Conclusions THIS CAUSE is before me for issuance of a Final Order. in a letter dated May 18, 2011, C.I. No. 10-1269-800, Naples Community Hospital, Inc. (“Respondent”) was informed that the State of Florida, Agency for Health Care Administration (“AHCA” or “Agency”) was seeking to recoup Medicaid overpayments in the amount of Twenty-Seven Thousand, Seven Hundred Thirty-Six Dollars and Fifty-Two cents ($27,736.52). The Respondent was further informed in the letter that the Agency assessed Two Thousand, Four Hundred Forty-Four Dollars and Seventy-Two cents ($2,444.72) as costs for a total amount due of Thirty Thousand, One Hundred Eighty-One Dollars and Twenty-Four cents ($30,181.24). Pursuant to §409.913(6), Florida Statutes, the letter was sent Certified Mail, return receipt requested, to Respondent at the address last shown on the provider enrollment file. Page 1 of 4 Filed November 17, 2011 8:27 AM Division of Administrative Hearings AHCA v. Naples Community Hospital, Inc. Case No. 11-3317MPI Final Order A Petition for Administrative Hearing was received by the Agency on June 9, 2011. On July 1, 2011, the Petition was forwarded to DOAH by the Agency and assigned to an Administrative Law Judge (“Judge”). On August 25, 2011, the Respondent subsequently filed a Notice of Voluntary Dismissal with DOAH. The DOAH Judge entered an Order Closing File dated August 29, 2011, and therein remanded jurisdiction back to AHCA.
Conclusions THIS CAUSE comes before the Agency for Health Care Administration (“the Agency") concerning the Agency’s preliminary denial of HERNANDO-PASCO HOSPICE, INC.’s (“HPH”) Certificate of Need CON") 10121 to establish a serve bed inpatient. On August 19, 2011, the Agency issued and published its State Agency Action Report reflecting its initial decision to deny HPH’s CON 10121. On September 6, 2011, HPH timely filed a Petition for a Formal Administrative Hearing with respect to the Agency’s denial. Prior to a final hearing, HPH corrected and clarified the architectural information previously submitted. The Agency and HPH entered into a Settlement Agreement (Exhibit 1) with HPH. It is ORDERED that: 1, The Agency’s denial of the CON Application 10121 is hereby rescinded. Filed November 28, 2011 2:57 PM Division of Administrative Hearings 2. The parties shall comply with the terms of the Settlement Agreement. 3. That parties are responsible for their own attorney’s fees. 4. The above-styled case is hereby closed. DONE AND ORDERED this ‘2-2 day of Néve-42-_, 2011, in Tallahassee, ~ Florida. mS pe Elizab udek, Secretary Agency for Health Care Administration
The Issue Whether the doctrine of equitable tolling applies to excuse Respondent's failure to timely request administrative hearings regarding the Administrative Complaints filed against facilities 1, 2, and 3.
Findings Of Fact APD is the state agency charged with regulating the licensing and operation of group home facilities pursuant to section 20.197 and chapter 393, Florida Statutes. Angel Heart is a Florida registered corporation. Its corporate officers are Eartha Mays and Azjah Temple. Respondent's registered agent is Eartha Mays. The address for Azjah Temple, Eartha Mays, and the corporation is 18901 Southwest 106 Avenue, Suite A-111, Miami, Florida 33157. On January 23, 2020, APD filed ACs against the licenses of Angel Heart's group homes 1 through 4. According to the United States Postal Service, the ACs for group homes 1 through 3 were delivered to 18901 Southwest 106 Avenue, Suite A-111, Miami, Florida 33157, and signed for by Odra Kok at 12:06 p.m., on January 30, 2020. Odra Kok is the group home manager for Angel Heart's group home 3. On January 30, 2020, Ms. Kok happened to be in Respondent's administrative office and received and signed the certified mail receipts for the ACs related to group homes 1, 2, and 3. Ms. Kok placed the ACs on a table in the office and they were subsequently lost. Neither Ms. Mays nor Ms. Temple was in the office at the time Ms. Kok received the ACs. Angel Heart did not respond to the ACs for group homes 1, 2, and 3 within 21 days of January 30, 2020. On March 9, 2020, APD entered default final orders that revoked the licenses of group homes 1, 2, and 3. APD vacated the final orders in response to a motion filed by Respondent. Eartha Mays timely appealed the AC for group home 4. At the time the ACs were issued in January 2020, Angel Heart was already operating under a settlement agreement with APD regarding group homes 1 through 4 that resulted from one AC issued in May 2019 against all four group homes. The settlement agreement placed a number of requirements on Angel Heart, including attendance at quarterly meetings with