The Issue The issue is whether the Respondent, Agency for Health Care Administration (AHCA), should pay the Petitioners attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ the Florida Equal Access to Justice Act, for initiating DOAH Cases 10-0528, 10-1672 and 10-1673.
Findings Of Fact Avalon and Avalon II are licensed assisted living facilities (ALFs) in Orange County. In 2009, they were owned and operated by Robert Walker and Chiqquittia Carter-Walker. Each had no more than 25 employees and a net worth of not more than $2 million (making them small business parties under section 57.111). On December 4, 2009, AHCA filed an administrative complaint against Avalon (DOAH Case 10-0528). The administrative complaint alleged that Avalon was guilty of three Class II deficiencies, which are deficiencies that directly threaten the physical or emotional health, safety, or security of a resident. Count I alleged that Avalon falsified employee training documentation (cited as Tag A029) to deliberately misrepresent the level of information and skill possessed by a staff member. Count II alleged that Avalon failed to provide appropriate medication to a terminally ill resident (cited as Tag A427), resulting in unnecessary pain suffered by the resident. Count III alleged that Avalon failed to provide one resident with a prescribed nutritional supplement and two residents with appropriate pain-relieving medications, including the resident identified in Tag A427 (cited as Tag A700). Count IV alleged that the licenses of Avalon and Avalon II should be revoked under section 408.812(5), Florida Statutes (2009),2/ because they or their owners and operators ("controlling interests" under section 408.803(7)) operated a third, unlicensed ALF and because of a demonstrated pattern of deficient performance at Avalon. The first three counts of the administrative complaint were based on the results of an inspection (survey) of Avalon's facility completed on July 23, 2009. As to Count I, it was discovered during the inspection that training certificates for one Avalon staff member were not accurate and falsely indicated that the employee received required training, which the employee denied. Avalon disputed the employee's statement, offered explanations for some of the anomalies in the training certificates, and pointed out that Avalon still had time to provide some of the required training, but the employment was terminated before the time would have run out. Avalon also pointed to various mistakes and confusion in the survey report to attack its overall credibility. Nonetheless, the information in the survey report was a reasonable basis in fact to charge Avalon in Count I. Section 429.19(2)(b) provided a reasonable basis in law to file an administrative complaint seeking to fine Avalon for the violation alleged in Count I. As to Count II, the inspection revealed that a terminally ill resident, who no longer met the criteria for continued ALF residency, was allowed to remain in the ALF subject to the coordination of hospice care, the provision of additional medical services, and the development and implementation of an interdisciplinary care plan that adequately designated responsibility for the various kinds of care required by the resident. The inspection revealed that the resident did not receive medication for pain management, which had been authorized by the resident's physician, and suffered pain unnecessarily during the early morning hours of July 13, 2009. The inspection concluded that Avalon was responsible. Avalon disputed some of the findings in the survey report regarding this resident. Specifically, Avalon disputed statements in the survey report to the effect that there was no interdisciplinary plan in place and being implemented at the time. Avalon also contended that the allegations in Count II were based on inadequate investigation by unqualified personnel (i.e., not medical professionals), which resulted in a misunderstanding by the inspectors regarding how a hospice patient is treated in an ALF. The crux of the findings in the survey report and of the allegations in Count II was that Ms. Carter-Walker, who is a nurse and was the only ALF staff member authorized to administer medications to residents, as well as the administrator in charge of the ALF, had the facility's medication cart locked and made herself unavailable to authorize that it be opened during the evening hours of July 12 and early morning hours of July 13, 2009, resulting in the inability of anyone to administer the resident's pain medication for five hours when it was needed by the resident, as ordered by the resident's physician. This was a reasonable basis in fact to charge Avalon in Count II of the administrative complaint (even if there may not have been a reasonable basis for each and every allegation in Count II). Section 429.19(2)(b) provided a reasonable basis in law to file an administrative complaint seeking to fine Avalon for the violation alleged in Count II. Count III of the administrative complaint repeated the allegation in Count II and added allegations regarding two other residents. One of the other two residents was alleged to have had a history of weight loss and been prescribed a daily can of "Ensure" nutritional supplement, but did not receive the supplement, as ordered, because the facility had not obtained or provided it to the resident. Avalon contended that there were no medical records, facility records, or any other documentation submitted to substantiate the claim about the Ensure. It is true that the survey report did not include such supporting documentation, and no such supporting documentation was introduced in evidence in this case. However, the survey report indicates that AHCA staff reviewed Avalon's records on July 14, 2009, and that there was a health care provider order dated June 16, 2009, on file for one can of Ensure a day, and a Medication Observation Record showing none was provided to the resident in June or July. The report also indicates that Ms. Carter-Walker confirmed that no Ensure had been provided to the resident and telephoned the pharmacy to see if the pharmacy had received the order. This was a reasonable basis in fact to charge Avalon regarding the Ensure in Count III of the administrative complaint. The other resident mentioned in Count III was alleged to have had a history of hypertension and hypothyroid issues and to have been prescribed a daily Ibuprofen (400mg) for pain, but Avalon's medication records allegedly