The Issue The issue for consideration in this matter is whether Respondent’s Extended Congregate Care (ECC) license for the facility at 302 11th Avenue, Northeast, in St. Petersburg, Florida, should be renewed, and whether her license to operate that assisted living facility should be disciplined because of the matters alleged in the denial letter dated April 16, 1998, and in the Administrative Complaint filed herein on December 15, 1998. Ms. Berthelot requested formal hearing on those issues, and this hearing ensued.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration (Agency) was the state agency in Florida responsible for the licensing and regulation of assisted living facilities in this state. Respondent Marlene C. Berthelot operated Four Palms Manor, a licensed assisted living facility located at 302 11th Avenue, Northeast, in St. Petersburg, Florida. Ann DaSilva had been a surveyor of assisted living facilities for the Agency for at least five years at the time of the initial survey in this matter that took place in December 1997. On that occasion, Ms. DaSilva, in the company of another surveyor, Mr. Kelly, inspected the facility in issue on a routine basis. At that time, Ms. DaSilva noted that with regard to at least one resident, there was no health assessment by the resident’s physician in the resident’s file. A health assessment should contain the physician’s evaluation of the resident’s capabilities and needs, as well as his or her initial status upon admission. In this case, Ms. DaSilva found that the health care provider had not addressed the skin integrity of the resident at the time of admission as should have been done. This is important because if the resident had had a skin problem or some other health problem, the resident might well not have been eligible to reside in the facility because facilities of this kind normally do not have the capability of treating pressure sore ulcers. Ms. DaSilva also found that the health assessment did not accurately reflect the resident’s status at the time of the survey. She found the resident was far less capable of doing what the health assessment said she could do, and the assessment was neither current nor accurate. The resident required assistance in all activities of daily living, and it was reported the resident fell out of bed because she could not stand. This situation was written up as Tag A-403. Tag A-403 was re-cited in a follow-up survey conducted on March 26, 1998. At that time the surveyor found that the health assessment did not address the resident’s method of medication administration. On admission, the resident was receiving no medications at all. After she began taking medications, the facility failed to get an order from her physician to indicate how the medications were to be administered, self or with help of staff administration. Tag A- 403 was cited for a third time in the October 1998 survey where the same deficiency, as cited in the March survey, the failure of the file to reflect how the resident’s medications were to be administered, was again cited. The record still did not indicate how the resident was to receive her medications. This tag was classified as a Class III deficiency and that classification appears to be appropriate. Tag A-406, which deals with the facility’s need for an evaluation of the resident’s ability to self-preserve in case of emergency, was also cited as a deficiency in the December 30, 1997, survey. There was no evidence in the file that such an evaluation was accomplished during the first 30 days after admission regarding this resident as is required by rule. Ms. DaSilva observed the resident in bed at 9:30 a.m., and the nurses’ notes reflected she was totally dependent and needed help with locomotion. The resident suffered from cerebral palsy with severe paresis (weakness) on one side. This situation raised the surveyor’s concern as to whether the resident could get out of the facility in the event of an emergency. No indication appeared in the records or documentation regarding this resident, and no supplement was provided upon the request of the surveyor. Ms. DaSilva also heard the resident call out for assistance, a call which remained unanswered because the one staff member on duty at the time was not in the immediate area. Ms. DaSilva observed that the resident was not able to stand without assistance but the facility’s paper-work indicated the resident could self-ambulate. This was obviously incorrect. When the facility administrator, Ms. Berthelot, was called by her staff manager, she came to the facility to assist in finding the requested paperwork, but was unable to locate in the file any evaluation of the resident’s capability to self-preserve. Tag A-406 was re-cited in the March 1998 survey because again there were two residents who had been in the facility for over 30 days without any evaluation of their ability to self- preserve. It was cited for a third time during the October 1998 survey when the surveyor found two other residents who had been in the facility for over 30 days but who had not been evaluated for their ability to self-preserve, and notwithstanding a request for such documentation, none was found or produced. This resulted in Tag 406 being classified as a Class III deficiency. At the March 26, 1998, survey, Ms. DaSilva cited Tag A-504, which deals with the requirement for direct care staff to receive training in patient care within 30 days of being hired. The Agency requires documentation of such training, and surveyors look at the files of the staff members on duty to see if the employee’s file contains certification of the proper training, appropriate application information, references, and like material. This information is needed to ensure that the employee is qualified to do the job. Here, examination of the facility’s files failed to show that the one staff person on the premises during the evening shift Monday through Friday, Employee No. 1, had had the proper training. It also appeared that Employee No. 3, who was hired to work alone on Thursday and Friday evenings and Saturday and Sunday day shifts, also did not have any record of required training. This subject matter was again cited during the October 1998 survey. When Ms. DaSilva requested the file of the individual on duty, there was nothing contained therein to reflect the individual had had the required training. This was properly classified as a Class III deficiency. Tag A-505 was also cited as a result of the March 1998 survey. This tag deals with the requirement for staff who provide personal services to residents to be trained in providing those services. Ms. DaSilva asked for and was given the facility’s files but could find no evidence of proper training having been given. This subject matter was again cited as a result of the October 1998 survey. At the hearing, Respondent presented certificates of training in personal hygiene, medication policy and training, and direct care 2-hour staff training, given to all employees of all Respondent’s facilities. These certificates reflect, however, that the training was administered on April 22, 1998, after the March 1998 survey but before the October 1998 survey, though that survey report reflects the item was again tagged because of employees scheduled to work alone who did not have documentation of appropriate training. This was a Class III deficiency. As a result of the December 1997 survey, Ms. DaSilva also cited the facility under Tag A-602, which deals with medication administration, and requires staff who administer medications to be trained in appropriate methods. At the time of the survey, Ms. DaSilva observed a staff member pour medications from prescription bottles into her hand, take the medications to the resident, and give them to her. This staff member was not a licensed person and only licensed staff may administer medications. At the time, when asked by Ms. DaSilva, the staff member admitted she was not licensed and had not received any training in medication administration. Tag A-602 was again cited as a result of the March 1998 survey because at that time Ms. DaSilva observed a staff member assist a resident correctly, but when she looked at the records, she found the member had not received the required training. This has, she contends, a potential for improper medications being given which could result in possible harm to the resident. This Tag was again cited as a result of the October 1998 survey. On this occasion, Ms. DaSilva’s review of records or employees who had indicated they had assisted with medications revealed no evidence of appropriate training. Here again, the training was certified as having been given in April 1998, and Respondent contends that by the time of the October 1998 survey, the certificates were