08-005174 Agency For Health Care Administration vs. Wildspring Adult Care Center, Inc., D/B/A Wildspring Status: Closed Recommended Order on Friday, January 23, 2009.

Summary: Assisted living facility that failed to document resident elopement drills for the year is guilty of a Class III deficiency and should pay $500.00 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 08-5174

)

WILDSPRING ADULT CARE CENTER, INC., d/b/a WILDSPRING, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on December 18, 2008, in Sebring, Florida.

APPEARANCES

For Petitioner: James H. Harris, Esquire

Agency for Health Care Administration

Sebring Building, No. 330H

525 Mirror Lake Drive North

St. Petersburg, Florida 33701

For Respondent: Dorothya Pringle, pro se

Wildspring Adult Care Center, Inc.

d/b/a Wildspring

2619 Lake Josephine Drive

Sebring, Florida 33875

STATEMENT OF THE ISSUES

The issues are whether Respondent failed to document

resident elopement drills for facility staff in violation of

Subsection 429.41(1)(a)3., Florida Statutes (2008), 1 and, if so,

whether Petitioner should impose a civil penalty of $500.00.

PRELIMINARY STATEMENT

On April 8, 2008, Petitioner issued a one-count Amended

Administrative Complaint against Respondent. Respondent timely

requested an informal hearing. The hearing officer for the

agency found that there were material issues of fact and issued

an Order Relinquishing Jurisdiction to DOAH. Petitioner moved

to amend the Amended Administrative Complaint, the motion was

granted, and Petitioner filed its Second Amended Administrative

Complaint, still containing only one count with no change in the

factual allegations.

At the final hearing, Petitioner presented the testimony of

two witnesses, submitted three exhibits for admission into

evidence, and later withdrew one of its three exhibits.

Respondent presented the testimony of one witness and submitted

two exhibits.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the one-volume Transcript of the

hearing filed with DOAH on January 6, 2009. Petitioner timely

filed its Proposed Recommended Order (PRO) on January 9, 2009.

Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

licensing and regulating assisted living facilities (ALFs) in

Florida. Respondent is a licensed ALF in Florida identified in

the record as Wildspring Adult Care Center, Inc., doing business

as Wildspring.

2. A surveyor for Petitioner conducted a survey of

Wildspring on October 5, 2007. The caregiver at Wildspring at

the time of the survey was a person identified in the record as

J. Westergaard.

3. The caregiver, in relevant part, was unable to locate

any record of facility staff drills concerning resident

elopement. The caregiver contacted the administrator of

Wildspring. The administrator came to the facility, but was not

able to locate and was unable to produce any record of facility

staff drills during 2007.

4. The surveyor cited Wildspring for a Class III

deficiency, explained the deficiency to the administrator, and

scheduled a mandatory correction date of November 5, 2007.

Petitioner did not conduct a follow-up survey until December 28,

2007. The Wildspring caregiver at the time of the second survey

was Simon Brown.

5. The caregiver at the time of the follow-up survey was

unable to locate the Wildspring record of facility staff drills

on resident elopement conducted during the year. The caregiver

admitted to the surveyor that Wildspring had not conducted any

resident elopement drill during the year.

6. At the conclusion of the second survey, the surveyor

cited Wildspring for a Class III deficiency and scheduled a

mandatory correction date. At the time, Wildspring had eight

residents at the facility.

CONCLUSIONS OF LAW

7. DOAH has jurisdiction of the subject matter and the

429.07, and 429.14. DOAH provided the parties with adequate

notice of the final hearing.

8. Petitioner has the burden of proof in this proceeding.

Petitioner must show by clear and convincing evidence that

Respondent committed the acts alleged in the Second Amended

Administrative Complaint and that the proposed penalty is

reasonable. Department of Banking and Finance v. Osborne Stern

& Co. , 670 So. 2d 932 (Fla. 1996).

9. Petitioner showed by clear and convincing evidence that

Respondent committed a Class III deficiency by failing to

document elopement drills for facility staff. The proposed

penalty of a $500.00 administrative fine is reasonable.

Subsection 429.19(1)(c) requires Petitioner to impose a fine of

not less than $500.00 for a Class III deficiency.

10. Subsection 429.41(1) authorizes Petitioner to

promulgate rules for the enforcement of legislative standards,

which, in Subsection 429.41(1)(a)3., require Respondent to

document resident elopement drills. The statutory standards

are promulgated in Florida Administrative Code Rules 58A-

5.0182(8)(c) and 58A-5.024.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter a final order finding

that Respondent committed one State Class III violation and

imposing an administrative fine of $500.00.

DONE AND ENTERED this 23rd day of January, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of January, 2009.

ENDNOTE

1/ References to subsections, sections, and chapters are to

Florida Statutes (2008), unless otherwise stated.

COPIES FURNISHED :

James H. Harris, Esquire

Agency for Health Care Administration

Sebring Building, No. 330H

525 Mirror Lake Drive North

St. Petersburg, Florida 33701

Dorothya Pringle

Wildspring Adult Care Center, Inc.

d/b/a Wildspring

2619 Lake Josephine Drive

Sebring, Florida 33875

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Justin Senior, Acting General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Holly Benson, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.