Conclusions Having reviewed the administrative complaint dated April 20, 2010, attached hereto and incorporated herein (Exhibit 1), and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Exhibit 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. Respondent shall pay an administrative fine in the amount of $7,500.00. The administrative fine is due and payable within thirty (30) days of the date of rendition of this Order. 3. A check should be made payable to the “Agency for Health Care Administration.” The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 4. Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. 5. Each party shall bear its own costs and attorney’s fees. 6. The above-styled case is hereby closed. DONE and ORDERED this 2 day of Movete- , 2010, in Tallahassee, Leon County, Florida. Elizab udek, Interim Secretary Agency for H Care Administration 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. Copies furnished to: Stacey E. Meyer, Esq. Corporate Counsel Brookdale Senior Living Inc. 6737 W. Washington Street Suite 2300 Milwaukee, Wisconsin 53214 (U. S. Mail) Lourdes A. Naranjo, Esq. Assistant General Counsel Agency for Health Care Administration 8350 N. W. 52 Terrace - Suite 103 Miami, Florida 33166 (interoffice Mail) Finance & Accounting Agency for Health Care Administration 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) John D. C. Newton, II Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399 (U.S. Mail) Jan Milis Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Unit Manager Assisted Living Facility Unit Program Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the | method designated, on this the 3 day of a , 2010. Richard J. Shoop , Agency Clerk , Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 (850) 412-3630
Conclusions Having reviewed the Administrative Complaint, 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 Respondent 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 Respondent. (Ex. 1 and Ex. 2) The Election of Rights form advised of the right to an administrative hearing. The Respondent returned the Election of Rights forms selecting “Option 3.” (Ex. 3 and Ex. 4) On October 17, 2011, the Administrative Law Judge entered an Order consolidating both cases (Ex. 5). On February 6, 2012, the Administrative Law Judge entered an Order granting the Agency’s Motion to Relinquish Jurisdiction and Closing Files. (Ex. 6). On April 2, 2012, Richard J. Saliba, the Informal Hearing Officer, entered an Order Relinquishing Jurisdiction and Closing File based on Briarwood’s decision that it was abandoning its request for a hearing (Ex. 7). Based upon the foregoing, it is ORDERED: 1. The findings of fact and conclusions of law set forth in the Administrative Complaints are adopted and incorporated by reference into this Final Order. 2. The assisted living facility license of Briarwood Manor is REVOKED. The Respondent shall pay the Agency $35,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Filed June 26, 2012 11:00 AM Division of Administrative Hearings Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 ORDERED at Tallahassee, Florida, on this_A*e*-day of C Ste AL , 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 cpey otis Final Order was served on the below-named persons by the method designated on this 7S “day of , 2012. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Lourdes A. Naranjo, Senior Attorney Cindy Dookeran Office of the General Counsel Administrator Agency for Health Care Administration Briarwood Manor (Electronic Mail) 5721-5631 N. W. 28" Street Lauderhill, Florida 33313 (U.S. Mail) Katrina Derico-Harris Arlene Mayo-Davis Medicaid Accounts Receivable Field Office Manager Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Errol H Powell Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Administrative Law Judge Division of Administration Hearings (Electronic Mail) Richard Saliba, Esq. Informal! Hearing Officer Agency for Health Care Administration (Electronic Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2011005869 Return Receipt Requested: v. 7009 0080 0000 0586 1985 DDJJ LLC d/b/a BRIARWOOD MANOR, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW State of Florida, Agency for Health Care Administration (“AHCA”’), by and through the undersigned counsel, and files this administrative complaint against DDJJ LLC d/b/a Briarwood Manor (hereinafter “Briarwood Manor”), pursuant to Chapter 429, Part I, and Section 120.60, Florida Statutes (2010), and alleges: NATURE OF THE ACTION 1. This is an action to revoke the assisted living facility license of Respondent [License No.: 7478], pursuant to Section 408.815(1) (c) &(d), Florida Statutes, and Section 429.14(1) (e), Florida Statutes, and to impose an administrative fine of $14,500.00, pursuant to Sections 429.14 and 429.19, Florida Statutes (2010), for the protection of public health, EXHIBIT 1 safety and welfare. Section 429.14(1)(e), Florida Statutes, provides that the Agency may revoke an assisted living facility license if the facility is cited with three or more Class II deficiencies. The Agency has considered the factors outlined in Section 419.19(3), Florida Statutes, in imposing the penalty and in fixing the amount of the fine. JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2010), and Chapter 28-106, Florida Administrative Code (2010). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code (2010). PARTIES 4. AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing assisted living facilities pursuant to Chapter 429, Part I, Florida Statutes (2010), and Chapter 58A-5 Florida Administrative Code (2010). 5. Briarwood Manor operates a 34-bed assisted living facility located at 5621-5631 N. W. 28" Street, Lauderhill, Florida 33313. Briarwood Manor is licensed as an assisted living facility under license number 7478. Briarwood Manor was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes. COUNT I BRIARWOOD MANOR FAILED TO KEEP RESIDENTS’ MEDICATIONS LOCKED IN THE REFRIGERATOR. RULE 58A-5.0185(6) (b)1, FLORIDA ADMINISTRATIVE CODE (MEDICATION STANDARDS) CLASS II VIOLATION 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. Briarwood Manor was cited with five (5) Class II deficiencies as a result of an Operation Spot Check Appraisal visit that was conducted on May 20, 2011. 8. An Operation Spot check appraisal visit was conducted on May 20, 2011. Based on observation and interview, it was determined that the facility did not keep residents' #1 and #4's medications locked within the refrigerator in the kitchen to ensure residents did not ingest potentially harmful medications. The findings include the following. 9. In an observation on 5-20-11 at 9:30 AM in the main kitchen, inside a non-lockable refrigerator and not in a lockable container, there were 2 boxes containing Risperdal 5O0mcg suspension, each marked for intramuscular administration for residents #1 and resident #4. 10. During this observation, it was determined the area where this refrigerator was located could not be locked and it was accessible by the general facility population of residents without encumbrances. ll. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.0185(6)(b)1, Florida Administrative Code, herein classified as a Class II violation, which warrants an assessed fine of $1,000.00 and gives rise to the revocation of the assisted living facility license. COUNT II BRIARWOOD MANOR FAILED TO MAINTAIN A SAFE AND SANITARY FOOD SERVICE AND KITCHEN AREA. RULE 58A-5.020(1) (b), FLORIDA ADMINISTRATIVE CODE (NUTRITION AND DIETARY STANDARDS) CLASS II VIOLATION 12. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 13. An Operation Spot check appraisal visit was conducted on May 20, 2011. Based on observations, it was determined the facility failed to maintain a safe and sanitary food service and kitchen area. The findings include the following. 14. Observations on 5/20/11 at approximately 9:15 AM revealed the following concerns in the kitchen area: a. The kitchen floor was dirty throughout, with a heavy layer of soil built up behind the three compartment sink area, equipment, and food storage area. b. The kitchen stovetop, cabinet under sink, food equipment shelving, potholders, utensil drawers, switch plates, walls and window sills were dirty. c. Cutting boards were blackened and deeply scored. d. Several kitchen refrigerators were missing thermometers. The microwave oven door was rust laden and the microwave was soiled in the interior. e. The deep chest freezer, which was full of frozen food, had a large build-up of ice, needed defrosting, and had no thermometer in the interior. f. The dirty window sill directly about the 3 compartment sink continued uncovered single serve plastic utensils, dirty scrub pads, brushes, measuring cups and a ladle. g. The kitchen back door was not vermin-proof as the door did not fit in the frame tightly. Live roaches were observed in the kitchen. h. There were paints and chemicals stored within the food storage room. i. Approximately 10 lbs. of ground beef was left in a sheet pan defrosting on a kitchen table. 