in the records. They were not found by the surveyors, however, and it is the operator’s responsibility to make the records available. This constitutes a Class III violation. Under the rules supporting citation Tag A-703, a facility must have an ongoing activities program into which the residents have input. On December 30, 1997, Ms. DaSilva interviewed the residents who indicated there was no activities program at Four Palms. Ms. DaSilva observed no planned activities taking place over the six to seven hours she was there. This deficiency was re-cited during the March 1998 survey. Again, Ms. DaSilva interviewed the residents who indicated they watched TV or walked. A calendar of activities was posted, but there was no indication any were taking place, and upon inquiry, a staff member indicated none were being done that day. The activities calendar provided by the staff member merely listed potential activities, but did not indicate when or where they would take place. Ms. DaSilva again cited the facility for a deficiency in its activities program as a result of the October 1998 survey. At this time, she observed no activities during the time she was at the facility. The staff member on duty reported that the planned activity was not done because she did not have time to do it. At that time, residents were observed to be lying on their beds or watching TV. The one staff person on duty was cooking, cleaning, or helping residents with care issues. This is a Class III deficiency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Respondent renewal of a license to operate Four Palm Manor, an assisted living facility at 302 11th Avenue, Northeast in St. Petersburg, Florida; granting renewal of the ECC license for the same facility; and finding Respondent guilty of Class III deficiencies for Tags 403, 406, 504, 505, 602, and 703 on the surveys done on December 30, 1997, and March 26, 1998. An administrative fine of $100 should be imposed for each of Tags 403, 404, 504, and 505. DONE AND ENTERED this 13th day of December, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1999. COPIES FURNISHED: Karel L. Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33901 Renee H. Gordon, Esquire Gay and Gordon, P.A. Post Office Box 265 St. Petersburg, Florida 33731 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue presented herein is whether or not Petitioner is eligible to be assigned foster children.
Findings Of Fact Based on the Hearing Officer's observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record complied herein, I make the following relevant factual findings: Petitioner, Johnnie Mae Smith, was licensed as a foster parent on July 1, 1987, for one (1) female foster child (Certificate No. 787-48-1). Thereafter, Petitioner requested that foster children be placed in her home and she was denied. Specifically, by letter dated December 4, 1987, Gloria P. Simmons, District Operations Manager, Children Youth and Family (CYF) Services, advised Petitioner that "we are not placing any foster children in your home for the following reasons: Insufficient income to provide adequate cash flow to support additional expenses incurred. Lack of integrity in reporting income while receiving AFDC 1/ payments. "Your provocative, overbearing, abrasive, and implusive (sic) behavior." Petitioner was advised of her right to appeal Respondent's denial of placement of foster children in her home and she timely appealed that denial. Gene Majure, (Majure hereafter) Senior CYF Counselor, has been employed by Respondent in excess of 16 years. Majure is presently assigned to making license recommendations for foster home applicants in Dade County. Majure was assigned Petitioner's foster home applicants license application for review. During October 1986, Petitioner received pre-service training as a foster parent at which time she made application for licensure as a foster parent. Petitioner's initial foster home study was conducted by Gene Majure, who rejected it primarily on the basis of "insufficient income." Petitioner protested her initial foster home application rejection and instead of being processed through normal appeal channels, she was informed by Leonard Helfand, District Legal Counsel, that she would be reinvited to pre- service training and she could reapply. Petitioner reattended the second part of pre-service training on May 21, 1987, and she officially reapplied. Lois Rossman, (hereafter Rossman) Senior Youth and Family Counselor, and Peggy Ann Siegal, Children Youth and Family Supervisor, visited Petitioner in her home on June 12, 1987. Their interview of Petitioner revealed that Petitioner shared her three-bedroom home in Opa Locka with her two daughters, Chantrell (15) and Latrise (14). Petitioner is separated from her husband for approximately one year and his specific whereabouts is unknown. Majure again visited Petitioner during January 1987. At that time, Majure inquired as to Petitioner's financial income and Petitioner responded verbally, and in writing, on October 9, 1986, and again on June 12, 1987, that she has $400 per month earned income which income is derived from a laundry service which she has operated for the past 5 years. On the other hand, Petitioner signed a monthly income statement with AFDC indicating that she has no earned income. To the extent that Petitioner has earned income, she incorrectly reported her income to AFDC since October 1986, which may result in either an overpayment or fraudulent involvement in her income reporting. (Respondent's exhibit 3). Rossman was also assigned Petitioner's case to determine her eligibility to be assigned foster children. Rossman was present on the June 12, 1987, visit to Petitioner's residence at which time Petitioner again related that she had earned income of approximately $400 per month which income statement was contrasted with the available records that Respondent's employees had obtained from the AFDC office wherein Petitioner indicated that she had no earned income. To the extent that Petitioner does not have earned income, she has indicated a total income of $264 per month and stated expenses of approximately $400-$605 per month which creates cause for concern as to her ability to maintain a stable and secure family environment for foster children. Rossman also became involved in circumstances wherein Petitioner repeatedly called the CYF counselor's office demanding to speak with supervisory employees wherein she demanded that she be assigned foster children since she was licensed. When secretarial employees advised Petitioner that her message would be relayed and that as soon as a supervisor or other placement official became available, they would return her call, Petitioner would again call using an alias to attempt to get through. This problem persisted for several months following the time that Petitioner's foster home application was approved in July 1987. Respondent's secretarial employees who answer the phone and greet clients in person have been trained to deal with irate and abusive clients, however Petitioner's unrelentless calling became so problematic that employees felt harassed and one employee broke down and starting crying based on Petitioner's persistence about seeing or talking to certain supervisory employees at certain times. Prior to the time that Petitioner's foster home license application was approved, she was much more pleasant in her conversations with employees in the CYF office. (Testimony of Peggy Siegal and Ellie Roman). Petitioner also keeps three large dogs in her yard, one of which is a Pit Bull and two are large German Shepherds who made threatening postures at Respondent's employees when they visited Petitioner's home for inspections. Although Petitioner maintains that the two German Shepherds do not belong to her, they were at her home on each occasion when she was visited by licensing staff and Respondent's sanitation inspector. Petitioner keeps the dogs, which roam at will around the fenced area her home, at bay by swinging a rubber hose at them. The fact that Petitioner is receiving welfare benefits is not an automatic disqualification which prevents her from being assigned foster children. Petitioner encountered problems with her spouse which culminated in a separation and she was, therefore, left with insufficient income to maintain herself and she applied for and is receiving welfare benefits. Petitioner plans to begin employment at Jackson Memorial Hospital shortly.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent, Department of Health and Rehabilitative Services, enter a final order finding that Petitioner is not eligible to be assigned foster children. 2/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of October, 1988. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1988.