indicated that the medication had been provided to the resident twice on some days and not at all on other days. Avalon points out the vagueness of some of the evidence AHCA had to support this charge (namely, the statement of a former employee about an unknown date in June 2009 when the resident did not receive any pain medication), the confused and inconsistent testimony of AHCA's inspector and her supervisor as to the basis in fact for this allegation, and the absence of the medical records for this resident from the evidence introduced in this case. Nonetheless, the statements in the survey report reflecting that Avalon's records were reviewed by the AHCA inspectors were a reasonable basis in fact to include these allegations in Count III of the administrative complaint. Avalon complains that Count III repeated the allegations in Count II in order to combine with and elevate the other two deficiencies in Count III from Class III deficiencies to Class II deficiencies. While there may be no specific statutory or rule authority for doing so, Avalon does not point to any rule or statute prohibiting doing so, and AHCA had a reasonable basis in fact to take the position that the three alleged deficiencies, combined, were Class II. Section 429.19(2)(b) provided a reasonable basis in law to file an administrative complaint seeking to fine Avalon for the violations alleged in Count III. The allegation in Count IV of the administrative complaint that at an unlicensed facility was being operated by the owners and operators of Avalon and Avalon II on August 5, 2009, was supported by the report of an inspection (survey) of the facility on that day. As stated in the survey report, Mrs. Carter-Walker arrived and identified herself to the AHCA inspectors as the administrator of the facility. She was known to them as the administrator of Avalon and Avalon II, as well. It also was reported that she identified herself as the administrator of the facility to other care providers, including a clinical social worker, a registered nurse providing contract health care services to facility residents, and administrators at other local ALFs. In addition, according to the statements of an employee at the facility, there had been residents at the facility since at least June 16, 2009, which was when the staff member began to work at the facility. The employee worked providing resident services five days a week. According to the employee, there were always at least three residents in the facility, and the same residents were present on a day-to-day basis. There was no indication that those residents were transported out of the facility during the evening for some reason or that they did not otherwise remain in the facility overnight. A licensed practical nurse present at the facility on August 5, 2009, was the person who permitted the Agency's inspector to enter the facility. The nurse was there to provide personal care assistance to a terminally ill resident receiving care through an agreement between Mrs. Carter-Walker, as the facility's administrator, and hospice. After Mrs. Carter-Walker arrived at the facility, she appeared to the inspector to be unhappy that the nurse had permitted the inspector to enter the facility and directed the nurse to leave the facility. During the inspection on August 5, 2009, a "Notice of Unlicensed Activity/Order to Cease and Desist" was issued to Mrs. Carter-Walker and to Robert Walker, who arrived during the inspection and identified himself as an owner of the facility. At no time during the inspection on August 5, 2009, did Mr. Walker, Mrs. Carter-Walker, or anyone else say that the residents in the facility did not spend the night at the facility, that the residents had a familial relation to the owners, or that the facility was exempt from or otherwise not required to comply with relevant ALF licensing requirements. To the contrary, on August 14, 2009, Mr. Walker and Mrs. Carter- Walker applied for an ALF license for the facility to cure the violation. Avalon and Avalon II contend that there was no reasonable basis in fact and law for Count IV of the administrative complaint because Mr. Walker and Ms. Carter-Walker ceased and desisted as ordered by AHCA and applied for licensure. They cite to section 408.812(3) and (5), which they say subjected them to penalties only if they failed to cease and desist. AHCA contends that section 408.812(5) did authorize revocation and other disciplinary actions. AHCA also contends that section 429.14(1)(k) authorized revocation or suspension and fines. AHCA's arguments are reasonable. Avalon and Avalon II point to section 408.832, which provides that chapter 408 prevails over chapter 429 in the case of a conflict. However, it is reasonable for AHCA to argue that there is no irreconcilable conflict between section 408.812(3) and (5) and section 429.14(1)(k). AHCA's legal arguments persuaded Judge Quattlebaum, whose conclusions of law in that regard were not addressed by the appellate court in reversing the final order that adopted them. For these reasons, the survey report for the inspection on August 5, 2009, provided a reasonable basis in fact and law for this allegation in Count IV. Count IV also alleged a demonstrated pattern of deficient performance by Avalon between 2007 and 2009, as reflected in the attached survey reports. These survey reports indicated that Avalon had numerous lesser deficiencies during that time period. As pointed out by Avalon, not everything listed in these surveys indicated an actual deficiency, and all the earlier deficiencies presumably were corrected. Nonetheless, the survey reports were a reasonable basis in fact to charge Avalon with a continuing pattern of inadequate performance and a failure to meet relevant standards. In addition, section 429.14(1)(e)2. authorized fines and revocation, suspension, or denial of a license for three or more Class II deficiencies and was a reasonable basis in law to charge Avalon in Count IV. AHCA gave notice of intent to deny the license renewals for Avalon and Avalon II because of the unlicensed operation of an ALF and because their licenses were "under revocation." The first ground has been addressed. As to the latter, Avalon and Avalon II contend that there was no reasonable basis in fact and law because no final action revoking their licenses had been taken. However, the pending administrative complaint to revoke their licenses was a reasonable basis in fact and law to give notice of intent not to renew them.