15. There was a bucket of dirty dishes on the table alongside the ground meat. Various clean cooking vessels were stored on a shelf underneath this table. 16. Note: A representative from the Department of Health was on the premises on 5/20/11 and issued an unsatisfactory food service inspection report to the facility. 17. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.020(1) (b), Florida Administrative Code, herein classified as a Class II violation, widespread, which warrants an assessed fine of $5,000.00 and gives rise to the revocation of the assisted living facility license. COUNT III BRIARWOOD MANOR FAILED TO MAINTAIN A RESIDENTIAL AREA WHICH PROMOTED A RESIDENTIAL, HOMELIKE, AND SAFE CARING ENVIRONMENT FOR RESIDENTS; FAILED TO PROVIDE A SAFE AND DECENT ENVIRONMENT WITH RESPECT TO PERSONAL DIGNITY AND PRIVACY; AND FAILED TO ENSURE THAT FURNITURE AND FURNISHINGS WERE CLEAN AND IN GOOD REPAIR SECTION 429.28(1) (a), FLORIDA STATUTES RULE 58A-5.023(3) (a)1. & 2., FLORIDA ADMINISTRATIVE CODE (PHYSICAL PLANT STANDARDS) CLASS II VIOLATION 18. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 19. An Operation Spot check appraisal visit was conducted on May 20, 2011. Based on observations and interviews, it was determined that the facility failed to maintain a residential area which promoted a residential, homelike, and safe care environment for the census of 27 residents, and failed to provide a safe an decent environment with respect to dignity and privacy as required by the Residents’ Bill of Rights. The facility also failed to ensure that furniture and furnishings were clean, functional, and in good repair. The findings include the following. 20. During the tour of the facility on 05/21/11 at 9:30 a.m. in the resident bathroom located in Building A adjacent to room 5, the bathroom door was observed to be open. There were residents observed in the vicinity. Inside the bathroom was a large hole in the tile wall where the sink used to be. There was a pipe coming out of the hole in the wall and a large bucket positioned under the pipe as the pipe was leaking water. The bucket was observed to be full of dirty water. The hole in the wall had jagged edges, was approximately two to three feet wide, about two feet high and at least a foot or more deep, exposing bare blackened dirt and debris. 21. The area also was moisture laden from the leaking pipe. There were broken tiles littering the area, exposed metal piping and water valves from the missing sink. The floor under the bucket was also missing several tiles (a square area of approximately two feet by two feet) and exposing the brown sub floor. The brown sub floor was noted to be blackened with biogrowth. The bathroom door was observed open with no barrier or signage to alert residents, staff and visitors to the hazard. 22. Adjacent to the bathroom in Building A by room 5 was a storage closet that was easily opened, and not locked. Inside the closet there were construction materials, a green garden hose, buckets, and 2 containers of pesticides. 23. The maintenance staff member was interviewed on 05/20/11 at 9:45 a.m. He said that he is in the process of working on the sink and confirmed that the bathroom door was open. In addition, he confirmed that there was no lock on the storage closet adjacent to the bathroom and said he would find a way to lock it. The facility has a Limited Mental Health license and the census on the day of the survey was 27. 24. During observations on 05/20/11 at 10:30 a.m. in the laundry room in Building B there was a ladder and construction materials observed stored behind the door. There was a silver air conditioning (a/c) duct running along the wall just below the ceiling that was noted to have a large hole, exposing the insulation. The edges were blackened. There was a large shelving unit with folded blankets and comforters stored right below the a/c duct and next to the ladder and construction materials. In addition, the a/c vent just above the clean linens was observed to be dirty, and blowing directly onto the folded linens. The laundry room floor was filthy. This was brought to the attention of the maintenance staff member. 25. During observations on 05/20/11 at approximately 10:45 a.m. in the resident bathroom in Building A on the North side of the building the tub was observed to have no faucet. Instead there was just a bare metal thin spout with a sharp metal end coming out of the tub. In addition, the tub was very dirty. This was brought to the attention of the maintenance staff member. 26. On 05/20/11 at approximately 10:00 a.m. in Building B the bathroom outside room 11 was observed to be very dirty with a dried brownish substance smeared in places on the floor. On 05/20/11 at 11:00 a.m., about an hour later, the substance was noted to still be there. 27. Observations of Room 3 and 4 at approximately 10:30 AM on 5/20/11 revealed the rooms were adjoined together through the closet opening of room 3. A torn plastic shower curtain was hung at the opening in room 3 and the resident's bed in room 3 was placed in front of the shower curtain blocking access between rooms 3 and 4. 28. Room 4 had no window to the outside and was occupied Observations of room 4 on 5/20/11 revealed the by resident #4. room was dark, dreary, dimly lit, musty, warm, and difficult to maneuver around in. There was no closet either in room 3 and 4. 29. A referral was made to the City of Lauderhill Code Enforcement officer, who was present during the survey. The Code Enforcement Unit issued the facility a "Notice of Violation" on 5/20/11 with numerous violations. 30. A referral was made to the Broward County Health Department. Their representative arrived at the facility during the survey and issued an unsatisfactory inspection report to the facility. 31. During the tour of the facility on 05/20/11 at 9:30 a.m. the following was observed with the maintenance staff 32. In Building A room 4, there was a lamp with no shade and the bare bulb was exposed. 33. In Building A's day room, the window curtains were observed to be soiled and not hanging properly as many of the curtain hooks were not attached to the rod and hanging loosely. In the bathroom on the North side of Building A the vanity cabinet was observed to be in disrepair as it was separating from the wall. 34. In Building B, the bathroom off the day room was observed to have window blinds that were in disrepair. The sink vanity was in disrepair as the veneer was peeling off and worn. The toilet tank lid had a large crack in the middle. The shower 10 curtain was torn and the floor was very dirty with black scuff marks and a large puddle of water. 35. In Building B, the bathroom adjacent to room 11 was very dirty including old feces on the floor. 36. A leather sofa in the common area in Building B had a large tear in the cushion. 37. The bathroom outside room 13 was observed to have a very dirty floor, a hole behind the toilet, and a rusty opened can of food was found stored inside the mirrored vanity door. 38. The administrator was interviewed on 05/20/11 at 11:30 a.m. and no additional information was provided. 39. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.023(3)(a)l. & 2., Florida Administrative Code, and Section 429.28(1) (a), Florida Statutes, herein classified as a Class II violation, widespread, which warrants an assessed fine of $5,000.00 and gives rise to the revocation of the assisted living facility license. 11 COUNT IV BRIARWOOD MANOR FAILED TO ENSURE THAT THE DOORS WERE FUNCTIONAL AND IN GOOD WORKING ORDER, AND THAT PEELING PAINT WAS REPAIRED OR REPLACED. RULE 58A-5.023(3) (a)3, FLORIDA ADMINISTRATIVE CODE (PHYSICAL PLANT STANDARDS) CLASS II VIOLATION 40. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 41. An Operation Spot check appraisal visit was conducted on May 20, 2011. Based on observations and interviews, it was determined that the facility failed to ensure that doors were functional and in good working order, and that peeling paint was repaired or replaced. The findings include the following. 42. During the tour of the facility on 05/20/11 at 9:30 a.m. the following was observed: a. In Building A room 4, observations revealed the room had a door to the outside of the facility. The door was observed to be ill fitting, so that a large gap was between the door and the door jamb. b. In Building B room 10, there was a door to the outside that had a large gap between the door and the door jamb, allowing the potential for insect infestations. 12 c. In Building B room 14, there was a door to the outside that did not fit the door jamb so that there was a large gap. d. In Building B, the bathroom by the large paint storage closet was labeled with a sign that said the bathroom was out of order due to the bathtub leaking. 