The Issue Whether Hospice of Southwest Florida, Inc. has standing to initiate a challenge to the issuance of a license to Hospice of Charlotte, Inc.
Findings Of Fact The facts alleged in the petition, which for purposes of this Motion, are taken as true, are as follows: In a March 10, 1994 letter, the President of HOC notified AHCA that the Board of Directors met that day and decided to dissolve HOC, that the only patient receiving services had been transferred to another provider, and that HOC intended to accept no further referrals. On March 15, 1994, AHCA responded by "terminating the license of Hospice of Charlotte effective March 10, 1994." AHCA requested a copy of the minutes of the March 10th board meeting. On March 25, 1994, the President of HOC wrote to AHCA again, this time requesting review of his letter seeking dissolution, "for the purpose of re- opening our case." He said the Board, on March 10th, intended to restructure the operation and, on March 22nd, met again and approved an agreement to work with another home health agency. Referring in his letter to advice given him in a telephone conversation with agency staff, the President sent HOC licenses number 0046 and 00442 to AHCA. The licenses had April 30, 1994 expiration dates. The letter also stated that HOC and its new partner would re-apply for licensure. In May 1994, HOC requested the return of the renewal license fee sent in on March 3, 1994, for a license that was not pursued. In December, 1994, AHCA investigated an allegation that HOC was continuing to operate without a license and concluded by finding the allegation unconfirmed. HOC had no license after March 1994 until January 31, 1995, when AHCA issued License No. 5015-94 to HOC, effective from May 1, 1994 to April 30, 1995. On April 21, 1995, AHCA notified HOC that its license was void ab initio for failure to first obtain a certificate of need (CON). The following facts are taken from public records at DOAH and from documents submitted by HOC as attachments to the Motion In Opposition: On May 16, 1995, HOC filed a Petition For Formal Administrative Hearing challenging AHCA's April 21, 1995 action voiding its license. On June 1, 1995, the First District Court of Appeal issued an Order to Show Cause by June 7, why a petition to review non-final administrative action should not be granted, and required the agency to specifically address the authority of the agency to revoke HOC's license. On June 7, HOC and AHCA entered into a settlement agreement, pursuant to which HOC voluntarily dismissed its actions at DOAH and in the District Court, and AHCA withdrew its letter of April 21, 1995, and issued HOC a license effective May 1, 1995. There is no evidence in the record of HOC's CON status. Whether HOC has or ever had a CON, or was a grandfathered provider is not know.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency For Health Care Administration enter a Final Order dismissing the Petition For Administrative Hearing filed by Hospice of Southwest Florida, Inc. DONE AND ENTERED this 1st day of September, 1995, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1995. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 J. Robert Griffin, Esquire McFarlain, Wiley, Cassedy & Jones, P.A. 215 South Monroe Street Suite 600 Tallahassee, Florida 32301 Peter A. Lewis, Esquire Goldsmith & Grout, P.A. 307 West Park Avenue Post Office Box 1017 Tallahassee, Florida 32302-1017 R. S. Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Tom Wallace Assistant Director Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue Whether the Agency for Health Care Administration (AHCA) should refuse to renew La Maison's license to operate an adult congregate living facility, impose a civil penalty, or take other disciplinary action against La Maison for the reasons alleged in the administrative complaint and the letter of intent to deny?