The Issue The issues in DOAH Case No. 10-0528 are whether the allegations set forth in the Administrative Complaint dated December 4, 2009, are correct, and, if so, what penalty should be imposed. The issue in DOAH Case No. 10-1672 is whether the application for license renewal filed by Avalon's Assisted Living LLC, d/b/a Avalon's Assisted Living and d/b/a Avalon's Assisted Living at Avalon Park (hereinafter Avalon I), should be approved. The issue in DOAH Case No. 10-1673 is whether the application for license renewal filed by Avalon's Assisted Living II LLC, d/b/a Avalon's Assisted Living at Southwest (hereinafter Avalon II), should be approved.
Findings Of Fact Avalon I is a six-bed assisted living facility (ALF), operating at 1250 Willow Branch Drive, Orlando, Florida, 32828, and holding license number 10813 with Limited Nursing Services licensure. Avalon II is a six-bed ALF operating at 13230 Early Frost Circle, Orlando, Florida, 32828, and holding license number 11318 with Limited Nursing Services licensure. Avalon I and Avalon II are operated by a limited liability company owned by Chiqquittia Carter-Walker and Robert Walker. Mrs. Carter-Walker acts as the administrator of the facilities. On July 23, 2009, the Agency conducted an inspection of Avalon I and determined that there were three "Class II" deficiencies, commonly cited as "tags" in reference to applicable regulatory standards. Tag A029 alleged that the training certifications, contained within the facility's personnel files to document the provision of required employee education, were false and that the training had not been provided. The training certificates for one Avalon I staff member were not accurate and falsely indicated that the referenced employee received training that had not been provided. The falsification was deliberate and was not erroneous. The inaccurate documentation of employee training misstated the qualifications of the ALF staff, falsely indicated that the staff was adequately trained, and presented the potential for harm to the health of the residents. The Agency correctly identified the deficiency as Class II. Tag A427 was based on regulatory provisions that permitted a terminally ill resident, no longer meeting the criteria for continued ALF residency, to remain in the ALF under certain conditions. The July 23, 2009, inspection indicated that such a resident continued to reside at Avalon I without compliance with relevant conditions. The conditions under which the terminally ill resident was permitted to remain at the ALF required that the hospice coordinate the care and provision of additional medical services and that an interdisciplinary care plan be developed and implemented by the hospice in coordination with the ALF. The July 23, 2009, inspection revealed that the interdisciplinary care plan failed to adequately designate responsibility for the various kinds of care required by the resident. The inspection revealed that a terminally ill resident remained in Avalon I without receiving appropriate medication for pain management even though such medications had been authorized. Although the ALF had undertaken the responsibility of administering the pain medication, there were occasions when no Avalon I staff member authorized to administer the pain medication was present at the ALF. Patient records indicated that the hospice representative attempted at several junctures to contact Mrs. Carter-Walker by telephone to resolve the problem and that Mrs. Carter-Walker was not accessible to the hospice representative. The resident unnecessarily suffered pain because the issue was not resolved in a timely manner. The failure to provide a terminally ill resident with appropriate pain medication resulted in a direct threat to the physical and emotional health of the resident, and, therefore, the Agency correctly identified the deficiency as Class II. Tag A700 reflects standards for resident care and requires that appropriate services be provided to residents. The July 23, 2009, inspection indicated that one resident was not being provided a nutritional supplement and that two residents were not being provided appropriate pain-relieving medications. As to the provision of nutritional supplementation, one resident with a history of weight loss had been prescribed a daily can of "Ensure" nutritional supplement. According to the facility records, the supplement had not been acquired by the ALF and had not been provided to the resident. As to the residents who were not receiving proper pain medication, one of the two was the terminally ill resident referenced in relation to Tag A427. As stated previously, the resident unnecessarily suffered pain because medication was not appropriately administered, which resulted in a direct threat to the health of the