43. During the tour of the facility on 05/20/11 at 09:30 a.m. in Building A room 4, there was peeling paint on the walls. In addition, throughout Building B the walls were observed to be patched and not painted over in several places throughout the building. The maintenance staff member was present and confirmed the findings. 44, The maintenance staff person was present during the observations on 05/20/11 and confirmed the findings. 45. Based on the foregoing facts, Briarwood Manor violated Rule 58A~5.023(3) (a)3, Florida Administrative Code, herein classified as a Class II violation, patterned, which warrants an assessed fine of $2,500.00 and gives rise to the revocation of the assisted living facility license. 13 COUNT V BRIARWOOD MANOR FAILED TO HAVE A SATISFACTORY HEALTH DEPARTMENT INSPECTION. RULE 58A-5.016(6), FLORIDA ADMINISTRATIVE CODE RULE 58A-5.0161(1), FLORIDA ADMINISTRATIVE CODE (PHYSICAL PLANT STANDARDS) CLASS II VIOLATION 46. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 47. An Operation Spot check appraisal visit was conducted on May 20, 2011. Based on record reviews and interviews, it was determined that the facility failed to have a satisfactory health department inspection. The findings include the following. 48. During observations of multiple physical plant issues at the facility, a referral was made to the Broward County on 05/20/11 at approximately 9:45 a.m. The Health Department representative arrived at the facility and was apprised of all of the findings of the survey team. At the conclusion of their visit the facility was issued an unsatisfactory Group Care and Food Service inspection on 05/20/11. 49. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.016(6), Florida Administrative Code, and Rule 58A- 5.0161(1), Florida Administrative Code herein classified as a Class II violation, which warrants an assessed fine of $1,000.00 14 and gives rise to the revocation of the assisted living facility license. CLAIM FOR RELIEF WHEREFORE, the Agency requests the Court to order the following relief: 1. Enter a judgment in favor of the Agency for Health Care Administration against Briarwood Manor on Counts I through vi. 2. Revoke the assisted living facility license [License No.: 7478] of Briarwood Manor on Counts I through V for the violations cited above. 3. Assess an administrative fine of $14,500.00 against Briarwood Manor on Counts I through V for the violations cited above. 4. Assess costs related to the investigation and prosecution of this matter, if the Court finds costs applicable. 5. Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2010). Specific options for administrative action are set out in the attached Election of Rights. All 15 requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, MS #3, Tallahassee, Florida 32308. RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO RECEIVE A REQUEST FOR A HEARING WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. IF YOU WANT TO HIRE AN ATTORNEY, YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY IN THIS MATTER Komen @ koe an td Lourdes A. Naranjo, Esq. Fla. Bar No.: 997315 Assistant General Counsel Agency for Health Care Administration 8333 N.W. 537? Street Suite 300 Miami, Florida 33166 305-718-5906 Copies furnished to: Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration 5150 Linton Blvd. - Suite 500 Delray Beach, Florida 33484 (U.S. Mail) 16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Certified Mail, Return Receipt Requested to Cindy Dookeran, Administrator, Briarwood Manor, 5621-5631 N. W. 28th Street, Lauderhill, Florida 33313 on a \ this2Z@ "day of , 2011. Dr lie, Glew orf Ourdes A. Naranjo, Esq. 17 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: DDJJ LLC d/b/a Briarwood Manor AHCA No.: 2011005869 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)____—sid dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) I hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: 0 Dates Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2011009335 Return Receipt Requested: v. 7009 0080 0000 0586 2180 DDJJ LLC d/b/a BRIARWOOD MANOR, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW State of Florida, Agency for Health Care Administration (“AHCA”’), by and through the undersigned counsel, and files this administrative complaint against DDJJ d/b/a Briarwood (hereinafter “Briarwood Manor”), pursuant to Chapter 429, Part I, and Section 120.60, Florida Statutes (2010), and alleges: NATURE OF THE ACTION 1. This is an action to revoke the assisted living facility license of Respondent [License No.: 7478], pursuant to Section 408.815(1) (c)&(d), Florida Statutes, and Section 429.14(1) (e), Florida Statutes, and to impose an administrative fine of $21,000.00 pursuant to Sections 429.14 and 429.19, Florida Statutes (2010), for the protection of public health, EXHIBIT 2 safety and welfare. Section 429.14(1)(e), Florida Statutes, provides that the Agency may revoke an assisted living facility license if the facility is cited with one or more Class I deficiencies. Section 408.815(1) (c)&(d), Florida Statutes, provides that the Agency may revoke a license for a violation of “this part, authorizing statues, or applicable rules” or “for a demonstrated pattern of deficient practice”. The Agency has considered the factors outlined in Section 419.19(3), Florida Statues, in imposing the penalty and fixing the amount of the fine. JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2010), and Chapter 28-106, Florida Administrative Code (2010). 3. Venue lies pursuant to Rule = 28-106.207, Florida Administrative Code (2010). PARTIES 4. AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing assisted living facilities pursuant to Chapter 429, Part I, Florida Statutes (2010), and Chapter 58A-5 Florida Administrative Code (2010). 5. Briarwood Manor operates a 34-bed assisted living facility located at 5621-5631 N. WwW. 28° Street, Lauderhill, Florida 33313. Briarwood Manor is licensed as an assisted living facility under license number 7478. Briarwood Manor was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes. 6. On August 17, 2011, the Agency entered an Immediate Moratorium on Admissions (AHCA No.: 20110090890) on the basis that the Agency determined that the current practices and conditions at Briarwood Manor present a threat to the health, safety, or welfare of the residents of the facility; present an immediate serious danger to the public, health, safety, or welfare; and present an immediate or direct threat to the health, safety, or welfare of the Residents who reside at Briarwood Manor. COUNT I BRIARWOOD MANOR FAILED TO PROVIDE APPROPRIATE SUPERVISION FOR EACH RESIDENT INCLUDING GENERAL AWARENESS OF THE RESIDENT’S WHEREABOUTS, AND A WRITTEN RECORD AFTER A MAJOR INCIDENT. RULE 58A-5.0182(1), FLORIDA ADMINISTRATIVE CODE (RESIDENT CARE - SUPERVISION STANDARDS) CLASS I VIOLATION 7. AHCA re-alleges and incorporates paragraphs (1) through (6) as if fully set forth herein. 8. Briarwood Manor was cited with two (2) Class I deficiencies and one (1) Class II deficiency as a result of a survey conducted on August 11, 2011. On August 17, 2011, an Immediate Moratorium on Admissions was served on Briarwood Manor 9. A survey was conducted on August 11, 2011. Based on Based on interview and record review, it was determined that the facility failed to provide appropriate supervision for each resident including: General awareness of the resident's whereabouts and a written record, updated after a major incident for 1 of 3 sampled residents reviewed (Resident #1). The findings include the following: 10. Record review on 8/11/11 revealed Resident #1 was admitted to the facility on 1/22/09 with a diagnosis to include schizophrenia and renal cell cancer. A facility note on 7/20/11 documented the resident did not return to the facility until 2:00 AM. Note on 7/23/11 documented the resident did not return to the facility until 11:30 PM. On 7/28/11 the resident left the facility. A Resident Elopement Prevention Drill Form dated 7/29/11 at 7:00AM did not identify the employees who noticed the resident missing, the time she was last seen, employees who assisted in the search or a description of the resident. Further review of the record did not contain an incident report. 11. During an interview with the administrator on 8/11/11 at 10:45 AM, she stated the facility has not identified any residents who may be at risk for elopement. She also stated the residents are not required to sign in or out when they leave the property as it is all done verbally. The surveyor was unable to determine the last time Resident #1 was seen at the facility. 12. A review with the administrator of the facility staffing schedule identifies one staff member working the 11:00 PM-7:00 AM shift. Two days a week the staff member working the overnight shift works a 16 hour double shift. During the review the administrator stated this is the facility's permanent schedule. 