Findings Of Fact Marita Dehmer is the administrator of La Maison, an adult congregate living facility in Pensacola. Earlier administrative proceedings arising on allegations of La Maison's failure to comply with applicable regulations eventuated in the June 1991 joint stipulation, AHCA's Exhibit No. F-6, pursuant to which HRS issued the conditional eleven-bed license that La Maison now seeks to renew. AHCA's Exhibit No. 3. Reports of Neglect Confirmed When time came to discharge M.K., a chronic diabetic, from Pensacola's Sacred Heart Hospital, a nun called Ms. Dehmer because M.K. "had very little income . . . [and Ms. Dehmer was] known for taking people with very little income." T.496. That afternoon she collected M.K. at the hospital and took him to La Maison. Before they left the hospital, a nurse told Ms. Dehmer that nothing had been prescribed for M.K., but she said she would ask his physician about medicine for him. Ms. Dehmer asked the nurse to tell M.K.'s physician, if he wanted to prescribe medicine for M.K., to telephone the pharmacist she regularly dealt with, Arnold Rosenbleeth. By the time Ms. Dehmer called the pharmacy that evening, it had closed for the day. M.K. told her he had insulin at his girl friend's, and Ms. Dehmer repeatedly telephoned there but got no answer. M.K.'s parents, whom she did reach by telephone, suggested she call the girl friend. Meanwhile she gave M.K. fruit to eat. The next morning she reached the pharmacist, who said insulin would be delivered within "the next hour or so." T.488. After receiving that news, she went to her house next door, leaving M.K. in an employee's care. After she had left, M.K.'s mother and a nurse arrived, and M.K. left La Maison with them. His stay at La Maison had lasted some 20 hours. Nearly 80 years old, S.G., who suffered from Alzheimer's disease, ordinarily lived with a woman who took care of him. When she went to visit her daughter, however, or needed a respite, she left S.G. at La Maison. One Saturday when Ms. Dehmer was at her house next door to La Maison, Angela Powers was in charge and S.G. was temporarily in residence. Ms. Dehmer had explained S.G.'s tendency to wander to Angela Powers at the time she began working at La Maison. Ms. Powers nevertheless left the premises (to drive somewhere with another resident) without telephoning Ms. Dehmer, without letting the other staff person on duty inside the facility know she was leaving, and in contravention of policy on which she had been instructed. During her absence, S.G. walked off the grounds, fell and cut himself so that stitches were required. After that night, Ms. Powers never worked for La Maison again. As a result of each of these incidents, HRS set in motion bureaucratic machinery which eventually confirmed "abuse registry reports" characterizing Ms. Dehmer's conduct with respect to S.G. and M.K. as neglect of aged or disabled adults. While the incidents themselves occurred before the parties' stipulation in the summer of 1991, HRS's final orders upholding the confirmed reports of neglect, as defined in Section 415.102, were entered subsequently. History of Deficiencies Applicable regulations divide requirements (or the failure to meet requirements) for adult congregate living facilities into three categories: Class I consists of deficiencies that pose an imminent danger to the life or health of residents; class II deficiencies pose a direct, although not an imminent, danger to residents' well being; and class III deficiencies constitute an indirect or merely a potential hazard. T.275. At no time has AHCA or HRS ever alleged that La Maison had deficiencies either of a Class I or of a Class II type. The evidence showed in detail La Maison's "history of [Class III] deficiencies," however, including those that were not corrected by deadlines that regulators laid down and some that recurred. But La Maison has hardly been alone in having Class III deficiencies come to light in the course of HRS' annual inspections; other adult congregate living facilities in the Pensacola area have a history of deficiencies, including repeat deficiencies. Indeed, HRS' Rene Fuller testified that "[t]here is a history of deficiencies in almost every facility." T.277. Food Service On July 20, 1990, Kathleen Wilkes and another HRS employee, Carol Christiansen, inspected La Maison. When Ms. Wilkes asked to see copies of menus, Ms. Dehmer, produced "a piece of paper for July, but she said she couldn't find the prior." T.198. The noon meal that day did not correspond to the menu Ms. Wilkes understood to pertain. No dietician had signed off on the menu(s) Ms. Wilkes saw that day. T.197. On August 23, 1990, when HRS' Paul Pineau returned for a follow-up inspection, he found every deficiency identified on July 20, 1990 to have been corrected, except that he, too, saw no evidence that menus had been reviewed annually by a registered dietician or dietetic technician. Respondent's Exhibit No. P-1, p.3. In May or June of 1989, however, Laura Goolsby, a registered dietician, had prepared or revised four weeks' worth of menus. La Maison's Exhibit No. 8. On December 18, 1990, Jennifer Scott, another registered dietician, reviewed and approved four weeks' menus for La Maison. Thereafter Albert Jones, who had worked as La Maison's cook for some two years at the time of the hearing, adhered faithfully to the prescribed four-week cycle, keeping meticulous records of such (fully permissible) substitutions as corn bread for white bread and carrots for peas. La Maison also retained a registered dietician to prepare a special 1800-calorie-a-day set of menus for diabetic residents. No resident ever received an improper or insufficient diet, as far as the evidence revealed. La Maison normally keeps a 21-day supply of "extra food" in a locked pantry ten to feet from the kitchen. T.374. All Violations Corrected HRS' initial inspection, after the parties' stipulation that La Maison's license should be renewed on condition of strict compliance with ACLF regulations, turned up more than 20 Class III deficiencies, ranging from sugar spilt on the pantry floor to broken window panes. On December 10, 1991, when HRS inspectors revisited, everything with which they had found fault in September had been corrected with the exception of the following: 13900 10A-5.022(1)(a), F.A.C. The building is not kept in good repair and free of hazards as evidenced by: Floors in both bathrooms are rotted and giving way; * * * 131001 10A-5.023(19), F.A.C. Facility grounds are not in a safe, sanitary and presentable condition as evidenced by: 1) The back yard is bare of grass and severely rain eroded immediately in rear of building; La Maison's Exhibit No. 1. While one of the bathroom floors remained "springy" on reinspection, no bathroom floor was shown to constitute a hazard. Nor was the lack of grass in the back yard or any erosion there proven unsafe or unsanitary. Mitigating Circumstances Since Marita Dehmer took over La Maison (formerly "Twilight Villa"), she has provided a home for 35 or 40 people whose problematic finances, physical decrepitude or poor mental health would otherwise have meant living in much less satisfactory circumstances in many cases at considerably greater expense to their families or the public fisc. After caring for a dying friend, she chose this work as a vocation. She cares about La Maison's residents and does much more for them than her duties as administrator require. She takes them shopping, to the beach and on various errands. She buys things for them and takes them to see their doctors. She lets Randall, who was declining while he was confined as a mental patient at the Pavilion, and has since recovered much of his long term memory, keep his piano in the house. She did as much for George, who is now dead, as anybody could have. Doris Young, the ACLF outreach nurse at Lakeview finds that Ms. Dehmer has a ready ongoing knowledge of the health of Ms. Young's patients who reside at La Maison. At hearing, Donna Gilbert, a volunteer counselor for United Ministries, recalled the three homeless people Ms. Dehmer has taken into La Maison at her behest: a woman afflicted with AIDS, a "mentally handicapped" "gentleman" whom Ms. Dehmer occasionally dropped off downtown so he could visit with his friends while she did errands, and a penniless woman whose glaucoma had left her legally blind. La Maison affords a "regular home environment" in the opinion of Ms. Gilbert, the volunteer counselor. Phillip McDaniel who leads Bible study Thursday nights finds the residents "a pretty happy bunch." La Maison is more attractive, in the opinion of Albert C. Jones, than two other ACLF facilities in the Pensacola area with which he is familiar. The building is kept clean and has no rat or roach problem. The lady with glaucoma testified the food was "fabulous," and Randall's brother, who comes from Mississippi for monthly visits, likes the food too.
