate Living Program Department of HRS Post Office Box 5046 Clearwater, Florida 33518 Emmett Roberts, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
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:
Findings Of Fact At all times relevant hereto Bayview Superior Retirement Home (Bayview or Respondent) was licensed by Petitioner as an Adult Congregate Living Facility. At the time of this hearing there were ten residents at Bayview. These residents ranged in age from about 60 upward. Several of these residents are senile or partly so; and many are incapable of taking care of their personal needs such as taking their medication, bathing and dressing themselves, visiting their doctors' offices, or going out of Bayview unescorted. Jenny D. is a resident at Bayview. She easily becomes disoriented and has a propensity for wandering to other residents' rooms and for leaving the facility and walking downtown. On several occasions Jenny D. was picked up by the police walking on the street in heavy traffic and was unable to give her name or where she lived. To deter this practice, and at the prodding of Petitioner, Bayview installed a door alarm system to alert the attendants on duty of a resident's attempt to slip out for any reason. On only one occasion since the installation of this alarm was Jenny D. successful in slipping away and having to be returned by the police or be picked up by someone from Bayview and brought back. On July 6, 1983, approximately one week following one of Jenny D.'s sojourns from Bayview, Rebecca Falzone, a licensed specialist for Petitioner, visited Bayview to inspect the home and records. A review of Jenny D.'s record did not reveal an incident report on Jenny D.'s escapade the previous week. At the time of this visit the Administrator, Gordon Groundwater, was not present. Groundwater had prepared the incident report but had removed the handwritten copy from the file to be typed. A copy of the incident report was submitted as Exhibit 8. On or about June 15, 1983, after going to bed, Jenny D. got out of bed and wandered to other residents' rooms until she was taken back to her bed by an attendant. Jenny D. resisted the efforts to put her into bed and she had to be restrained to get her back to bed. This consisted first of holding Jenny D.'s arms then placing her in a jacket-type restraint to keep her in bed until she settled down. During this restraining process, Jenny D. suffered bruises on her arms (Exhibit 2). Terry Orme worked as a handyman at Bayview from July to mid-September, 1983, at which time he was fired. Orme occupied an apartment owned by Bayview as part of his compensation for his services. Upon being terminated, he was told to vacate the apartment, but did not leave until evicted by court order in October. After his termination, Orme reported to Respondent an incident involving one resident who had nearly choked on a nylon hose put on her hands and arms to deter the resident from sucking her fingers. In sucking her fingers through the hose, she sucked part of the hose down her throat. Orme also testified that he put chains on doors to keep residents from wandering into other residents' rooms. On one occasion during a visit to Bayview by Frederick Timmerman, M.D., who serves on the Ombudsman Council with Bayview as his responsibility, no menu was posted. Dr. Timmerman attempted to talk to the residents at Bayview but got no intelligent answers from any of them. On another occasion during a visit to Bayview by one of Petitioner's employees, the posted menu had not been changed to correspond with the meal being served. Gail Silva worked at Bayview on Saturday, August 27, 1983, from 7:00 a.m. until 4:36 p.m. She was hired by Mrs. Siess and at 4:36 p.m. when Mrs. Siess returned to Bayview Mrs. Silva quit, quite angry because she had told Mrs. Siess she needed to leave at 3:00 p.m. to take care of her young children, and Mrs. Siess was not present to relieve her at that time. Upon reporting for work that Saturday morning, Mrs. Silva was taken on rounds by Mrs. Siess. They went to a room occupied by Hanna, an incontinent resident who was taken to the bathroom and hosed down by Mrs. Siess. Liquid detergent was used by Mrs. Siess to wash the resident's genital area. No full bath was administered. Later that day Mrs. Silva bathed another resident who had diarrhea and was wearing Pampers diapers and loose underwear. A bathing schedule was posted but Mrs. Silva did not know if anyone was scheduled for a bath the one day she worked. Mrs. Silva also observed Mrs. Siess give medications to some residents. For some, she put the pill in a bowl and provided them with water to wash down the pill. For one resident, Mrs. Siess put the medication in some pudding which was given to the resident. Mrs. Silva also testified that one resident had an infected foot, on which Silva cut out an ingrown toenail; that she cut the fingernails of several residents; that she assembled them in the afternoon to discuss recreation with them and several requested music and dancing; that no recreation activities such as radio, group games, etc., were provided; that the t.v. provided was a pastime and not an activity; and that Mrs. Siess asked her if she knew how to change a catheter. Mrs. Silva's medical education consists of a course in home health training which she took from a nursing agency, but she has done volunteer health work in the past. She knew that only a licensed nurse is authorized to change a catheter and was offended at being asked if she knew how to change one. During an evening visit to Bayview by Mrs. Falzone, residents told Mrs. Falzone around 9:00 p.m. that they were hungry. The evening meal had been served at 5:00 p.m. and breakfast was scheduled at 8:00 a.m. the next morning, more than 14 hours after the dinner meal. The medicine chest in which medications are stored is a metal box which opens from the top. There is no handle on the door (top) of this chest, and on several occasions when inspectors were at Bayview the chest was not locked. The chest was kept in the kitchen, to which residents were barred, and either a knife or screwdriver was needed to open the unlocked chest. Even with the key, it is difficult to open the chest without applying the levering effect of a knife or screwdriver to lift the door of the chest on its hinges. All witnesses agreed that few, if any, residents had the dexterity to open the unlocked medicine chest; that the residents did not have access to the chest located in the kitchen; and that a large percentage of these residents could not take their medications unaided, but needed to be given their proper medications by one dispensing the medications to them. Considerable evidence was submitted that many of the residents at Bayview were unable to safely leave the facility without close supervision; and that Jenny D. "walked away" on numerous occasions before the door alarm system was installed, and one time after it was installed. Respondent is also charged with having doors locked and wired shut to keep residents from surreptitiously leaving the facility and thereby subjecting themselves to danger. The evidence in this regard was contradictory, with one witness testifying the one day she worked at the facility one outside door was wired shut, while the Administrator of the facility categorically denied any door was so wired. Since neither of these witnesses' testimony is deemed more credible than the other, the evidence on this charge is in equipoise. Terry Orme also testified that on one occasion he, at the request of Mrs. Siess, signed a name to a contract as sponsor, thereby forging the signature. A copy of this contract was not produced and no other evidence regarding this incident was presented. However, Orme's testimony in this regard was not contradicted. Residents of Bayview Superior Retirement Home are happy at the facility and their relatives are satisfied with the facility and the care given to these residents. Several relatives of residents at Bayview phoned and wrote to the Ombudsman responsible for this facility complaining about having to move their relatives from this facility.