13. A review with the administrator of the policy and procedure manual did not identify a policy regarding resident supervision. A review of the elopement policy revealed the facility will: "conduct elopement drills with all the staff twice a year to protect our residents from elopement." "Any elopement will be documented in the resident file along with a copy of the adverse incident report. “A review of the elopement drills did not identify a drill in 2011 and only one drill in 2010. 14. During an interview on 8/11/11 at 11:46 AM with several unsampled residents, they were asked if they had to notify anyone when they leave the facility's property. All the residents interviewed stated they did not need to notify anyone, and they just needed to be back by 11:00 PM. As of 8/11/11 at 3:00 PM Resident #1 has not been found. 15. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.0182(1), Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $10,000.00. COUNT IT BRIARWOOD MANOR FAILED TO HAVE MEDICATIONS AVAILABLE TO ADMINISTER IN ACCORDANCE WITH HEALTH CARE PROVIDER’S ORDER OR PRESCRIPTION LABEL. RULE 58A-5.0185(4)&(5), FLORIDA ADMINISTRATIVE CODE (MEDICATION ADMINISTRATION STANDARDS) CLASS II VIOLATION 16. AHCA re-alleges and incorporates paragraphs (1) through (6) as if fully set forth herein. 17. A survey was conducted on August 11, 2011. Based on record review and interview, it was determined that the facility failed to have medications available to administer in accordance with a health care provider's order or prescription label, for 1 of 3 sampled residents reviewed (Resident #3). The findings include the following. 18. Resident #3 was admitted to the facility on 6/3/11 with a diagnosis to include Psychosis and COPD. An 1823 health assessment form completed by the physician on 6/14/11 identified the residents medications to include Simvastin 40 mg 1 tab daily and Risperidone 4 mg 1 tablet HS. A review of the medication observation record (MOR) did not list the medications. 19. During an interview on 8/11/11 at 2:30 PM with the med tech, it was confirmed the MOR did not include Simvastin 40 mg 1 tab daily or Risperidone 4 mg 1 tablet HS. She acknowledged the facility did not have the medications and stated they were probably discontinued. The facility was not able to provide evidence the physician discontinued any of the resident's medications. The facility must maintain a daily medication evaluation record (MOR) for each resident who receives assistance with self-administration of medication or medication administration. The MOR must include a chart recording each time the medication is taken, any missed dosages, refusals to take medication, or medication errors. The MOR must be immediately updated each time the medication is offered or administered. 20. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.0185(4)&(5}, Florida Administrative Code, herein classified as a Class II violation, which warrants an assessed fine of $1,000.00. COUNT III BRIARWOOD MANOR FAILED TO ESTABLISH A RISK MANAGEMENT AND QUALITY ASSURANCE PROGRAM. SECTION 429.23, FLORIDA STATUTES RULE 58A-5.0241, FLORIDA ADMINISTRATIVE CODE (RISK MANAGEMENT AND QUALITY ASSURANCE STANDARDS) CLASS I VIOLATION 21. AHCA re-alleges and incorporates paragraphs (1) through (6) as if fully set forth herein. 22. A survey was conducted on August 11, 2011. Based on record review and interview, it was determined that the facility failed to establish a risk management and quality assurance program, the purpose of “which is to assess resident care practices, facility incident reports, and adverse incident reports, for 2 of 3 records reviewed (Resident #1 and #2). The findings include the following. 23. Record review on 8/11/11 revealed Resident #1 was admitted to the facility on 1/22/09 with a diagnosis to include schizophrenia and renal cell cancer. A facility note on 7/20/11 documented the resident did not return to the facility until 2:00 AM. Note on 7/23/11 documented the resident did not return to the facility until 11:30 PM. On 7/28/11 the resident left the facility. A Resident Elopement Prevention Drill Form dated 7/29/11 at 7:00 AM did not identify the employees who noticed the resident missing, the time she was last seen, employees who assisted in the search or a description of the resident. Further review of the record did not contain an incident report. 24. During an interview with the administrator on 8/11/11 at 10:45AM, she stated the facility has not identified any residents who may be at risk for elopement. She also stated she faxed an adverse incident report to the agency on 7/29/11 but could not provide confirmation. At 10:55 AM the AHCA complaint unit was contacted and confirmed the agency had not received the required notification regarding the elopement. 25. The surveyor was unable to determine the last time Resident #1 was seen at the facility. As of 8/11/11 at 3:00 PM Resident #1 has not been found. 26. Resident #2 was admitted to the facility on 11/16/93 with a diagnosis to include Diabetes, COPD, and Neuropathy. A note dated 3/27/11 documents the resident was dizzy and fell. The resident was transferred to the hospital and returned to the facility on 3/30/11. During an interview on 8/8/11 at 1:45 PM with the administrator and med tech, it was revealed the med tech stated 911 was contacted and the resident was transported by ambulance to the local hospital. She could not remember what happened to the resident and did not complete an incident report. 27. Based on the foregoing facts, Briarwood Manor violated Section 429.23, Florida Statutes, and Rule 58A-5.0241, Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $10,000.00. CLAIM FOR RELIEF WHEREFORE, the Agency requests the Court to order the following relief: 1. Enter a judgment in favor of the Agency for Health Care Administration against Briarwood Manor on Counts I through IIl. 2. Revoke the assisted living facility license [License No.: 7478] of Briarwood Manor for the citations cited in counts I through III. 3. Assess an administrative fine of $21,000.00 against Briarwood Manor on Counts I through III for the violations cited above. 4. Assess costs related to the investigation and prosecution of this matter, if the Court finds costs applicable. 5. Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2010). Specific options for administrative action are set out in the attached Election of Rights. All 10 requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, MS ~= 4#3, Tallahassee, Florida 32308. RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO RECEIVE A REQUEST FOR A HEARING WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. IF YOU WANT TO HIRE AN ATTORNEY, YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY IN THIS MATTER vo Ve vile, blwraus.) Lourdes A. Naranjo, Esq. Fla. Bar No.: 997315 Assistant General Counsel Agency for Health Care Administration 8333 N.W. 53°? Street Suite 300 Miami, Florida 33166 Copies furnished to: Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration 5150 Linton Blvd. - Suite 500 Delray Beach, Florida 33484 (U.S. Mail) 11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Certified Mail, Return Receipt Requested to Cindy Dookeran, Administrator, Briarwood Manor, 5621-5631 N. W. 28° Street, Lauderhill, Florida 33313 on this [7 aay of ih. , 2011. Lourdes A. Naranjo, Esq. 12 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: DDJJ LLC d/b/a Briarwood Manor AHCA No.: 2011009335 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) _ I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued.that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) I hereby certify that ] am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC 000 p.1 Jan170106:28p STATE OF FLORIDA ; to. AGENCY FOR HEALTH CARE ADMINISTRATION Fr | 1 rE D RE: DDJJ LLC d/bfa Briarwood Manor AHCA No.: 2011005869 _ AGE eva, ERK ; 20H AUG Te ECTION OF RIGHTS BPI) This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice jof Entent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Cd maplaint. pour Election of Rights must be returned by mgit or by fax within 22 days of the dav you receive the attached Notice of Intent to Impose a Lite /Fes. Notice of Intent to Impose a Late Fin Administrative Complat Hf your Election of Rights with your selected optjon is not received by AHCA within twenty- one (21) days from the date you received this noticd of proposed action by AHCA, you will have given up your right to contest the Agency's proposed < and a fial order will be issued. (Please use this form unless you, your attomey or yo feprescntative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Fk rida Administrative Code.) PLEASE RETURN YOUR CTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration j Attention: Agency