Conclusions Having reviewed the Administrative Complaint dated July 27, 2010, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Ex. 2) with the parties to these proceedings, and being 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. | The Respondent shall pay, within thirty (30) days of the date of rendition of this Order, an administrative fine of three thousand two hundred and seven dollars ($3,207.00) to the Agency. Filed January 18, 2011 2:24 PM Division of Administrative Hearings 3. Checks should be made payable to the “Agency for Heaith 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 shail bear its own costs and attorney’s fees. 6. The Respondent’s petition for formal administrative proceedings is hereby withdrawn. 7. The above-styled case is hereby closed. DONE and ORDERED this [ 3 day of Jensen , 2011, in Tallahassee, Leon County, Florida. Elizabeth Du Interim Secretary 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: William N. Asma, Esq. Attorney for Respondent Julie’s Retirement Resort, Inc., #2 P.O. Box 681365 Orlando, Florida 32818 James H. Harris, Assistant General Counsel Agency for Health Care Admin. Office of the General Counsel 525 Mirror Lake Drive North, #330D (U.S. Mail) St. Petersburg, Florida 33701 (Interoffice Mail) Jan Mills Agency for Health Care Admin. Agency for Health Care Admin. 2727 Mahan Drive, Bidg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) Daniel Manry, Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalahcee Parkway Tallahassee, Florida 32399-3060 (Electronic 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 LF day of Richard Shoop, Agency Cle Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
Findings Of Fact Petitioner, Thelma S. Malmberg, is a 47-year old director of nursing at Americana Health Care Center (Americana) in Winter Park, Florida. Americana is a 138-bed skilled nursing facility. She has been employed at that facility since October, 1984. Prior to that time, she served as both director and assistant director of nursing at New Horizon Rehabilitation Center (New Horizon), a nursing home facility in Ocala, Florida, for approximately two years. Before that, she was manager of the quality assurance department at Marion Community Hospital in Ocala from 1974-1982, and at Munroe Memorial Hospital in Ocala from 1971-1974. Malmberg was also a registered nurse from 1968 to 1971. Using her lengthy experience in the health field, Malmberg made application for licensure as a nursing home administrator on April 26, 1984, with respondent, Department of Professional Regulation, Board of Nursing Home Administrators (Board). After reviewing the application and supporting documentation, the Board issued its proposed agency action in the form of a letter on May 30, 1984, advising Malmberg that her application was being denied on the grounds her "work experience and education appears to be limited to nursing," and that "additional detailed administrative experience is required to meet Florida's administrative standards in the health care area." The denial prompted the instant proceeding. According to statutory requirements, as codified in Section 468.1695, Florida Statutes, an applicant for licensure by examination must be 18 years of age or older, a high school graduate or equivalent, and meet one of four criteria in the educational and work experience areas. As is pertinent here, Malmberg contends she has had "24 years of practical experience in a related health administration area," and is therefore eligible to take the examination. The Board has promulgated Rule 21Z-11.09, Florida Administrative Code, which describes the practical experience in a related health administration area as follows: (2) function in a position of total responsibility for the operation and administration of a health care facility which treats and houses patients such as a hospital (or a major subunit thereof), adult congregate living facility of at least 50 beds, hospice, or infirmary. The applicant must show evidence of the performance and practical application of executive duties and management skills including planning, organizing, staffing, directing and controlling. The parties agree it is this experience which Malmberg must possess in to take the examination. In her present position as director of nursing at Americana, Malmberg supervises a 100-employee nursing department. She interfaces with all other departments of the nursing home, reports directly to the administrator, and acts as administrator in the administrator's absence. To date, however, the administrator has not been absent. While serving as director and assistant director of nursing at New Horizon, she supervised an 80-employee department, and reported directly to the nursing home's administrator. She also performed the duties of an administrator in the administrator's absence, which occurred for approximately 1 1/2 months during her total tenure with New Horizon. In both Americana and New Horizon, Malmberg has been responsible for planning, organizing, staffing, directing and