Recommendation Upon consideration, it is RECOMMENDED: That AHCA impose an administrative fine on La Maison in the amount of $100.00. That AHCA grant La Maison a standard, unconditional license DONE AND ENTERED this 14th day of September, 1993, in Tallahassee, Florida. COPIES FURNISHED: Michael O. Mathis Senior Staff Attorney Department of Health and Rehabilitative Services Office of Licensure 2727 Mahan Drive, Suite 103 Tallahassee, Florida 32308 Cheryl Johnson Howard, Esquire 700 South Palafox Street Suite 1-A Pensacola, Florida 32501 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1993. Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-5238 La Maison's proposed findings of fact Nos. 1, 2, 3, 4, 8, 9, 14, 15, 18, 20, 23, 25, 26 and 27 have been adopted, in substance, insofar as material. La Maison's proposed findings of fact Nos. 5 and 6 pertain to immaterial matters. La Maison's proposed findings of fact Nos. 7, 10, 11, 13, 16, 17, 21 and 24 pertain to subordinate matters. With respect to La Maison's proposed finding of fact No. 19, there was no showing that the other adult congregate living facilities had Class I or II deficiencies. With respect to La Maison's finding of fact No. 12, the problems were corrected by the time of the second follow-up. With respect to La Maison's proposed finding of fact No. 22, he had worked approximately one year. AHCA's proposed findings of fact Nos. 1-12, 14, 29, 30, 32, 33, 35, 37, 38, 39, 41, 47, 55, 58, 59, 62, 65, 74, 79, 81, 82, 83, 85, 86, 88, 90, 100, 109 and 110 pertain to subordinate matters. With respect to AHCA's proposed findings of fact Nos. 13, 15, 16, 42, 43, 44, 51, 52, 53, 56, 57, 60, 63, 66, 67, 68, 69, 70, 71, 75 and 76, the witness indicated identified the documents indicated. With respect to AHCA's proposed finding of fact No. 17, La Maison has not always been in compliance. AHCA's proposed findings of fact Nos. 18, 19, 20, 21, 45, 54, 61, 77, 84, 89, 91, 104, 105, 106, 107 and 108 have been adopted, in substance insofar as material. With respect to AHCA's proposed findings of fact Nos. 22 and 23, final orders upholding confirmed reports were entered but findings in this proceeding regarding underlying facts have not been predicated on the HRS orders. With respect to AHCA's proposed findings of fact Nos. 24, 36, and 87, the arrest was immaterial; the only witness as to the magnitude of the problem said the leakage could have been covered with two shovelsful of earth; and Ms. Dehmer corrected the problem (at a cost of $13,000,00). AHCA's proposed findings of fact Nos. 25, 26, 31, 49, 80, 101 and 102, pertain to immaterial matters. With respect to AHCA's proposed findings of fact Nos. 27, 28, 34, 48, 50, 64, 72 and 73, the testimony recited was adduced. With response to AHCA's proposed finding of fact No. 40, the records were not available to the inspectors because Ms. Dehmer was out of pocket and did not have the beeper she now carries. All violations were corrected by the time of the December 10, 1991 reinspection. With respect to AHCA's proposed finding of fact No. 46, the pharmacist testified he effected the transfer to the unit dose packages. With respect to AHCA's proposed finding of fact No. 78, signed menus were available for inspection on December 10, 1991. With respect to AHCA's proposed finding of fact No. 92, the lack of supervision was the result of an employee's unauthorized absence; the employee did not work another day for La Maison. With respect to AHCA's proposed finding of fact No. 93, the fact that M.K. died some months after his 20-hour stay at La Maison gives rise to no inference of cause and effect nor any inference as to his condition when he was at La Maison. With respect to AHCA's proposed finding of fact No. 94, most of the residents were permitted to administer drugs to themselves. With respect to AHCA's proposed finding of fact No. 95, all these documents were available on reinspection on December 10, 1991. With respect to AHCA's proposed finding of fact No. 96, she testified that she referred elsewhere anybody whose needs she could not meet. With respect to AHCA's proposed finding of fact No. 97, not all the deficiencies were authentic "repeat deficiencies". The "plumbing deficiencies," for example, ranged from the need for work costing $13,000.00 on the sewer, to La Maison's leaving a hot water handle off a shower to protect a resident from scalding himself. With respect to AHCA's proposed finding of fact No. 98, the final orders were entered after the stipulation was executed. AHCA's proposed findings of fact Nos. 99 and 111 are actually proposed conclusions of law. With respect to AHCA's proposed finding of fact No. 103, the deficiencies were corrected by the time of the second follow-up inspection.
The Issue The primary issue in this case is whether Respondent, a licensed group home operator, violated several statutes and rules governing such homes and their staffs, with most of the alleged offenses occurring, Petitioner charges, in connection with the accidental death of a resident. If Respondent is found guilty of any disciplinable offenses, then it will be necessary to determine the appropriate penalties for such violation(s).