Clerk ; 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT Q GF THESE 3 OPTIONS OPTION ONE (1). I admit to the allegatipns of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and | waive my right to object and to have a hearing, | understand that by}giving up my right to a hearing, a final order will be issued that adopts the proposed agency actionjand imposes the penalty, fine or action. OPTION TWO (2) L adunit to the allegati$ns of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent td Impose a Late Fine, or Administrative Complaint, but J wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Flocida Statutes) where I may submit testimony and written evidence to the Agoncy to show that -the proposed admuinistrative action is too severe or that the fine should be reduced. ; OPTION THREE (3)_X 1 dispute the allegatiqas of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent td Impose a Late Fine, or Administrative Complaint, and 1 request a formal hearing (pursupnt to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by thd Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (4), by itself, is NOT sufficient te obtain a forma! hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Se¢tion 120.57(1), Florida Statutes. It must be + 1 srg CeLbt Le ezine EXHIBIT 3 000 p2 Jan 1704 06:28» received by the Agency Clerk at the address above Within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to tbe requirements of Rule 28- 106.2015, Florida Administrative Code, which requifes that it contain: 1. Your name, address, and telephone number, ang the name, address, and telephone number of your representative or Lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4, A statement of all disputed issues of material fapt. If there are none, you soust state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: ALF (ALF? nursing hoche? medical equipment? Other type?) Licensee Name: BATARWoAD MANOR | License number: Contact person: SNE DookFA AN ‘DUN Name Title Address; °°71 maw? 2aty S71 name pL 33313 Street and number City Zip Code Telephone No. 784-135: #179 Pax No, 44 -486-30}) |Email(optional) [hereby certify that I am duly authorized to submit tliis Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licengee referred to above. Sign od: Cu ws, Date: “At ‘ PrintName:_ Cand) —_Dot/tep.An/ Title:_Abran Late fee/fine/AC 6rd Bebb bE BZ ine 99/22/2011 3:26PM FAX 905919 PHARHCO {21000170008 - Ye \. . STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: DDIJ LLC d/b/a Briarwood Manor AHCA No.: 2011009436 ae wa) ty _ ELECTION OF RIGHTS 2 By, ee Co ceeeecee ee OP, This form is attached to a proposed action ‘by the “Agency for Health Care Administration en, ‘The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint, vecelve ve attached Notice of inte ‘ent ty Impose 2 Late 2 Fee, Notice of ‘Tatent ‘0 Impose a Late Fine or Adminisirative Complaint, jf tf If your Election of Rights with your selected option Is not received od By AHCA within twenty. _ one ys trom the date you received this notice of propos lion Dy , you will have given up your right to contest the Agency's proposed action and a final order will be issued. - (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for ilealth Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 ° Tallahassee, Florida 32308, Phone: 850-412-3630 Fax: 850-921-0158, PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONF (i) T admit to the allegations of factsjand law contained in the Notice of Intent to Ympose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing, T understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the nally, fine or action. OPTION TWO (2) _ lL admit to the allegations of facts contained i in the Notice of Intent to, Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an Informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)_ 46 J dispute the allegations of fact contained in the Notice of Intent to. Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaini, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. : Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain » formal hearing. You also must file a written petition in order to obtain a formal hearing bofore the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be EXHIBIT 4 VOefeVll S.cOrM FAA suOMIET PHARMUU (g0902/0008 received by the Agency Clerk at the address above within 21 days of your recoipt of this proposed + administrative action, The request for formal hearing must conform to the roquirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: L. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if arty. : - ; Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees, a Ligense type: ALE (ALF? nursing home? medical equipment? Other type?) ? Contact person: cxeupy DoockErans ADAENE SRA TDR. . Name - Title Address S62! NW gerd Sr Lauber aril AL 333) Street and number : City Zip Code Telephone No, 98V - 735" Pax No. 8Y~ ¥95_ Rmail(optional) FPF BEY) : I hereby certify that [ am duly authorized to submit this Notice of Election of Rights to the Agency for Health Cure Administration on behalf of the licensee referred to above. Signed: Grip). Date; ahs) : i Print Name:_G2N0 nokeRan rite Abu, Late fee/fine/AC STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS AGENCY FOR HEALTH CARE ) ADMINISTRATION, ) ) Petitioner, ) ) vs. ) Case Nos. 11-4432 ) 11-5103 DDJJ, LLC d/b/a BRIARWOOD ) MANOR, ) ) Respondent. ) ) ORDER OF CONSOLIDATION These cases having come before the undersigned on the Agreed Motion to Consolidate, filed October 14 and 17, 2011, and the undersigned having reviewed the records in these cases, it is, therefore, ORDERED that: 1. DOAH Case Nos. 11-4432 and 11-5103 are consolidated pursuant to Florida Administrative Code Rule 28-106.108. 2. The style of this cause is amended as reflected above. DONE AND ORDERED this 17th day of October, 2011, in Tallahassee, Leon County, Florida. Erol A Verb ERROL H. POWELL 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 EXHIBIT 5_ Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2011. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Agency for Health Care Administration 8333 NW 53rd Street, Suite 300 Miami, Florida 33166 Cindy Dookeran Briarwood Manor 5631 Northwest 28th Street Lauderhill, Florida 33313 Cindy Dookeran DDJJ, LLC d/b/a Briarwood Manor 5621 Northwest 28th Street Lauderhill, Florida 33313 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS AGENCY FOR HEALTH CARE ) ADMINISTRATION, ) ) Petitioner, ) ) vs. ) Case Nos. 11-4432 ) 11-5103 DDJJ, LLC d/b/a BRIARWOOD ) MANOR, ) ) Respondent. ) ) ORDER CLOSING FILES AND RELINQUISHING JURISDICTION These causes having come before the undersigned on Petitioner's Motion to Relinquish Jurisdiction, filed January 25, 2012, to which Respondent did not file a response, having been provided an opportunity to do so, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for February 27 and 28, 2012, is canceled. 2. The files of the Division of Administrative Hearings are closed. Jurisdiction is relinquished to the agency. EXHIBIT G_ DONE AND ORDERED this 6th day of February, 2012, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Euol A Veurll ERROL H. POWELL 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 6th day of February, 2012. Agency for Health Care Administration 8333 NW 53rd Street, Suite 300 Miami, Florida 33166 Cindy Dookeran Briarwood Manor 5631 Northwest 28th Street Lauderhill, Florida 33313 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA NO.: 2011009335:2011005869 CASE NO.: 12-106PH vs. DDJJ LLC d/b/a BRIARWOOD MANOR, Respondent. / ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause came before the undersigned upon receipt from the Respondent informing of the withdrawal of the request for a hearing. Based upon this notice from the Respondent informing that the facility is closed the Respondent specifically informs that the Respondent no longer requests a hearing. A copy of this writing from the Respondent is attached hereto as Exhibit ‘A’ and by reference made a part hereof. The undersigned being fully advised, it is, therefore, ORDERED that: 1. This informal hearing file is closed and jurisdiction is relinquished to the Agency for Health Care Administration for entry of final order. DONE AND ORDERED at Tallahassee, Leon County, Florida, this and day of April, 2012. Agency for Health Care Administration Rickard. Joseph. ‘Sahiba Richard Joseph Saliba Informa! Hearing Officer EXHIBIT 7_ Copies furnished to: Lourdes Naranjo, Esquire Agency for Health Care Administration (Electronic Mail) Ms. Cindy Dookeran DDJJ LLC d/b/a BRIARWOOD MANOR 5621 NW 28" Street Lauderdale Hill Fl 33313 rwood Manor Phone: 954-735-8989 Fax: 954-485-3641 Reference to case #: 12-106PH. AHCA Nos. 20110056869 & 2011009335. Formerly DOAH Nos. 41-4432 & 11-5103. ATTN: Mr. Saliba rm you that Briarwood Manor was officially closed and is as of 3/21/12. Briarwood Manor is no longer interested in This letter is to inf no longer in operatio defending this case. Thank you a dobg Cindy Dookeran