APD officials to review compliance issues. The four identical ACs issued in January 2020 allege that Angel Heart failed to comply with certain terms of the settlement agreement. On February 5, 2020, one day after receiving the AC for group home 4, Eartha Mays emailed the AC to Kirk Ryon, APD's Regional Program Supervisor for South Florida, to get more information. Mr. Ryon did not inform Ms. Mays that three identical ACs had been issued for group homes 1 through 3. On February 14, 2020, Ms. Mays met with Kirk Ryon and other APD officials in person to conduct a quarterly meeting. The purpose of the quarterly meetings was to address any problems or complaints APD had with Angel Heart, including compliance issues. None of the APD officials at that meeting mentioned to Ms. Mays that there were a total of four ACs issued in January. On February 20, 2020, Ms. Mays filed her Request for Administrative Hearing with the APD Agency Clerk, Danielle Thompson, in response to the AC for group home 4. Although Ms. Thompson was aware of the existence of the other three ACs at the time of receiving the Request for Hearing on group home 4, Ms. Thompson did not call or correspond with Ms. Mays to inquire as to why she did not appeal the other three ACs. After filing her Request for Administrative Hearing, Ms. Mays emailed Trevor Suter, the APD attorney who authored all of the ACs, to make sure that her Request for Administrative Hearing had been received. Mr. Suter responded to that email later that same day, saying that he would make sure the clerk received it. Even though he had authored all four ACs, Mr. Suter did not call or correspond with Ms. Mays as to why she did not appeal the three other ACs. The allegations in all four ACs are identical as to Count I, and make no distinctions as to which allegations apply to which facility. Ms. Thompson found that the Request for Administrative Hearing filed by Angel Heart as to group home 4 was legally sufficient, including listing the facts alleged in the AC which were in dispute. Ms. Thompson testified that the only thing Angel Heart would have had to do to make the Request for Administrative Hearing applicable to all four ACs was to list the additional license numbers or style the title so it was clear that the appeal included all four group homes. Ms. Thompson explained that it is APDs standard procedure to give appellants who file timely, but legally deficient requests for hearing, multiple opportunities to amend their hearing requests to address deficiencies. Ms. Thompson will often call pro se appellants to advise of any deficiencies and permit them extra time to refile or amend their filing. Ms. Thompson indicated that as long as the petition for hearing was filed timely, she would allow appellants extra time to amend their petition even after the 21 days to appeal had expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities treat the pending Request for Hearing for group home 4 as an appeal of all four Administrative Complaints or, in the alternative, allow Angel Heart Support Services, Inc., an additional 21 days from the date of the Final Order to appeal the Administrative Complaints for group homes 1, 2, and 3. DONE AND ENTERED this 20th day of July, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 20th day of July, 2020. COPIES FURNISHED: Michael Paul Gennett, Esquire Polsinelli, P.C. 1111 Brickell Avenue, Suite 2800 Miami, Florida 33131 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 315C Tallahassee, Florida 32399-0950 (eServed) Danielle Thompson Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Blue Angel Enterprises, Inc., d/b/a Blue Angel Residences (“Blue Angel”), committed the statutory or rule violations alleged in the Amended Administrative Complaint and, if so, what penalty is authorized for such violations.
Findings Of Fact AHCA is the state agency charged with licensing of assisted living facilities (ALFs) in Florida, pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. AHCA is authorized to evaluate ALFs to determine their compliance with statutes and rules regulating their licensure and operation. Blue Angel, located in Tampa, Florida, has been a licensed ALF (#12211) since 2012 with an operating capacity of six beds. It is licensed to provide limited mental health services, participates in long-term care, and is a licensed adult daycare facility. Ms. Aussendorf owns the property, serves as Blue Angel’s chief financial officer (“CFO”), and also assists with clinical care because she is a nurse. Armando Vazquez, Ms. Aussendorf’s brother, serves as Blue Angel’s president and administrator. An ALF is a structure (whether a building, part of a building, or