controlling the nursing department. From 1974 till 1982, Malmberg was the manager of the quality assurance department of a large hospital in Ocala. The quality assurance department is considered a major department within the hospital and Malmberg had responsibility for planning, organizing, staffing, directing and controlling its various functions as well as interfacing with other departments. On this job, she reported directly to the hospital administrator. Malmberg has also attended various seminars in the health field area over the last ten years or so, and served for six years on the Board of Directors of the Marion-Citrus Mental Health Center, a community mental health board. According to uncontroverted testimony of the Board's chairman, a director of nursing is not in a position of "total responsibility" within the meaning of the rule unless she is designated as a designee to act in the absence of the administrator. Further, the administrator must be absent for at least four years in order for the designee to fulfill the four years of practical experience requirements. In Malmberg's case, she has acted in the administrator's stead for only a few months which is far short of the necessary time. Similarly, her supervision of a single hospital department for a number of years does not qualify for "total responsibility," nor does attending seminars add to her credentials. Therefore, she has not been in a position of total responsibility for the operation and administration of a health care facility for the requisite period of time and is presently unqualified for licensure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Thelma Malmberg for licensure by examination as a nursing home administrator be DENIED. DONE and ORDERED this 27th day of November, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-0675 FILED with the Clerk of the Division of Administrative Hearings this 27th day of November, 1984. COPIES FURNISHED: John S. Lynch, Esquire Post Office Box 696 Ocala, Florida 32678 Lawrence S. Gendzier, Esquire Room 212, 400 West Robinson St. Orlando, Florida 32801
Conclusions THE PARTIES have resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE AND ORDERED on this the /7 day of flere. , 2013, in Tallahassee, Leon County, Florida. Micrsp Beth Shafer lov Elizabeth Dudek, Secretary # Agency for Health Care Administration Filed June 24, 2013 8:39 AM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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: Doris Torres, Administrator Don C. Freeman, Esquire Westwood Boarding Home ALF Assistant General Counsel 5301 SW 116th Avenue Agency for Health Care Administration Miami, FL 33165 2727 Mahan Drive, MS #3 (U.S. Mail) Tallahassee, Florida 32308 (Interoffice Mail) Richard Zenuch, Bureau Chief Finance and Accounting Medicaid Program Integrity (Interoffice Mail) (Interoffice Mail) HQA (via email) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served to the above named addresses by U.S. Mail this Drie C Jung ——, 2013. Agency for Health Care Administration 2727 Mahan Drive, Bldg. 3, Mail Stop #3 Tallahassee, Florida 32308-5403 (850) 412-3630
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be subjected to a fine or sanction for retaining a resident with a State II "pressure ulcer" at its Northpointe Retirement facility (hereinafter Northpointe) and if so, in what amount. It also must be resolved whether the Respondent has been maintaining incomplete file documentation concerning its staff and, if so, whether such violations should be the subject of a fine.
Findings Of Fact The Agency for Health Care Administration (Agency) is an agency of the State of Florida executive branch responsible for the licensing and regulation of assisted living facilities in the state. The Agency filed the Administrative Complaints which engendered the subject dispute. The Agency, however, has dismissed its Administrative Complaint which gave rise to Case No. 99-4616, because the Agency since learned information which would make the prosecution of that case, involving the Stage II decubitis ulcer, inappropriate. The Respondent corporation by and through its president and owner, Mohamed Mikhchi, is an ALF. The corporation and Mr. Mikhchi are duly licensed and authorized to do business in Florida as an ALF. Upon being served with the Administrative Complaints, the Respondent timely availed itself of its right to a formal proceeding pursuant to Sections 120.57 and 120.569, Florida Statutes. Ms. Jacqueline Klug was called as a witness for the agency. She investigates complaints against state-licensed facilities. She has served in this position for approximately three years and is familiar with Northpointe because she participated in the original survey and the follow-up survey (see "Tag A213"). Composite Exhibit No. 1, identified by Ms. Klug, is a survey report of a complaint investigation conducted on February 9, 1998, by Ms. Klug. The Northpointe facility was not in compliance with appropriate rules, cited below, because on February 9, 1998, the employees working