Conclusions Having reviewed the following administrative complaints: #2007006069 dated January 17, 2008; #2007010233, dated January 22, 2008; #2007007823, dated January 22, 2008, and #2008006525, dated July 24, 2008, attached hereto and incorporated herein (Ex. 1, 1A, 1B, and lC), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Filed July 27, 2009 3:13 PM Division of Administrative Hearings. Respondent shall pay an administrative fine in the amount of $10,750.00 and a survey fee in the amount of $500.00. The administrative fine and survey fee are due and payable within thirty (30) days of the date of rendition of this Order. Checks should be made payable to the "Agency for Health Care Administration." The check, along with a reference to these case numbers, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. Respondent's petition for formal administrative proceedings is hereby dismissed. Each party shall bear its own costs and attorney's fees. The above-styled cases are hereby closed. DONE and ORDERED this oi" ay of in Tallahassee, Leon County, Florida. , 20 t'f, Agency for Health Care Administration 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. Copies furnished to: Alice Barton Rothman Bayview Retirement Home 2625 NE 13 th Court Fort Lauderdale, Florida 33304 (U. S. Mail) Finance & Accounting Agency for Health Care Administration Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Tria Lawton-Russell Assistant General Counsel Agency for Health Care Administration 8350 NW 52nd Terrace, Suite #103 Miami, Florida 33166 (Interoffice Mail) Hon. Eleanor M. Hunter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (U.S. Mail) Assisted Living Unit Agency for Health Care Administration 2727 Mahan Drive, MS #30 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named persor,{3J and entities b U.S. Mail, or the method designated, on this the .zz._ of-"""= =--------' 2007.' Richard Shoop, Agency Cle Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 STATE OF FLORIDA
The Issue The issue in this case is whether Petitioner and his family are entitled to be provided developmental services through Respondent.
Findings Of Fact Petitioner Wayne McDuffy (“Wayne”), presently age 9, is mentally retarded as a result of Down’s Syndrome. It is undisputed that he is eligible to receive developmental services through Respondent Department of Children and Families (“DCF”). Wayne has been known to DCF since at least 1996 or 1997 and has received services at some time(s) in the past. From February 2000 through the present, however, Wayne has not received services. Nevertheless, at times during this latter period, as will be discussed below, Wayne has been a “client” of DCF. In February 2000, Wayne’s mother, Deborah Moore (“Moore”), made application to DCF, on behalf of her son, for developmental services. She desired, and continues to request, personal care assistance and residential placement to help manage Wayne, who is occasionally violent and aggressive towards others, including Moore’s younger child. Funding for the services that DCF provides to the developmentally disabled is available though the Individual Family Supports Program (“IFS”), which the state pays for out of general revenue, and the Home and Community-Based Services Waiver Program (the “Waiver”), for which the Florida Medicaid Program (“Medicaid”) pays with federal and state monies. When Moore applied for services in February 2000, she did not know about, or appreciate the differences between, these two funding sources. Some time after February 2000, probably in the summer of that year, a DCF caseworker verbally notified Moore that Wayne had been accepted into the Waiver and would soon be receiving services as a client of DCF. Moore kept in telephone contact with DCF and, in September 2000, verbally notified the local office that she was moving to a new address, which she provided, together with a phone number. Services, however, never commenced. Meanwhile, on October 3, 2000, DCF assigned Wayne’s case to an interim support coordinator at Advantage in Support, Inc. (“Advantage”), a third-party provider under contract with DCF. An employee of Advantage placed telephone calls to, and personally visited, Moore’s old residence, i.e. the one from which she and her family had moved in September 2000. That phone number had been disconnected, however, and no one came to the door at the house where Moore and her family no longer lived.1 On November 2, 2000, Advantage returned Wayne’s file to DCF. Back at DCF, Wayne’s file came into the hands of Thelma Bass (“Bass”), then a Medicaid Waiver Specialist. Bass left a telephone message for Moore at her place of employment but did not receive a return call.2 Thereafter, Bass drafted a letter to Moore3 dated November 28, 2000, which read: You had requested that Wayne McDuffy be placed on the Medicaid Waiver program. This we did and an interim support coordinator was assigned to him. The agency tried without success to set up appointments to see Nelson. You never responded to her calls. We would love to assist you in providing the needed services for your son, however, this is impossible as you refuse to cooperate with the independent support coordinator.[4] It is important that you contact us if you desire to receive and/or continue receiving services from the Developmental Disabilities Program. If I do not hear from you by December 7, 2000, we will close this case. We love to hear from you, please call me at 305-808-6236. Bass normally sends letters such as this one by certified mail. In this particular instance, however, she did not use certified mail.5 Nor did Bass personally put this letter into the mailbox. Rather, she directed that it be sent out by others in the ordinary course of her office’s business. For reasons unknown,6 Moore did not receive the November 28, 2000, letter.7 Being thus unaware of the deadline that Bass had imposed, Moore could not and did not meet it; in other words, she failed timely to respond to the letter she had not seen. On December 15, 2000, Bass closed Wayne’s file, without first taking any affirmative steps to confirm the actual delivery of the letter of November 28, 2000, which would have been Moore’s only notice of the critical deadline. No notice of any kind was contemporaneously provided to Moore or Wayne regarding the closure of Wayne’s file. Although Moore was clueless as to what had occurred, the closing of Wayne’s case would have disastrous effects on his (and her) substantial interests. Because, when Wayne stopped being a client, his “slot” in the Waiver was given to someone else——and, as will be seen, would be very difficult to get back. In early 2001 (probably January), Moore contacted DCF to inquire about the services that she had been promised but had yet to receive. She was informed that her son’s case had been closed, and that she would need to re-apply. DCF did not tell Moore, then or ever, that she could request a hearing to challenge the agency’s decision to close Wayne’s file based on her failure to respond to Bass’s November 28, 2000, letter (which Moore had not received and hence remained ignorant of). Moore did as she was told. On April 12, 2001, she again applied for services on Wayne’s behalf, signing an application for participation in the Waiver. She still did not know about the different sources of funds (Medicaid and IFS) for developmental services or appreciate how the issue of funding sources might impact upon her request for services. On April 20, 2001, a district-level Crisis Identification Tool Review Committee (the “Committee”) met to consider Wayne’s new application for services. This meeting was necessary because, by this time, slots in the Waiver were so limited that DCF was able to accept only those applicants who were in “crisis” as determined by an internal, unpromulgated “Crisis Identification Tool.”8 Applicants deemed not to be in crisis were now being placed on a waiting list, to be served in date order, based on the date of becoming a client of DCF. The Committee decided, on April 20, 2001, that Wayne was not in crisis. Thus, he was placed on the waiting list, with an eligibility date——which determines his place in line——of (or around) April 12, 2001. No one at DCF took the trouble, in April 2001, to formally notify Wayne or Moore, in writing, that the Committee had found Wayne not to be in crisis, much less to advise them of the consequences of that decision or of Wayne’s right to request an administrative hearing. Nor did DCF inform either of them of its determination, or of Wayne’s right to challenge such decision, in May, June, July, August, September, October, or November of 2001. It was not until December 17, 2001——eight months after the fact——that