multiple buildings) that provides housing, meals, and one or more personal services to residents for at least 24 hours. These personal services typically include assistance with activities of daily living, such as bathing, dressing, ambulating, and feeding, among others. It also can include assistance with self-administration of medication, whereby the facility stores the medication in a locked cabinet, retrieves it, observes the resident taking it, and then documents that it was taken. When an ALF applies for a license, it typically submits floor plans of the facility along with reports from local fire, zoning, and health agencies to ensure the structure meets regulatory and safety standards. AHCA reviews the application materials and conducts an inspection of the structure(s) to be licensed. If approved, the license is issued for the particular structure(s) inspected. The property on which Blue Angel is located has two structures. The main building, located in the front of the property, has been licensed as an ALF since 2012. The back structure, located behind the main building, has never been licensed as an ALF. Ms. Aussendorf renovated the back structure in 2013, and lived in it for several months before “renting” it to four residents. Blue Angel’s characterization of these residents as independent, as opposed to assisted living, is one of the primary issues in this case. AHCA conducts inspections, called surveys, of licensed ALFs to determine their compliance with governing statutes and rules. AHCA has a right of entry to conduct surveys at licensed ALFs at any time. ALFs are subject to bi-annual surveys, during which surveyors tour the facility, review resident and staff records, and observe compliance with core standards, medication storage, and direct care to residents. Surveyors interview residents, family members, and staff. Complaint surveys are conducted when AHCA receives a complaint from the public, another agency, or anonymously; those surveys are focused to the area of concern. Revisit surveys are conducted to ensure that any deficiencies cited in a prior survey have been corrected. Surveyors also have authority to investigate unlicensed facilities if they suspect that unlawful activity is occurring, though entering an unlicensed building without the owner’s permission could be a violation of the owner’s rights. If an ALF is not in compliance with the law, AHCA classifies the deficiencies based on the level of threat to the safety and welfare of the residents. They are categorized as Class I, II, III, IV, or unclassified deficiencies. Class III deficiencies are the most common and involve an indirect threat to the health or well-being of the residents. AHCA typically gives the ALF 30 days to correct a Class III deficiency before seeking to impose a fine or penalty. An unclassified deficiency is one that does not meet the other classifications and often requires a fine or penalty to be assessed. A finding of unlicensed activity is treated as an unclassified deficiency, which often results in action being taken against the license. On January 9, 2018, AHCA’s surveyors, Mr. Brodsky and Mr. Jean-Gilles, conducted a complaint survey at Blue Angel for allegedly operating beyond its six-bed capacity. The complaint was not specific to the unlicensed back structure so the focus upon arrival was on the licensed main building. Upon arrival at 6:00 p.m., the surveyors spoke to Staff A about the complaint, told her to contact the owner, and requested the admission/discharge log. Although Ms. Aussendorf was not present initially, she arrived about 30 minutes later. Things were chaotic when the surveyors arrived due to a shift change and residents being moved around the facility, including out the back door and into the back structure. As a result, Mr. Brodsky inspected the main building, while Mr. Jean- Gilles went out back to inspect the unlicensed back structure. In the main building, Mr. Brodsky interviewed several residents, including Resident 1, who said he lived in the main building. Resident 1’s file contained a document showing an admission date of December 2016, which indicated he had dementia and needed assistance with bathing, dressing, and ambulation, among others. He also was apparently admitted back into Blue Angel from the hospital in July 2017. Ms. Aussendorf maintained that Resident 1 was only there as an adult day care patient and went home every day, though his daughter told Mr. Brodsky on the phone that evening that he lived there. The surveyors believed that seven residents (including Resident 1) were living in the main building, one more than Blue Angel’s license allowed. Meanwhile, Mr. Jean-Gilles went