Findings Of Fact At all times relevant to this action, Respondent Daniel Madistin LLC #1 ("DM1") held a Certificate of License, numbered 091867, which authorized DM1 to operate a group home for the developmentally disabled in West Palm Beach, Florida, for the one-year period from April 1, 2014, through March 31, 2015. DM1 had been licensed as a group home since 2009. DM1's facility (the "Home") could house up to six residents at a time. As a group home licensee, DM1 falls under the regulatory jurisdiction of Petitioner Agency for Persons with Disabilities ("APD"), which issued DM1's initial and annual renewal licenses and periodically inspected the Home. One of the Home's longtime residents was a young man named V.H.-D. This wheelchair-bound, nonverbal resident suffered from a number of medical conditions, including severe cerebral palsy, as a result of which he was unable to care for himself. The Home's staff, therefore, were required, among other things, to feed V.H.-D., whose difficulty swallowing solid foods had caused him to be placed, on doctor's orders, on a diet of puree as a precaution against choking. (V.H.-D.'s family had refused to consent to the placement of a feeding tube.) On the morning of Sunday, October 19, 2014, an employee of DM1, Pharah Murat, fed V.H.-D. his breakfast, as she had done many times since starting to work in the Home in June of 2014. Because V.H.-D. could not talk, he generally manifested satiety by regurgitating food and expelling it from his mouth, at which point the caregiver would clean him up. So, this day, when V.H.-D. began expelling food, Ms. Murat stopped feeding him and wiped his mouth, per the routine. The situation was not routine, however, as Ms. Murat soon realized. V.H.-D. became pale and nonresponsive and looked unwell. Concerned, Ms. Murat immediately called her supervisor, Daniel Madistin, the eponymous principal of DM1. Upon hearing Ms. Murat's description of V.H.-D.'s condition, Mr. Madistin, who was at church with his wife, ended the call and promptly dialed 911. Having thus summoned emergency medical services and law enforcement, Mr. Madistin rushed to the Home. Meantime, Ms. Murat and a fellow employee, Marie Cadet, attended to V.H.-D. as they awaited the arrival of the paramedics. The evidence, which is in conflict, persuades the undersigned to find that, more likely than not, Ms. Murat placed V.H.-D. on the floor and performed cardiopulmonary resuscitation, or tried to, although to what avail cannot be determined. Afterwards, she and Ms. Cadet returned V.H.-D. to his wheelchair and moved him from the dining room to the front door, so that the paramedics would be able to work on him without delay once they appeared, which they did within a matter of minutes. V.H.-D. was removed from the Home and taken by ambulance to the hospital, where he died from asphyxiation due to pulmonary aspiration of food secondary to cerebral palsy. APD contends that V.H.-D. was the victim of "neglect" because (a) Ms. Murat called Mr. Madistin, instead of 911, and (b) the staff failed to (i) recognize that V.H.-D was choking and (ii) handle an emergency situation promptly and intelligently. While there is no dispute that Ms. Murat called Mr. Madistin, there is no debate that she did so immediately upon realizing that V.H.-D. might be in distress, which she observed very quickly. The evidence does not establish whether or not Ms. Murat realized that V.H.-D. was choking, but it does clearly prove that she not only realized something was wrong, but also acted upon that recognition without delay. APD insinuates that by not calling 911 first, Ms. Murat increased the response time of the EMTs, to the detriment of V.H.-D. There is, however, no persuasive evidence that Ms. Murat's actions decreased the likelihood of V.H.-D.'s survival, nor is that a reasonable inference. To the contrary, it is more reasonable to infer, although not necessary to find, that Ms. Murat expedited the delivery of emergency medical services because she could converse in her primary language with Mr. Madistin, whose first language, too, is Creole, enabling the latter, who is fluent in English, to relay the relevant information efficiently to the 911 dispatcher. In addition, it should be mentioned that DM1's policy directed employees to call 911 in an emergency. So, even if Ms. Murat's failure to call 911 first amounted to neglect in this instance, which it did not, there is no basis in the evidence for holding the licensee responsible, for there is no evidence suggesting that DM1 knew or should have known that Ms. Murat would act as she did in a crisis. In any event, the evidence shows, and the undersigned finds, that Ms. Murat and Ms. Cadet acted with reasonable skill and efficiency in this emergency. In making this finding, the undersigned is mindful that direct care staff are not medical providers. Indeed, at the time DM1 hired Ms. Murat, a caregiver needed only an eighth-grade education to meet the minimum academic requirements,1/ and even under the current rule a high school diploma or its equivalent suffices.2/ The point is that it is unreasonable to expect a direct service provider in a group home, when responding to a medical emergency, to meet the standard of care applicable to a doctor, nurse, or EMT. No persuasive evidence in the instant record establishes the appropriate standard of care for direct service providers, but the undersigned is nevertheless able to determine, based on the totality of the circumstances, that the performance of DM1's staff, while probably falling short of heroic, was at least reasonable, and certainly not neglectful. After the EMTs had left for the hospital, Palm Beach County Sheriff's Office ("PBSO") deputies stayed behind at the Home to investigate. One of the officers tried to interview Ms. Murat, but she was reluctant to speak. Ms. Murat and Ms. Cadet are Haitian immigrants whose native tongue is Creole, and once the officers realized this, they called for the assistance of Deputy Vessage, a bilingual PBSO deputy who often serves as a translator in such instances. Deputy Vassage responded to this request and questioned the women in Creole, without incident. APD has alleged that Ms. Murat and Ms. Cadet were not fluent speakers of English and thus were incapable of communicating effectively in the official language of the state of Florida.3/ This allegation was not proved. That Ms. Murat insisted upon using her primary language when speaking with law enforcement officers, who were investigating a fatal event that had just recently occurred in her presence, shows good judgment, not a lack of communication skills. At any rate, the evidence persuades the undersigned to find that both women likely were able to speak English with sufficient proficiency to make themselves understood in ordinary circumstances. More important, however, as will be discussed below, the law does not require that direct service providers such as Ms. Murat and Ms. Cadet be capable of communicating effectively in English, but rather that they be capable of communicating effectively. Needless to say, speaking in English is not the only way to communicate effectively; nor, for that matter, is talking necessary for effective communication. APD investigated the circumstances surrounding the death of V.H.