DCF finally sent Wayne a letter (by certified mail), in care of his mother, telling him about the agency’s decision and notifying him of the right to request a hearing. The December 17, 2001, notice of agency action, which was signed by Evelyn Alvarez (“Alvarez”), Program Operation Administrator, provided in pertinent part:9 We regret to inform you that your request cannot be granted within the limits of the Department’s appropriated general revenue funds unless an individual is in crisis as determined by application of the Department’s Crisis Identification Tool. Using the Crisis Identification Tool to assess your situation, the Department finds that you are not in crisis. Florida law, therefore, prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.13(2)(c) and (d), F.S., and refer to the State Spending Plan as approved by the Florida Legislature. (Emphasis added). In response to the foregoing letter, Moore timely requested a hearing on Wayne’s behalf. At the first session of the final hearing, which took place on May 30, 2002, DCF disclosed the November 28, 2000, letter and represented that Wayne’s file had been closed based on Moore’s failure to respond to that letter. In addition, at the May 30, 2002, hearing, DCF admitted certain facts that revealed the consequences of DCF’s decision to close Wayne’s file: (1) Wayne lost his slot in the Waiver effective December 15, 2000; (2) At the time Wayne was approved for the Waiver, he did not need to be in crisis to receive a slot, but as of April 2001, he did need to be in crisis to avoid being placed on a waiting list; (3) Had Wayne’s file not been closed, he would have remained in the Waiver irrespective of whether he was in crisis, provided he continued to meet the Medicaid eligibility criteria; and (4) Wayne meets the Medicaid eligibility criteria for the Waiver. In sum, therefore, if Moore had received and responded to Bass’s November 28, 2000, letter, then, in all likelihood, Wayne would be receiving developmental services today under the Waiver. The undersigned continued the final hearing to allow Moore an opportunity to amend Wayne’s petition to challenge the obviously significant decision to close Wayne’s case in December 2000 (which was separate and distinct from the agency’s decision, made in April 2001 but not communicated to the substantially affected party until December 2001, that Wayne is not in crisis according to DCF’s criteria). On June 7, 2002, Moore filed an amended petition on behalf of her son, thereby placing DCF’s December 2000 decision in issue. On June 27, 2002, without first seeking or obtaining leave, DCF filed a “corrective letter” from Alvarez to Wayne dated June 27, 2002. This letter (which was sent by certified mail) provided in pertinent part:10 You recently[11] received a letter, dated December 17, 2001, responding to your request for general revenue funded services from the Developmental Disabilities program.[12] Upon our review of the letter sent to you, we discovered that the letter contained language addressing the Department’s Crisis Identification Tool. This language does not apply to request for General Revenue funded services. The first paragraph of your letter should read as follows: We regret to inform you, as a conclusion of law,[13] that your request cannot be granted within the limits of the Department’s appropriated general revenue funds, and Florida law prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.066(4), F.S., and refer to the State Spending Plan as approved by the Florida Legislature. (Italics in original). At the second session of the final hearing on September 3, 2002, DCF’s attorney relied upon the “corrective letter” to argue that the question whether Wayne is in crisis for purposes of the Waiver is not ripe for adjudication because “the process is still going on,” and to contend that Wayne will some day have an opportunity to litigate all Waiver-related issues in a Medicaid “fair hearing” before a DCF hearing officer (assuming, that is, DCF ever gets around to giving Wayne a clear point of entry into such a proceeding, which it still had not done as of September 3, 2002). DCF’s legal contentions will be discussed in the Conclusions of Law below. However, the undersigned rejects here, as factually incorrect, the assertion that DCF somehow has not yet determined whether Wayne is in crisis. Rather, as previously found, the Committee met and decided the “crisis” issue against Wayne on April 20, 2001, and DCF belatedly gave him a clear point of entry to challenge that decision via Alvarez’s letter of December 12, 2001. Wayne then properly exercised his right to challenge DCF’s “crisis” decision. These are matters of historical fact that DCF cannot make disappear through the magic of a revisionist “corrective letter.” Ultimate Factual Determinations DCF’s momentous decision to close Wayne’s file in December 2000 was arbitrary and capricious, in that the action was taken based on Moore’s failure to respond in time to a letter that she had never received——which latter fact DCF would have known had it exercised reasonable efforts to confirm whether Moore had actual notice of the deadline that Bass had unilaterally imposed. A reasonable governmental official would not make a decision of similar detriment to another person’s substantial interests, based solely on the latter’s silence, without first attempting to verify that the adversely affected person was aware of his or her obligation to speak.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCF enter a final order that, one, rescinds the preliminary agency action taken in December 2000 which resulted in the closure of Wayne’s case and, two, grants all relief necessary to place Wayne in as favorable a position as he would have been in today were it not for DCF’s wrongful closure of his case on or about December 15, 2000. DONE AND ENTERED this 7th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 7th day of February, 2003.
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered which denies the license renewal for Morris Manor to operate as an Assisted Living Facility. DONE AND ENTERED this 19th day of May, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1999. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway 220 Tampa, Florida 33614 Wilhelmena Morris, Administrator Morris Manor Post Office box 309 Ocklawaha, Florida 32179 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issues presented here concern two administrative complaint letters filed by Petitioner against Respondent. Both complaint letters are dated March 26, 1982. The initial charges contain allegations concerning records keeping by Respondent related to patients and staff, and employee training, per Chapter 10A, Florida Administrative Code, and Chapter 400, Florida Statutes. The second prosecution letter alleges that one of the owners of the Respondent corporation acted as legal guardian for a resident in Respondent's facility, contrary to Chapter 400, Florida Statutes. EXHIBITS AND WITNESSES Petitioner presented two witnesses, Orey William Crippen, II, Adult Congregate Living Facility Licensing Office, State of Florida, Department of Health and Rehabilitative Services, District IV, and Charles H. Carter, Supervisor of Licensure and Certification, State of Florida, Department of Health and Rehabilitative Services, District IV. Petitioner offered ten exhibits which were admitted. Respondent presented Lynn Costner, co-owner of Lynn's Care Center, Inc. Respondent's four exhibits were admitted.
Findings Of Fact At all times pertinent to this case, Lynn and Ronny Costner were the owners of Lynn's Care Center, Inc., Respondent. In the relevant time sequence, that corporation operated through its co-owners. The business of Lynn's involved Adult Congregate Living Facilities, Phase II, by license issued by Petitioner in accordance with Chapter 400, Part II, Florida Statutes. One of the facilities was located at 1562 Garden Avenue, Holly Hill, Florida. The second facility was located at 1529 Ridge Avenue, Holly Hill, Florida. On January 25, 1982, the Garden Avenue facility was inspected by Orey William Crippen, II, a facility inspector for Petitioner. The purpose of the inspection was to monitor Respondent's compliance with regulatory provisions set forth in Chapter 10A, Florida Administrative Code, which was enacted to effectuate the purposes of Chapter 400, Florida Statutes. Crippen's inspection revealed that required documentation to demonstrate that facility residents Schofield and Thomaszewski had been examined by a physician or nurse practitioner to certify acceptability of their health status to reside in the center was not available in the facility at the time of the inspection. The information that was necessary would have had to demonstrate medical examination of the residents within thirty days of admission to the facility. Schofield