out back and spoke to Staff C. She permitted him to enter the back structure. He observed a common area with a bunkbed and kitchenette, one bedroom with two beds, and another bedroom with one bed. An unlocked cabinet in the kitchenette contained medication belonging to residents who lived in the main building and some who no longer lived in the facility. The majority of the medication was expired. Mr. Jean-Gilles observed Residents 14, 15, and 16 in the back structure, interviewed them, spoke to Resident 13 outside the back structure, and contacted family members.3/ Those interviews revealed the following: Resident 13 lives in the back structure and moved there from an ALF in Nebraska. Blue Angel provides her with meals, cleans her room, and brings a groomer for her dog. Resident 14 lives in the back structure and shares a room with another resident. Blue Angel assists her with bathing in the main building, changes her clothes, and provides her meals. She also uses a walker because she is not stable due to Parkinson’s Disease. Resident 15 lives in the back structure and has for about five weeks after being discharged from the hospital. She shares the bunkbed with Staff C. Blue Angel provides her with meals, assists her with medication, and assisted her with bathing initially. Her son confirmed that she has dementia and needs assistance with everything. Resident 16 lives in the back structure and shares a room with Resident 14. Blue Angel assists her with her medication. A nurse comes to check her blood pressure and arrange her medicine in organizers. Mr. Jean-Gilles interviewed Staff C during the survey and she informed him of the following: She lives in the back structure, supervises the residents at night, and helps them as needed. She assists all of them with their medication and confirmed they ate meals in the main building. She also sometimes fills in during day shifts. As to Resident 13, she bathes on her own in the back structure because she is in better shape than the others. But staff assists and watches her take her medication. As to Resident 14, Staff C or daytime staff assists her with bathing in the main building and changing her clothes because she is unstable and needs help. As to Resident 16, Staff C or daytime staff assists her with bathing in the main building and changing clothes. Mr. Jean-Gilles also interviewed Staff D during the survey and she informed him of the following: She has worked there for three years and, though the residents in the back structure are independent, they do need supervision and assistance. As to Resident 13, she is independent and staff does not need to help her with anything. As to Resident 14, she walks by herself but also occasionally uses a walker. Staff D supervises her when she bathes so she does not fall. Staff makes sure she takes her medication during snacks and meals, but she does it in her room. Resident 14 also has been incontinent and staff helps to clean her. As to Resident 15, she initially bathed in the main building, but now does so in the back structure. She is assisted with her medication by Ms. Aussendorf. As to Resident 16, she is independent. Staff does not watch her or give her medication. She showers in the back structure. Mr. Jean-Gilles also reviewed Blue Angel’s files pertaining to Residents 13, 14, 15, and 16, which were kept in the main building even though they lived in the back structure. All four residents executed residential leases with Blue Angel, signed by Ms. Aussendorf, whereby Blue Angel agreed to clean their rooms and assist them with laundry and meals. The leases prohibited the residents from having guests without prior written consent, required them to sign in/out before leaving the premises, and mandated that they be on the premises by 9 p.m. Resident 16 also signed an ALF contract with Blue Angel after she moved in, which indicated that her rent would start at $700 but increase to $1,500 once she was enrolled in a long-term care program. Residents 13, 14, and 16 each had ALF resident health assessment forms (AHCA Form 1823). These forms were completed by healthcare providers and confirmed that the residents needed assistance with personal services that would be met at an ALF. Each form listed Blue Angel as the licensed ALF, Ms. Aussendorf as the facility contact, and detailed the following information: Resident 13 (signed by Ms. Aussendorf on January 28, 2016) - she had schizophrenia-paranoid type, needed assistance with self-administration of medication, and needed daily oversight as to whereabouts and well-being, but was independent as to activities of daily life. Resident 14 (unsigned but dated October 23, 2017) - she was unsteady, used