The Issue Whether the Agency's denial of Petitioner's request for exemption for employment as a Certified Nursing Assistant in an Assisted Living Facility pursuant to Section 435.07, Florida Statutes, was proper.
Findings Of Fact The Agency for Health Care Administration is responsible for conducting background screenings for employees of health care facilities licensed under Chapter 400, Florida Statutes. At all times material to this case, Petitioner, Nikita Johnson, a licensed certified nursing assistant, was employed by an assisted living facility in Pinellas County, Florida, providing personal services to the residents therein. On or before October 23, 2000, and after a level I background screening by the Assisted Living Facility (AFL) licensing unit, Petitioner requested a hearing on her exemption for employment application. On October 23, 2000, the ALF licensing unit conducted a telephonic hearing on Petitioner's request for an exemption for employment. ALF licensing unit denied Petitioner's request for exemption. The Agency proved that on December 23, 1998, Petitioner was arrested on the felony charge of sexual assault: a sexual offense against a child, and lewd lascivious acts in the presence of a child under the age of 16 years. The felony charges were reduced to misdemeanor charges. Petitioner entered a plea of guilty to each of the two counts of battery, was convicted, and sentenced to one-year probation, plus payment of a fine and court cost. Petitioner completed the terms and conditions of her probation on or about April 4, 2001. The Agency proved that on February 19, 2000, Petitioner was arrested on the misdemeanor charge of disorderly conduct, and on April 4, 2000, entered a plea of nolo contendere to which adjudication was withheld and a fine imposed. Petitioner has committed disqualifying offenses as defined by Chapter 435, Florida Statutes. Additionally, Petitioner is ineligible for exemption based on a failure to demonstrate any rehabilitative efforts and an appreciation of the seriousness of the criminal charges. Petitioner has not met her burden of clear and convincing evidence that she should not be disqualified from employment as required by Section 435.07(3), Florida Statutes. By mail at the last known address, Petitioner was notified of the time, date, and place of the final hearing and chose not to appear.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order denying Petitioner's request for exemption for employment, pursuant to Section 435, Florida Statutes. DONE AND ENTERED this 1st day of May 2001, in Tallahassee, Leon, County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 1st day of May, 2001. COPIES FURNISHED: Nikita Johnson 121 North Mercury Avenue Clearwater, Florida 33765 Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue Whether Respondent violated provisions of Chapter 400, Part III, Florida Statutes, and provisions of Chapter 58A-5, Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondents, Regina and Camille Savany (Savany), owned an assisted living facility known as King David Home. The facility, licensed for six residents, was located at 9403 S.W. 27th Street, Miami, Florida. On January 24, 1996, Arturo Bustamonte, an investigator for Petitioner, Agency for Health Care Administration (Agency), went to King David Home to check on some residents who had recently been moved to King David Home from a facility which had been closed by the Agency. When Mr. Bustamonte arrived at King David Home, he observed four residents who were sitting in chairs with strips of bed sheets tied loosely in a bow around their front waists. The residents' arms were free. At the request of Mr. Bustamonte, staff at King David Home untied the bed sheets from the residents; however, Mr. Bustamonte did not request the residents to remove the bed sheets themselves. According to the granddaughter of one of the residents, her grandmother was capable of removing the restraints without assistance. Staff at the facility had witnessed the residents removing the bed sheets without assistance prior to Mr. Bustamonte's visit. Mr. Bustamonte also observed two residents who had stage two decubiti. Savany claimed that one of the residents had developed his bedsores during a hospital stay and that the resident had been returned to the facility at nine o'clock the evening before Mr. Bustamonte visited the facility. The other resident had been placed in the facility by a mental health clinic, and Savany had requested both the clinic and the resident's daughter to remove the resident from the facility. Savany had neither contacted the Agency about removing the residents nor advised the Agency that the residents had stage two bedsores. Mr. Bustamonte called the Agency and asked that others be sent to the facility to make additional inspections because of the residents who were tied to the chairs and the two residents who had bedsores. The police were also called to the facility. Stan Silva, who is a Health Facility Evaluator with the Agency, went to King David Home pursuant to Mr. Bustamonte’s request for assistance. When Mr. Silva arrived at the facility, he observed two residents who appeared to be oblivious to their surroundings, and he had serious doubts as to whether the two residents could self preserve. No drill was conducted to determine whether the residents could self preserve. The granddaughter of one of the residents stated at the final hearing that her grandmother could self preserve in an emergency with the assistance of staff. Mr. Silva also observed two patients with stage two bedsores. On January 24, 1996, there was no one on staff at King David Home who had had CPR and first aid training. No one on duty was a Florida licensed nurse. On reviewing the few records at the facility, Mr. Silva and Mr. Bustamonte observed the contracts with the residents were not complete; some of the residents’ records did not contain health assessments, and there was no documentation to show who was in charge of the facility when the owners were not present. Not all of the records were maintained at the facility. The owner of the facility brought some records with him when he was called to the facility. While Mr. Bustamonte and Mr. Silva were at the facility, they noticed smoke coming from an area in the back of the facility where some construction was being done. Neither saw any flames, but both did see some ashes on the floor. Mr. Bustamonte requested staff at the facility to call the fire department. The facility did not have a written emergency management plan. While the fire department was there, the electricity to the facility was temporarily disconnected. During the inspection of the facility on January 24, the residents were not served a noon meal. Although the electricity was disconnected for approximately one to two hours, there was no reason that a cold lunch