had been admitted into the facility on November 30, 1981, and Thomaszewski had been admitted to the facility on November 6, 1981. In Schofield's case, there was no date of X-ray or examination shown in his file. Required medical information on the patient Thomaszewski was not available at the facility. Crippen also spoke with the co-owner Lynn Costner on January 25, 1982, to ascertain the whereabouts of the aforementioned medical information for the patients Schofield and Thomaszewski. This inquiry took place in the central office of Respondent at 73 West Granada Avenue, Ormond Beach, Florida. Although Schofield and Thomaszewski had been admitted to the hospital with medical examination information, this information was not available at the central office on the inspection date. Effective March 31, 1981, the necessary medical information was replaced by employees of the Respondent and the Schofield and Thomaszewski files were complete on the subject of the necessary documentation of health status. This replacement entailed the updating of material related to Thomaszewski, in that the medical examination information that accompanied him at the time of his admission to the facility was not current. While at the facility on January 25, 1982, Crippen was unable to find requisite information to establish that two persons working in the facility on the inspection day were free from communicable diseases. Nor was he provided necessary documentation demonstrating a negative tuberculosis test, via chest X- ray or physician statement certifying no tuberculosis, or information dealing with these employees related to communicable diseases detectable by skin tests. The employees were Judy Russell and Rick Costner, son of the owners of the facility. Again, Crippen's conversation with Lynn Costner in her Ormond Beach office on the date of inspection did not lead to the production of the necessary information to demonstrate that Judy Russell and Rick Costner were free from communicable diseases. Judy Russell and Rick Costner were no longer employed by Respondent on March 31, 1982. The facility did not have an employee on duty at the time of the January 25, 1982, inspection who was certified in an approved course in first- aid, which would include cardiopulmonary resuscitation, training in bleeding and seizure control or training in antidotes for poisons. By March 31, 1982, certain employees of Respondent had achieved first-aid training. Crippen's January 25, 1982, inspection did not uncover an employment application for Judy Russell or Rick Costner, either at the Garden Avenue facility or Respondent's office in Ormond Beach, Florida. Finally, Crippen's January 25, 1982, inspection did not reveal a signed contract between the residents Bateman and Thomaszewski and the facility at Garden Avenue. Bateman had been admitted to the facility on November 26, 1981. Those contracts were not made available by Lynn Costner when Crippen spoke to her in the Respondent's Ormond Beach office on the date of the inspection. The patients had entered the facility with contracts. Mrs. Bateman's contract had been signed by her nephew and Thomaszewski's contract had been signed by a relative. The missing contract problem was subsequently rectified, effective March 31, 1982, through efforts of employees of Respondent. On January 29, 1982, Charles H. Carter, Licensure and Certification Supervisor for District IV, wrote to Lynn and Ronny Costner, owners of Lynn's Care Center, and attached a deficiency statement document to that correspondence. A copy of the letter and deficiency statement may be found as Petitioner's Exhibit No. 1, admitted into evidence. The purpose of the letter and statement was to allow Respondent to offer corrections by written indication of steps to be taken to resolve problems discovered in the course of Crippen's inspection and the deficiency document contained a column for offering written corrections. It afforded the Respondent through February 15, 1982, to satisfy the problem related to employment applications for Judy Russell and Rick Costner. Respondent was allowed, until March 1, 1982, to correct all other violations alluded to in these findings, with the exception of the first-aid certification. On the subject of first-aid certification, Respondent was given through March 31, 1982, to verify certification. All corrections which were made related to allegations spoken to in the administrative complaint and reported in these facts date from March 31, 1982, and notification of those corrections in writing was received by Petitioner on April 5, 1982. The statement of corrections was reported on the deficiencies and corrections form mailed on January 29, 1982. Corrections were not verified by Petitioner. See Respondent's Exhibit No. 4. The corrections were made subsequent to an exit conference on January 25, 1982, held between Crippen and Lynn Costner in Respondent's Ormond Beach Office in which Costner was made aware of the related problems. With the exception of the matter related to first-aid, the written notification of corrections was not timely. By the letter of transmittal of the statement of deficiencies, Carter had advised Respondent that the failure to submit the plan of corrections within the time specified would lead to a finding of noncompliance by Respondent and the possibility of administrative fine. On March 5, 1982, not having heard from Respondent on the topic of the March 1, 1982, deadline for certain corrections, Carter again wrote the Costners, as owners of Lynn's Care Center at Garden Avenue, requesting that the response by statement of corrections be made no later than March 18, 1982. See Petitioner's Exhibit No. 2, which is a copy of the Carter correspondence. There being no reply to the March 5, 1982 correspondence, an administrative complaint letter was forwarded to Respondent, in the person of the Costners, Lynn's Care Center, at 1562 Garden Avenue, Holly Hill, Florida. This item was sent certified mail, return receipt requested. It set forth violations related to the deficiencies which have been discussed in this Recommended Order. The complaint was received by an employee of Respondent on April 2, 1982. See Petitioner's Exhibit No. 3 Respondent disputed the factual allegations in the complaint and a Subsection 120.57(1), Florida Statutes, hearing was conducted to resolve the dispute. On March 26, 1982, a second administrative complaint letter was served on the Costners reference a resident in their facility at 1529 Ridge Avenue, Holly Hill, Florida. That complaint was received on April 2, 1982, as shown by the certified mail return receipt request form. The administrative complaint and certified mail return receipt docket may be found as Petitioner's Exhibit No. 10, admitted into evidence, a copy of the complaint and receipt item. The complaint letter charged that Ronny Costner had acted as the legal guardian of Margaret Wells, a resident in the Ridge Avenue facility, and in doing so violated Chapter 400, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. On January 19, 1982, letters of guardianship of the property of Margaret Wells had been presented to Ronny Costner, through action in the Circuit Court in and for Volusia County, Florida. See Petitioner's Exhibit No. 4, a copy of the order issuing letters of guardianship. On March 8, 1982, Charles Carter wrote to inquire of Ronny Costner on the subject of whether Costner was indeed the legal guardian of the property and suggested the impropriety of such guardianship. See Petitioner's Exhibit No. 9, which is a copy of the Carter correspondence. Resident Wells had been admitted to the Ridge Avenue facility upon referral by Dr. John Hall, D.O. At the time of admission, the Costners were unable to find family to serve as Wells' guardian. Wells was suffering from Organic Brain Syndrome. Following examination by two physicians and with the assistance of Patty Butcka, an Adult Caseworker with Petitioner, and her husband, serving as legal counsel, petition was made leading to the guardianship appointment of Ronny Costner for the benefit of Wells. During the time that he served as legal guardian he received no compensation. The guardianship of Wells was in view of the fact that no close relatives resided in the area where Wells was living. At the guardianship hearing no family member appeared or objected to the appointment of Costner as guardian. Following receipt of the March 8, 1982, letter from Carter, Costner employed counsel and petitioned the court to remove him as guardian for Margaret Wells, in view of the provision of Chapter 400, Florida Statutes, which would not allow Costner to act as guardian of a resident in his Adult Congregate Living Facility. An order was entered removing Costner as Wells' guardian and Ronny Costner no longer served in that capacity at the time of the final hearing in this cause.