a walker, and had a tremor, needed supervision with bathing, meals, handling personal and financial affairs, assistance with self-administration of medication, and daily oversight as to her well-being, whereabouts, and reminders for important tasks. Resident 16 (unsigned, undated) - she needed supervision with bathing, transferring, preparing meals, shopping, handling personal affairs, and ambulating because she is unsteady, and needed daily oversight as to her well- being, whereabouts, and reminders for important tasks. Blue Angel’s files contained medical logs and forms for Residents 13, 14, 15, and 16, which is not typical for independent residents. The files contained the following: Resident 13 – monthly logs tracking her medications and the time of day taken from November 2017 through January 2018; monthly logs tracking her weight from November 2013 through April 2015; monthly progress notes from March through May 2015 indicating that Blue Angel checked her vitals, though noting she was very independent; certificate of Medicaid necessity signed by her medical provider, indicating that she needed assistance with self-administration of medication and health support, such as observing her whereabouts and well-being, reminders of important tasks, and recording and reporting significant changes in appearance and behavior; community living support plan, naming Blue Angel as the ALF and noting she needed assistance with medication management. Resident 14 – monthly logs tracking her weight from December 2015 through July 2016. Resident 15 – undated and unsigned observation log indicating that Blue Angel checked her vitals, though noting she was independent. Resident 16 – log tracking her medications and the time of day taken for January 2018; copies of prescriptions noting Blue Angel as the facility or listing its address. The surveyors reviewed the AHCA background screening clearinghouse agency website to ensure all staff screenings were current. They discovered that Staff C’s level II background screening had expired just a few days before the survey. The surveyors walked around with Ms. Aussendorf to identify the issues they found. While in the back structure, they showed Ms. Aussendorf the unlocked medication cabinet and she acknowledged they were expired. They observed her removing medicine from the packaging and giving it to Resident 15 because she could not read the labels. Ms. Aussendorf admitted to assisting Resident 15 with her medication, but maintained that the residents in the back structure were independent. Although Staff D and Ms. Aussendorf gave conflicting testimony as to the services provided, the undersigned finds the testimony of Mr. Jean-Gilles and Mr. Brodsky to be credible, particularly viewed in the context of the documents in Blue Angel’s files, the statements made by staff and residents, and the observations made by the surveyors during the survey. Before leaving that evening, the surveyors informed Ms. Aussendorf of the following deficiencies: overcapacity based on Resident 1 in the main building and the four residents in the back structure, the background screening issue, and the medication storage issue in the back structure. They did not inform her, show her their notes, or discuss an allegation of unlicensed activity. Thus, at that point, Blue Angel had no notice of that allegation. The week following the survey, Ms. Aussendorf called Ms. Manville, AHCA’s supervisor for the local field office. According to Ms. Aussendorf, Ms. Manville said the residents could not live in the back structure and that, though an exact deadline could not be given, she should be fine if she moved them before the revisit survey. Based on that call, Ms. Aussendorf began to find other places for the four residents. Although there is conflicting evidence as to the date on which the last resident moved out, there is no dispute that Residents 13, 14, and 16 moved to other ALFs and Resident 15 moved in with her daughter. On January 22, 2018, AHCA issued its Notice of Unlicensed Activity. Based on the weight of the credible evidence, this was the first date that AHCA notified Blue Angel that the activities in the back structure constituted unlicensed activity, as opposed to mere overcapacity. In a letter dated January 25, 2018, AHCA reported its findings and enclosed a summary statement of deficiencies citing the following four deficiencies: Tag 0055 - medication storage and disposal, rule 58A-5.0185(6) (Class III); Tag Z815 – background screening, sections 408.809, 435.02(2), and 435.06 (unclassified); Tag Z827 – unlicensed activity (Residents 13, 14, 15, and 16 living in the back structure), section 408.812; and Tag Z828 – administrative fines and violations (overcapacity as to Resident 1 living in main building), section 408.813(3). The letter required all deficiencies to be corrected within 30 days of the date of the letter and mandated that a corrective action plan be submitted by February 4, 2018. Blue Angel timely submitted its corrective action plan and indicated that all deficiencies were corrected as follows: Unlicensed Activity - All residents had been moved out of the back structure. Background Screening – Staff C had been scheduled for a background screening appointment as of the date of the survey and, on January 10, 2018, completed the rescreening and was in compliance. Overcapacity – Resident 1 was an adult daycare patient and his family had informed AHCA about their misunderstanding. Medications – All employees received additional training, medication was now locked in secure cabinets, and all expired medication was sent to the pharmacy and destroyed. AHCA’s surveyors, Mr. Jean-Gilles, Ms. Evans, and Ms. Hardie, returned to Blue Angel to conduct a revisit survey on February 26, 2018. Ms. Aussendorf was out of the country, but the staff granted access to the surveyors. The surveyors spoke to staff, inquired about the number of residents currently living in the facility, and inspected the back structure. As to the main building, the surveyors observed an unlocked medication cabinet that included medication for six residents present in the main building and two residents, including Resident 1, who were not present. As to the back structure, Staff C confirmed she lived there, but no belongings of the four residents remained. The surveyors spoke to staff, reviewed records, and called or visited the residents, their family members, and the new ALFs to confirm when the residents moved out of the back structure. The parties dispute when the last resident moved out of the back structure. Blue Angel maintains that it was January 23, 2018, whereas AHCA maintains that it was February 13, 2018. The evidence on this issue——testimony from AHCA’s witnesses and its own exhibits——is conflicting.4/ However, the undersigned finds that the weight of the credible evidence, including in particular the testimony of Ms. Evans, established that Resident 16 moved out on January 16, 2018, Residents 13 and 14 moved out on January 18, 2018, and Resident 15 moved out on January 23, 2018. The revisit survey also revealed that Residents 13, 14, and 16 received long-term care services, including some type of supervision and assistance, and were eligible to receive Medicaid managed care services. Long-term care services are not offered to residents in independent facilities because such services indicate a need for supervision or assistance with daily activities of life. Ms. Aussendorf helped some of the residents with their applications for long-term care plans. As required by the long-term care plans, Residents 13, 14, and 16 had assigned case managers who conducted in-person visits. Ms. Lawrence, Resident 13’s case manager, confirmed that she is unable to take care of her own needs, including food preparation, medication, and transportation. Ms. Lawrence visited Resident 13 on Wednesdays to ensure that her bills were paid and her medications were stocked and taken correctly, and to assist with anything else she needed. The revisit survey lastly revealed that Blue Angel failed to maintain its background screening clearinghouse employee roster. The surveyors reviewed the employee records and found that five employees had been omitted from the roster. Based on the complaint and revisit surveys, AHCA pursued disciplinary action against Blue Angel. On May 2, 2018, AHCA filed an administrative complaint seeking to impose administrative fines and to revoke Blue Angel’s license. On May 8, 2019, AHCA served an amended administrative complaint seeking the same relief based on the following six counts: (I) administrative fine of $35,000 ($1,000 per day) for unlicensed activity in the back structure from January 9, 2018, through February 13, 2018, pursuant to section 408.812; license revocation for the unlicensed activity in the back structure, pursuant to sections 429.14(1)(j) and 408.815(1)(c); administrative fine of $500 for failing to maintain an updated background screening clearinghouse employee roster, pursuant to sections 429.19(2)(c) and 408.815(1)(c); administrative fine of $500 for failing to secure medication in a locked storage room or cabinet, pursuant to section 429.19(2)(c); (V) administrative fine of $500 for failing to conduct a level II background screening for an employee, pursuant to sections 429.19(2)(c) and 408.813(3)(b); and (VI) administrative fine of $500 for overcapacity, pursuant to section 408.813(3).5/ Blue Angel admitted the allegations of Counts III, V, and VI and conceded to the $500 fines imposed in each. FINDINGS OF ULTIMATE FACT It is well settled under Florida law that determining whether alleged misconduct violates a statute or rule is a question of ultimate fact to be decided by the trier-of-fact based on the weight of the evidence. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Thus, determining whether the alleged misconduct violates the law is a factual, not legal, inquiry. AHCA has the burden to prove its allegations against Blue Angel by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996); Avalon’s Assisted Living, LLC v. Ag. for Health Care Admin., 80 So. 3d 347, 348-49 (Fla. 1st DCA 2011) (citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)). As the Florida Supreme Court has stated: Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). Based on the findings of fact above, AHCA established by clear and convincing evidence that Blue Angel engaged in unlicensed activity in the back structure. §§ 408.812(2) & 429.04, Fla. Stat. The weight of the credible evidence proved that Blue Angel provided housing, meals, and multiple personal services for more than 24 hours in the back structure to Residents 13, 14, 15, and 16, none of whom were relatives of Blue Angel’s owners. § 429.02(5), Fla. Stat. Specifically, it supervised and/or assisted residents with bathing (Residents 14, 15, and 16), ambulating (Residents 14 and 15), dressing (Residents 14 and 16), washing clothes (all four residents), and self-administration of medication, including storing, bringing it to the resident, verbally reading the label, and maintaining records tracking same (all four residents). See Avalon’s Assisted Living, 80 So. 3d at 348-49 (holding that “personal services” as defined in section 429.02, includes “washing clothes and feeding, bathing, grooming, and administering medications to its residents”). Based on the findings of fact above and the weight of the credible evidence, AHCA failed to establish by clear and convincing evidence that it put Blue Angel on notice of the unlicensed activity allegation on January 9, 2018, the date of the complaint survey, nor that Blue Angel did not cease such operations until February 13, 2018. Instead, the undersigned finds that the weight of the credible evidence established that AHCA put Blue Angel on notice of the unlicensed activity violation on January 22, 2018, when it issued its notice of unlicensed activity, and that Blue Angel ceased such activity by January 23, 2018, the date the last resident moved out. Based on the findings of fact above and the weight of the credible evidence, AHCA established by clear and convincing evidence that Blue Angel knowingly and unlawfully operated the back structure as an ALF without a license in violation of sections 429.14(1)(j), 408.812(2), and 408.815(1)(c). Blue Angel used its licensed structure to serve the residents meals, bathe some of them, and maintain their files. The Form 1823s listed Blue Angel as the receiving ALF and Ms. Aussendorf as the contact, and detailed the personal services these four residents needed. Ms. Aussendorf, Blue Angel’s CFO and a controlling interest, owned the property, acted on Blue Angel’s behalf in handling issues with AHCA, and had clear knowledge of the types of services ALFs provide. The leases with the residents listed Blue Angel as the landlord and were signed by Ms. Aussendorf. And, the leases detailed broad personal services provided by Blue Angel and imposed movement restrictions, which would not apply in an independent facility. Based on the findings of fact above and the weight of the credible evidence, AHCA established by clear and convincing evidence that Blue Angel violated rule 58A-5.0185(6) by failing to keep the centrally-stored medication cabinet in the back structure locked and properly dispose of the expired medications found therein. However, AHCA did not establish by clear and convincing evidence that Blue Angel failed to timely correct that Class III deficiency (e.g., keeping medication in an unlocked cabinet in the unlicensed back structure). The evidence was undisputed that Blue Angel had properly removed all of the medication from the cabinet in the back structure and, thus, a fine cannot be imposed. § 408.813(2)(c), Fla. Stat.
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 license (#12211) of Blue Angel Enterprises, Inc., d/b/a Blue Angel Residences, and imposing an administrative fine totaling $2,500. DONE AND ENTERED this 5th day of July, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 5th day of July, 2019.