at the facility did not all have documentation that they were free from communicable diseases on file in the relevant personnel files maintained at the facility. A survey was also conducted as a later complaint investigation on October 7, 1999. Ms. Walker testified that she participated in that complaint investigation. She found that on October 7, 1999, the employee files in question were still incomplete and the deficiency concerning the inclusion of a record that each such employee was free from communicable disease had not yet been corrected. Indeed, an employee hired on September 16, 1999, and one hired on October 2, 1999, did not have the required nurses' licenses in each employee file. Ms. Karen Walker was called as a witness for the agency. She is a Health Facility Evaluator II. It is her business to survey ALF, hospitals and nursing homes. She has surveyed the Northpointe facility, participating in the survey of October 7, 1999. Ms. Walker cited Northpointe for incomplete employee files during the survey of October 7, 1999. Employee files of the two nurses did not contain a copy of the nurses' professional licenses. The Respondent established that the professional licenses had been earned by the nurses in question but simply had not yet been forwarded to the nurses and therefore to the personnel files by the state licensing agency, the Board of Nursing. The Respondent has also acted to correct the other above-found record deficiency.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, recommended that a final order be entered by the Agency for Health Care Administration finding the Respondent Northpointe Retirement Community guilty of the above deficiencies and the failure to timely correct them as found and concluded in more detail above, and imposing an administrative fine in the amount of $300.00. DONE AND ENTERED this 22nd day of May, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 22nd day of May, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration Building 3, Suite 3408D 1717 Mahan Drive Tallahassee, Florida 32308 Mohamed Mikhchi, Ph.D. Northpointe Retirement Community 5100 Northpointe Parkway Pensacola, Florida 32514 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 Tallahassee, Florida 32308
Conclusions Having reviewed the Notice of Intent to Deny dated May 20, 2009, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 2) with the parties 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. The Notice of Intent to Deny, as to the Petitioner's initial application for licensure of the Facility, is deemed superseded by the Settlement Agreement. Filed July 10, 2009 2:22 PM Division of Administra1tive Hearings. The Petitioner's petition for a formal administrative proceeding is hereby dismissed. Upon the full execution of this Agreement, the Agency shall begin processing Petitioner's application. Each party shall bear its own costs and attorney fees. The above-styled case is hereby closed. DONE and ORDERED this _f!_day of d£4j in Tallahassee, Leon County, Florida. , 2009, Holly Ben n, Secretary Agency for ealth 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: Sharon Narriman Ally James H. Harris, 9718 Crenshaw Circle Assistant General Counsel Clermont, Florida 34711 Agency for Healthcare Admin. (U.S. Mail) Office of the General Counsel Sebring Building 525 Mirror Lake Drive North, #330H St. Petersburg, Florida 33701 (Interoffice Mail) Jan Mills Barbara J. Staros, Agency for Health Care Admin. Administrative Law Judge 2727 Mahan Drive, Division of Administrative Hearings Bldg #3, MS #3 1230 Apalachee Parkway Tallahassee, Florida 32308 Tallahassee, Florida 32399 (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 ts- method designated, on this the _K_ day of _--= =-=--7----' 2009. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 ' CHARLIE CRIST GOVERNOR Better Health Care for all Floridians HOLLY BENSON SECRETARY CERTIFIED MAIL RETURN RECEIPT REQUESTED May 20,-2009 Sharon Narriman Ally 9709 Crenshaw Circle Clermont, FL 34711 RE: CC# 2009005797 Dear Ms. Ally: NOTICE OF INTENT TO DENY It is the decision of this Agency that Sharon Narriman Ally's initial application for an adult family care home (AFCH) license be DENIED. The Specific Basis for this determination is: Failure -to live in the Adult Family Care Home pursuant to Section 429.63(2), 429.65(2)(a), 429.67(2),.Floric:la Statutes (F.S.) and Chapter 58A-14.008(2)(a)2, Florida Administrative Code (F.A.C.). The applicant noted on page 1 of the AFCH license application that she does not live in the AFCH located at 9718 Crenshaw Circle, Clermont, FL 35711. Documentation submitted with the application indicates that the provider lives at 9709 Crenshaw Circle, Clermont, FL 35711; therefoi"e your application is being denied. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S. you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings_ under Section 120.57( I),. F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201; Florida Administrative Code (F.A.C.), and must state the material facts you dispute. EXHIBIT 1 2727 Mahan Drive, MS#30 Tallahassee, Florida 32308 Vl!llt AHCA onllne at http://ahca.myflorlda.com ·; Sharon Narriman Ally May 20, 2009 Page #2 SEE ATTACHED ELECTION OF RIGHTS FORM s4 Jc.,dL Bemaro E. Hudson, Manager · Assisted Living Unit Bureau· of Long Term Care Services BEM/lrm Copy to: Alachua Field Office - 03 LTCOC Withlacoochee Jan Mills, Mail Stop #3 'l STATE OF FLORIDA FIL.ED AGENcv FOR HEALTH cARE ADMINisTRATioN AGElc'f'tLERK RE: Sharon Narriman Uy CASE NO: 2009005797 2ooq JUN - 2 P 1.J: 2 I · ELECTION OF RIGHTS This Election of Rights form is attached to a proposed Notice of Intent to Deny of the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Deny or some other notice of intended action by AHCA. An .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 Deny or any other proposed action by AH CA. If an 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, you will have given up your right to contest the Agency's proposed action and a final order will be issued. --- -(Please reply using this ElectionofRi&hts.form unlessyou,.your attorney...QQ:our re r e=se=n=ta=ti ·v e----- prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) Please return your ELECTION OF RIGHTS to: ·Agency for Health Care Administration Attention: Agency Clerk. 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Phone: (850) 922-5873 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 Jhe Notice of Intent to Deny, or other notice of intended action by AHCA and I waive my right to object and have a bearing. 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 proposed penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in .the Notice of Intent to Deny, or other proposed action by AHCA, 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) L I dispute the allegatio s of fact contained in the Notic_e of Intent to Deny or other proposed action by AHCA, and I request a formal hearing (pursuant to Section 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 Subsection 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.201, Florida Administrative Code, which reguires that it contain: · The name and address of each agency affected and each agency's file or identification number, if known; Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any; An explanation of how your substantial interests will be affected by the Agency's proposed action; A statement of when and how you received notice of the Agency's proposed action; A statement of all disputed issues of material fact. If there are none, you must state that there are none; A concise statement of the ultimate facts alleged, including the specific facts you contend warrant reversal or modification of the Agency's proposed action; . A statement of the specific rules or statutes you claim reQuire reversal or modification of the Agency's proposed action; and A statement of the relief you are seeking, stating exactly what action you wish the Agency to take with respect to its proposed action. (Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees.) License type: adult family care home Licensee Name: Sharon Narriman Ally Contact person: S Ji11 I{ 0 ,J Al fl l<./Zt IY'J fl ,J flJv1,_V ( O tiI ]) £ I( ) <t? Name Title Address: q7, 8 CA€AISfiRw et llE C G morJI FL 3 I/ Street and number City Zip Code 8 5"'2. 2.4-1 '3 b I 3 s 2-- 'i 8 i rs-o cg 4 Telephone No. Fax No. Email (optional) _ o 3S2S3bb003 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 lice see referred to above. Signed: ,dt0,tV6Vv Date: 1 Print Name: 81-f RR.orJ AU--'/ Title:----'f-R..;.;0....U;. I D!Sf-<_ .,; --- USPS Track & Confirm Page 1 of 1 Hl2mtl 1:1.l!R I .slQn..ln Track & Confirm Search Results Label/Receipt Number: 7160 390198482819 2134 Servlce(s): Certified Mau™ Status: Delivered Your Item was delivered at 11:41 AM on May 26, 2009 in CLERMONT, FL 34711. Track & Confirm Track & Confirm ,J.fll!JilJ Enter Label/l3ecelpt Numb r_.-···--- -··--. Detailed Results: Delivered, May 26, 2009, 11:41 am, CLERMONT, FL 34711 Notice Left, May 23, 2009, 2:51 pm, CLERMONT, FL 34711 Notification (!ptiotts .......... -... _._.._.. _........... .............. ..............---·--·..·-·................... ····-·········•··-··•····--..•·•·········-·--···········-· Track & Confirm by email Get current event Information or updates for your item sent to you or others by email. ( Ot>>) ...... ..... . . Return Receipt (Electronic) Verify who signed for your item by email. (.!!..) w SllllMaJl Customer Scum E.or!M !3oY'.t Servtces Copyrlght©2009 USPS. All Righi& Reserved. No FEAR Act EEO Data FOIA '(em1s 01Use • 1•, ·1\t 111 Js<--c',( -, t\ ,:-1,-.c; i .,;!·11•.10J; Business customer Gatuwil)' http://trkcnfrml.smi.usps.com/PTSintemetWeb/InterLabelinquiry.do 05/27/2009 04/0l/f 0§. 16:36 3523949956 -, ,I' ¥ U ' • ., •• A .., ._,. a I a• I,•• _,•I,• PAGE 01 ""'' il,"illJ, IJtJ.,;,! 1/J.tJ 1 J ),J STATE OF FLORIDA
The Issue The issue in this case is whether the licensee, Watch Care, Inc., should be fined for providing services beyond the scope of its adult day care license, and if so, in what amount.