could not have been prepared for the residents or that a hot meal could not have been furnished from outside the facility. Staff did provide the residents with snacks. On January 24, 1996, there were at least nine residents in Kind David Home. Camille Savany testified that another facility which he owned had to be repaired and that he moved residents from that facility to King David Home while the repairs were being done. Based on the records available, the medications found at the facility, and personal property found at the facility, more than six residents were living at King David Home on January 24. Camille Savany admitted that the facility housed more than six residents. Mr. Bustamonte and a police officer visited the residence of Mr. and Mrs. Savany at 1099 Southwest 135th Court, Miami, Florida. When they arrived at the residence, they informed the woman who answered the door that they wanted to inspect the facility. The woman let them into the house and immediately took off running down the street, leaving elderly persons inside the residence unattended. There were ten elderly persons residing at the Southwest 135th Court address. No evidence was presented to establish what services were being performed for these persons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking license number 0008333 issued to Regina and Camille Savany, d/b/a King David Home. DONE AND ENTERED this 29th day of July, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 29th day of July, 1997. COPIES FURNISHED: Jean Claude Dugue, Esquire Agency For Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 Lawrence E. Besser, Esquire Samek and Besser 1925 Brickell Avenue, Suite D-207 Miami, Florida 33129 Sam Power, Agency Clerk Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308
Conclusions THIS CAUSE came on for consideration on the Notices of Intent to Deem Application Incomplete and Withdrawn from Further Review issued to the above-named Petitioners. (Ex. 1-2). The matter was referred to the Division of Administrative Hearings, which subsequently relinquished jurisdiction after the Petitioner dismissed her request for hearing. Being advised in the premises, it is: ORDERED: 1. The Petitioners’ change of ownership applications for assisted living facility licensure are WITHDRAWN. 2. The Notices of Intent are moot and thus are withdrawn. 3. The above-styled cases are closed. ] Filed October 7, 2013 12:25 PM Division of Administrative Hearings ORDERED in Tallahassee, Florida, on this 5 day of October , 2013.
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct 7 a Order was served on the below- named persons/entities by the method designated on this Va of ___¢7 e770) loef , 2013. Richard Shoop, Agency Clerk —/f 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 (Electronic Mail) John E. Bradley, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) The Honorable Robert S$. Cohen Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lynn Anderson All Seasons Assisted Living, LLC 509 West Verona Street Kissimmee, Florida 34741 (U.S. Mail) Lynn Anderson AnnWay Assisted Living, LLC 8207 Forest City Road Orlando, Florida 32810 (U.S. Mail)
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:
Conclusions Having reviewed the Administrative Complaints and the Notice of Intent to Deny, 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 Provider, Ana Home Care, Inc., pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaints and Election of Rights forms to the Provider. (Ex. 1-A; Ex. 1-B; 1-C; Ex. 1-D; and Ex. 1-E). The Agency issued the attached Notice of Intent to Deny and Election of Rights form (Ex. 1-F). 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: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The assisted living facility license of Ana Home Care, Inc. is REVOKED. All residents shall be removed within 30 days from the entry of this Final Order. In accordance with Florida law, the Provider is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Provider is advised of Section 408.810, Florida Statutes. In accordance with Florida law, the Provider is responsible for any refunds that may have to be made to the clients. The Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider 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. 3. An administrative fine and survey fee in the total amount of $88,000.00 is imposed against the Provider, Ana Home Care, Inc., but the collection of the fine is STAYED unless the Provider applies for an assisted living facility license at which time the $88,000.00 will become due and owing. ORDERED at Tallahassee, Florida, on this _/ A day of Jane ‘i — , 2012.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct sob of this Final Order was served on the below-named persons by the method designated on this_/7 “day of (eat Wa , 2012. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Lourdes A. Naranjo, Senior Attorney Facilities Intake Unit Office of the General Counsel (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Shaddrick Haston, Unit Manager | Revenue Management Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Arlene Mayo Davis, Field Office Manager Medicaid Accounts Receivable Areas 9, 10 and 11 Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Lawrence E. Besser, Esquire Medicaid Contract Management Samek & Besser Agency for Health Care Administration 1200 Brickell Avenue - Suite 1950 (Electronic Mail) Miami, Florida 33131 (U.S. Mail) John D. C. Newton, IT Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration (‘the Agency”), which finds and concludes as follows: 1. The Agency issued the Petitioner (“the Applicant”) the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. 2. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of $50.00 within 30 days of the entry of this Final Order. A check made payable to the “Agency for Health Care Administration” containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 3. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. DONE and ORDERED in Tallahassee, Florida, on this | ¥ day of N. > lerber , 2011. retary are Administration Filed November 22, 2011 9:57 AM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the below- named persons/entities by the method designated on this_/s day of LV lenfel ,2\1. Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Richard Shoop, Agency Clen Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Shaddrick Haston, Manager Assisted Living Licensure Unit Agency for Health Care Administration (Interoffice Mail) Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) Lafeta L. Coleman Myrtice Angels Senior Home Care, LLC 1061 Division Street Jacksonville, Florida 32209 (U.S. Mail) Carlton Enfinger, Esq. Office of the General Counsel Agency for Health Care Administration (nteroffice Mail) F. Scott Boyd Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