-D., and in so doing reviewed DM1's business records, including the personnel file for Ms. Murat. APD claims that DM1 failed to maintain written evidence of Ms. Murat's qualifications as required by Florida Administrative Code Rule 65G-2.012(5)(b)(1978). This rule was substantially amended in 2014, however, and the recordkeeping requirement was repealed, effective July 1, 2014. See Fla. Admin. Code R. 65G- 2.012 (2014). There is no persuasive evidence in this record to support a finding that DM1 failed to comply with the former version of rule 65G-2.012 while it was in effect.4/ It is undisputed that DM1 did not terminate Ms. Murat's employment, or otherwise discipline her, as a result of V.H.-D.'s death. On January 16, 2015, an APD employee named Sabah Bissainthe made an unscheduled visit to the Home to conduct an inspection. Upon her arrival, she encountered Sinclair Concin, who worked for DM1. Mr. Concin, who was not expecting visitors, called Mrs. Naomi Madistin for guidance when he realized that Ms. Bissainthe was a state employee performing official business. Mr. Concin put Ms. Bissainthe on the phone with Mrs. Madistin, and the two made arrangements for Mrs. Madistin to meet Ms. Bissainthe at the Home as soon as Mrs. Madistin could get there, which she did within an hour. Mrs. Madistin cooperated fully with Ms. Bissainthe. Ms. Bissainthe was not refused entry to the Home or forbidden from inspecting any part of the facility, contrary to APD's allegations. Mr. Concin's primary language is Creole, which Ms. Bissainthe does not speak. APD alleged that Mr. Concin does not speak English, but the evidence fails to prove that charge, which would not, at any rate, be a disciplinable offense, without more. APD further asserted that Mr. Concin is unable to communicate effectively because he did not converse in English with Ms. Bissainthe. The evidence shows, however, that Mr. Concin and Ms. Bissainthe did communicate effectively, notwithstanding that each spoke a different primary language, because Mr. Concin proved capable, in fact, of accomplishing the task when the circumstances required that he accommodate an APD investigator who had appeared unannounced at the doorstep of the Home. On February 18, 2015, an investigator from the Attorney General's office, Paul Valerio, paid an unannounced visit to the Home in connection with a matter unrelated to V.H.-D.'s death. Neither Mr. nor Mrs. Madistin was on-site at the time, so Mr. Valerio called Mr. Madistin to let him know that an official investigation was under way. The two men agreed that Mr. Valerio would meet with Mrs. Madistin at the Home the next day, and that meeting took place as planned. Mrs. Madistin fully cooperated with Mr. Valerio, who completed his investigation without difficulty. The evidence does not establish that Mr. or Mrs. Madistin was unavailable or uncooperative, as APD charged. Ultimate Factual Determinations Neither Ms. Murat nor Ms. Cadet abused, neglected, exploited, or harmed V.H.-D., who received prompt and appropriate medical treatment on the day he died. Moreover, Ms. Murat and Ms. Cadet were mentally competent to perform their duties as direct service providers. The evidence, therefore, does not establish the violations of sections 393.13(3)(a), 393.13(3)(g), and 393.13(4)(c), Florida Statutes; and Florida Administrative Code Rules 65G-2.008(1)(h) and 65G-2.009(1)(d) set forth in Count I of the Administrative Complaint. The evidence failed to establish that Ms. Murat and Ms. Cadet, or either of them, were (i) incapable of demonstrating effective communication or (ii) not mentally competent to perform their jobs as direct service providers. Thus, the violations of rules 65G-2.008(1)(g) and 65G- 2.008(1)(h) alleged in Count II were not proved. The charges brought in Count III of the Administrative Complaint are duplicative of the charges set forth in Count I and fail for the same reasons of fact. The charges in Count IV are based on allegations that DM1 failed to maintain adequate personnel records for Ms. Murat, in violation of outdated provisions Florida Administrative Code Rule 65G-2.012(5)(1978), which expired on July 1, 2014, when a new version of the rule took effect. The evidence failed to show that DM1 violated the former rule at any time during its existence. The charges brought in Count V of the Administrative Complaint are duplicative of the charges set forth in Count II and fail for the same reasons of fact. The allegations of Count VI largely overlap those of Counts I and III, with the additional allegation that DM1 failed to fire Ms. Murat or suspend her employment. While it is true that Ms. Murat was not punished as a result of V.H.-D.'s death, DM1's decision not to take such action does not constitute a disciplinable offense, and the remaining allegations of Count VI fail for the same reasons of fact that doom the charges set forth in Count I. The charges in Count VII are based on allegations that Sinclair Concin (i) was unable to communicate effectively with Sabah Bissainthe and (ii) refused to allow Ms. Bissainthe to enter the Home to conduct an investigation, thereby putting DM1 in violation of rules 65G-2.008(1)(g), 65G-2.008(1)(h), and 65G- 2.0032(3). The evidence showed, however, that Mr. Concin did communicate effectively with Ms. Bissainthe, and that he let her into the Home. Therefore, the charges were not proved. In Count VIII, APD charged DM1 with failure to have a facility operator (manager) on-site or on call at all times, in violation of rule 65G-2.012(1)(a). This charge was based on the allegation that when investigator Paul Valerio arrived at the Home for an unscheduled visit, neither Mr. Madistin nor his wife was in the residence. Mr. Valerio was able immediately to reach Mr. Madistin by phone, however, and make plans to meet with Mrs. Madistin the following day. Thus, the charge set forth in Count VIII was not proved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order finding that Daniel Madistin LLC #1 is not guilty of the offenses charged in the Amended Administrative Complaint. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S 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 25th day of November, 2015.