Findings Of Fact Respondent, Watch Care, is licensed to operate an adult day care center at 100 West First Street, Atlantic Beach, Florida. The day care center is licensed to provide services to 30 people. An adult day care facility is only licensed to provide care-taking services for a limited period of time during the day. A day care facility cannot provide care-taking services 24 hours a day. At the time, Respondent was not licensed to provide 24-hour assisted living services. Watch Care's adult day care center is located in one side of a building at 100 West First Street. The entire building is owned by Watch Care. The other side of the building contained apartments or rooms in which two elderly people had resided for a number of years. The two areas were separated by a wall and had separate entrances. However, both areas had the same address. Even so, the separate area does not appear to have been included for review during any agency inspections done prior to January 27, 1999, since agency inspectors appeared to be unaware of the two occupants living in the separate area. Upon these facts, the evidence did not demonstrate that this separate area was part of the adult day care license. It does appear to be separate property owned by Watch Care and used for a purpose different from the adult day care center next door. Other than the corporation, no human owner lived on either of the two premises. In January 1999, Petitioner received an anonymous complaint that Respondent was running an unlicensed Assisted Living Facility (ALF). On January 27, 1999, the inspector for Respondent, for the first time found that two people were living next door to the adult day care. Respondent admitted that the two residents lived in the section of the building adjoining the adult day care. Prior to January 1999, Respondent believed that Florida Statutes permitted two unrelated people to reside at a facility without being licensed as an ALF. At some point Respondent discovered the law regarding unrelated residents had changed. By statute, Respondent had six months to comply with the changed law. Respondent moved the residents to another facility within the six months following the statute change. The two residents had been living next door to the adult day care center for more than two years. The residents had lived next door to the day care center at the behest and with the consent of both the residents and their families. During the daytime the residents went to Watch Care's adult day care center. While not at the day care, certain staff persons associated with Watch Care would perform care-taking services for the residents. The care-taking services were provided separate from any services the staff persons may have performed during their shifts at Watch Care and the services were not performed while working on their shift at Watch Care. Importantly, the evidence did not establish the terms of any written or oral contract or the parties to such a contract. In short, it is just as likely that these separate care-taking services were being provided and paid for separately by the two residents living in the separate part of the building. The evidence was insufficient to establish that Watch Care offered 24-hour care-taking services as part of its day care center program as opposed to providing such services as a private corporation entitled to enter into contracts separate from the day care center and its other business. At the time of the inspection, Respondent intended and eventually did apply for and became licensed as an ALF. The ALF license was issued on July 9, 1999, and is in effect to date. The ALF license covers the area of the building adjacent to the adult day care center where the two residents lived.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner Agency for Health Care Administration enter a final order finding Respondent Watch Care, Inc., not guilty of providing services beyond the scope of its license and dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of September, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 29th day of September, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Tallahassee, Florida 32308 Jamie Glavich, General Manager Watch Care, Inc. 100 West First Street Atlantic Beach, Florida 32233 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