resident. Therefore, the Agency also correctly identified the deficiency cited as Tag A700 as Class II. The second resident had a history of hypertension and hypothyroid issues and had been prescribed a daily Ibuprofen (400mg) for pain. The Avalon I medication records indicated that, on some days, the medication had been provided twice daily to the patient, and, on other days, it had not been provided at all. The evidence establishes that the deficiencies identified in Tags A427 and A700 indicate a failure of the ALF to provide appropriate care and service to the residents of the facility. According to the uncontroverted testimony of Agency investigators as documented by the reports of their inspections, numerous lesser deficiencies were identified at Avalon I between 2007 and 2009, constituting a continuing pattern of inadequate performance and a failure to meet relevant standards. On August 5, 2009, an inspection conducted by the Agency at 1812 Crown Hill Boulevard, Orlando, Florida, 32828, indicated that an unlicensed ALF was operating at that address. On August 5, 2009, the Agency's investigator observed five individual residents in Avalon III. The investigator reviewed health assessments for the residents, all of whom required assistance with activities of daily living, including personal hygiene, ambulation, and meals. Medications for the residents were stored in a central area. The investigator reviewed medication observation records, indicating that the residents self-administered medications with observation by the Avalon III staff. Signage was present at Avalon III that identified Mrs. Carter-Walker as the administrator of the Avalon III facility. During the August 5, 2009, inspection, Mrs. Carter- Walker arrived at Avalon III and identified herself as the administrator of the facility. The investigator was familiar with Mrs. Carter-Walker and knew her as the administrator for Avalon I and Avalon II. Mrs. Carter-Walker identified herself as the Avalon III administrator to other care providers, including a clinical social worker, a registered nurse providing contract health care services to facility residents, and Administrators at other local ALFs. According to the testimony of an employee of Avalon III, there had been residents in the Avalon III location since at least June 16, 2009, at which time the staff member began to work at the facility. She worked five days per week, providing the resident services identified herein. During that time, there were always at least three residents in the facility. The same residents were present on a day-to-day basis. There is no evidence that such residents were transported out of the facility during the evening or that they did not otherwise remain at the Avalon III location overnight. A licensed practical nurse present at the Avalon III location on August 5, 2009, was the person who permitted the Agency's investigator to enter into the facility. The nurse was at the location to provide personal care assistance to a terminally ill resident receiving care through an agreement between the Mrs. Carter-Walker, as the facility administrator, and the hospice. After Mrs. Carter-Walker arrived at the Avalon III location, she was apparently unhappy that the nurse had permitted the investigator to enter the facility, and directed the nurse to leave immediately without providing further assistance to the resident. On the day of the investigation, the Agency investigator issued a "Notice of Unlicensed Activity/Order to Cease and Desist" to Robert Walker and Chiqquittia Carter-Walker for the Avalon III operation. Mr. Walker arrived during the inspection and identified himself as an owner to the Agency investigator. On August 14, 2009, the Agency received an application for licensure of an ALF at 1812 Crown Hill Boulevard, Orlando, Florida, 32828. The application, submitted by Robert Walker as the administrator, referenced the Avalon I and Avalon II as affiliated with Avalon III through ownership. Both Mr. Walker and Mrs. Carter-Walker submitted affidavits of compliance with background screening requirements as part of the Avalon III application. At no time was Avalon III licensed as an ALF. There was no evidence that the Avalon III residents were related to Mrs. Carter-Walker or her husband. There was no evidence that Avalon III was exempt from, or otherwise not required to comply with, relevant ALF licensing requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order revoking the licenses of Avalon I and Avalon II, denying the applications for license renewal filed by Avalon I and Avalon II, and assessing an administrative fine in the amount of $3,000 for the specific Class II deficiencies identified herein. DONE AND ENTERED this 28th day of January, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2011.