The Issue The issue is whether Petitioner's application for an initial license to operate an Assisted Living Facility should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this licensure dispute, Petitioner, Fosset Home for the Elderly, seeks an initial license to operate an Assisted Living Facility (ALF) in Jacksonville, Florida. In a preliminary decision issued on June 8, 1999, Respondent, Agency for Health Care Administration (AHCA), denied the application on the grounds that on April 8, 1998, Petitioner's owner had "pled guilty to operating an unlicensed [ALF] and [was] placed on 24 months' probation," and that her probation conditions prohibited her "from operating or maintaining an [ALF]." Petitioner denied the allegations and contended that its owner had met all terms of probation; that its owner had not been adjudicated guilty of the charges; that the denial was based on "erroneous facts"; and that AHCA had abused its discretion. Petitioner's owner is Shirley I. Fosset, a certified nursing assistant. Although the record is not altogether clear, it appears that several years ago, perhaps in 1994 or 1995, she assumed ownership of a licensed ALF known as Barlow Community Home in Jacksonville, Florida. It is undisputed that while operating that facility, Fosset was not cited for failing to adhere to AHCA regulations. Because the prior owner would not keep the facility's building in good repair, however, Fosset decided to move to a new location when it came time to renew the license, and to seek a new license under her own name. While seeking a new license, she continued to "knowingly" operate an ALF after her old license had expired. Sometime during the first half of 1997, but prior to June 19, 1997, Fosset was advised by AHCA to obtain a license within ten working days or else be subject to prosecution. Fosset then filed an application for licensure on an undisclosed date, but it was deemed incomplete because it lacked a legible fire marshal's report; zoning verification; sanitation and inspection reports; and a completed assets, liabilities, and statement of operation form. There were also unpaid license fees. Although she later submitted a legible fire marshal's report and paid the fees, the application was never determined to be complete and was therefore denied. On February 26, 1998, an information was filed by the Duval County State Attorney against Fosset charging that on June 19, 1997, she was operating an unlicensed ALF in Duval County, a third degree felony. On April 9, 1998, Fosset pled guilty to the charge, and adjudication of guilt was withheld. She was placed on supervised probation for 24 months, and one condition of probation prohibited her from "operating and maintaining an adult living facility" during her probationary period. According to Petitioner, her term of supervised probation was terminated on April 30, 1999, or prior to the original two-year period, and this was not contradicted. If this is true, then the condition that she not operate an ALF during her probationary period has also expired. The state attorney's office notified AHCA of Fosset's guilty plea by letter dated April 24, 1998. After receiving the letter, AHCA issued an Amended Administrative Complaint against Fosset on June 8, 1998, charging her with operating an unlicensed ALF. The parties eventually entered into a Joint Stipulation on July 7, 1998, wherein Fosset agreed to pay a fine, and a Final Order was entered on August 21, 1998, accepting the stipulation. On an undisclosed date in 1998, Fosset filed a second application for licensure. This application was preliminarily denied on May 20, 1998, on the ground she had "pled guilty to operating an unlicensed ALF." When no request for a hearing was made, a Final Order confirming this action was entered by AHCA on July 1, 1998. A third application was filed by Petitioner with AHCA on April 28, 1999, by which she again sought an initial license authorizing the operation of a five-bed ALF at 1244 Edgewood Avenue, West, Jacksonville, Florida. On May 25, 1999, the application was denied under Section 400.414(1)(m), Florida Statutes, on the grounds Fosset had pled guilty to operating an unlicensed ALF, and the terms of her probation prohibited her from operating such a facility. On June 8, 1999, AHCA amended its earlier letter and added Section 400.414(3), Florida Statutes, as an additional statutory ground for denying the application. The latter statute authorizes AHCA to deny an application whenever an applicant has been denied an application within the preceding five-year period. This controversy followed. Petitioner concedes that she operated a facility without a license after being told to cease operations, but she did so only because she did not wish to "throw [her clients] out on the street," especially since none of them had other family or another facility in which to be placed. Despite being well- intentioned, Fosset nonetheless violated the law by continuing to operate without a license. Petitioner also points out that she has attempted in good faith on no less than three occasions to obtain a license. However, the first application was denied for technical reasons (incompleteness), and there is no record evidence that all of the missing items were ever submitted. Her last two efforts were properly rebuffed because Petitioner had continued to operate an ALF without a valid license. Finally, there is no dispute that Petitioner desires a license because she is truly committed to assisting elderly persons.
Recommendation Based on 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 application for an initial license to operate an Assisted Living Facility. DONE AND ENTERED this 10th day of September, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of September, 1999. COPIES FURNISHED: William Roberts, Jr., Esquire 816 Broad Street Jacksonville, Florida 32202-4754 Michael O. Mathis, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issue is whether Respondent properly denied Petitioner's renewal application for an assisted living facility license.
Findings Of Fact On June 18, 2001, Petitioner filed a renewal application for an ALF license with limited mental health. On June 21, 2001, Respondent issued an Administrative Complaint in AHCA Case No. 04-01-0019-ALF. The complaint alleged that Respondent had cited Petitioner for one Class I deficiency and one unclassified deficiency during an appraisal visit on May 30, 2001. Specifically, the complaint alleged as follows: Petitioner had an interest in more than one facility and was providing personal services to residents within a facility that was not licensed in violation of Section 400.419(8), Florida Statutes (2000), resulting in an unclassified deficiency; and Petitioner was not in compliance with building construction codes and the documented evidence of violation put residents in immediate danger of death or serious physical harm in violation of Section 400.444(1), Florida Statutes (2000), resulting in a Class I deficiency. The complaint also stated that Section 400.419(8), Florida Statutes (2000), and Rule 58A-5, Florida Administrative Code, authorized the imposition of a $5,000 administrative fine for each of the alleged violations. By letter dated June 27, 2001, Respondent advised Petitioner that a conditional ALF license with limited mental health had been issued effective June 19, 2001, through September 18, 2001. The letter indicates that the conditional license was issued because of deficiencies cited during a survey of Petitioner's facility. On September 12, 2001, Respondent issued a Final Order in AHCA Case No. 04-01-0019-ALF. The Final Order was filed with Respondent's Clerk on September 20, 2001, and served on Petitioner by U.S. mail on September 21, 2001. The Final Order states that Petitioner had not requested an administrative hearing. Finding that Petitioner's failure to request a hearing constituted a waiver of the hearing rights and an admission of the alleged facts, the Final Order imposed an administrative fine in the amount of $10,000. On October 2, 2001, Respondent, through her attorney, filed a Motion to Reopen Record with Respondent. The motion asserted that, through no fault of her own, Petitioner failed to respond to the Administrative Complaint. Specifically, the motion claimed that Petitioner's attorney was in the process of winding down his then-existing law partnership and that in the course of packing, the file pertaining to the administrative proceeding and his instructions as to a response were apparently misplaced. By letter dated October 4, 2001, Respondent advised Petitioner that a conditional ALF license with limited mental health had been issued. The conditional license was effective September 19, 2001, through December 18, 2001. The letter advised Petitioner that all fines had to be paid before a standard license could be issued. On November 7, 2001, Respondent issued an Order Denying Motion to Reopen Record. On December 20, 2001, Respondent issued a Notice of Intent to Deny Petitioner's ALF license renewal application due to her failure to pay the administrative fines in AHCA Case No. 04-01-0019-ALF in the amount of $10,000. This instant administrative proceeding followed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter an order denying Petitioner's application to renew her ALF license. DONE AND ENTERED this 4th day of February, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 4th day of February, 2003. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Lamar Winegeart, III, Esquire Winegeart Law Firm, P.A. 2220 Riverplace Tower 1301 Riverplace Boulevard Jacksonville, Florida 32207 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
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
