15-002042 A Place Called Home vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, December 9, 2015.

Summary: AHCA failed to prove, by a preponderance of the evidence, that ALF committed three Class II deficiencies and one uncorrected Class III deficiency. Recommended approval of licensure renewal application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

A PLACE CALLED HOME,

Petitioner,

vs. Case No. 15 - 2042

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge

Darren A. Schwartz of the Division of Administrative Hearings for

final hearing by video teleconference on August 26 and 28, 2015,

at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Nathaniel E. Green, Esquir e

Law Offices of Nathaniel E. Green, P.A.

Post Office Box 100663

Fort Lauderdale, Florida 33310

For Respondent: Nelson E. Rodney, Esquire

Agency for Health Care Administration

Suite 300

8333 Northwest 53rd Street

Miami, Florida 33166

STATEMENT OF THE ISSUE

Whether Petitioner , A Place Called Home (Ð APCH Ñ ) , committed

three Class II deficiencies and an uncorrected Class III

deficiency at the time of the survey conducted on January 20

through 27, 2015, so as to justify Respondent, Agency for Health

Care Administration (ÐAHCAÑ) , denying the licensure renewal

application of APCH to continue to operate a n eight - bed assisted

living facility (ÐALFÑ) located in Miami, Florida .

PRELIMINARY STATEMENT

By letter titled Ð Notice of Intent to Deny Renewal

Application for A Place Called Home, Ñ dated March 10, 2015 , AHCA

notified APCH of the denial of its renewal lic ense application.

APCH timely filed a Petition f or Formal Hearing. Subsequently,

on April 14, 2015 , AHCA referred the matter to the Division of

Administrative Hearings (ÐDOAHÑ) to assign an Administrative Law

Judge to conduct the final hearing. On April 17 , 2015, the

undersigned set the final hearing for June 24, 2015 . On June 16,

2015, the undersigned entered an Order granting APCHÓs unopposed

motion for continuance, and reset the final hearing for

August 26, 2015.

The final hearing commenced as sch eduled on August 26, 2015 ,

and concluded on August 28, 2015 , with both parties present . At

the hearing, AHCA presented the testimony of Judith Calixte -

Joasil, Kristal Branton, and Arlene Mayo - Davis. AHCAÓs Exhibits

1 through 73, 97 through 99, 101 throug h 104, and 107 through 115

were received into evidence . APCH presented the testimony of

Tory Mays and Linda Mays. APCHÓs Exhibits 1 through 8 were

received into evidence.

The three - volume Transcript of the hearing was filed at DOAH

on October 15, 2015 . The partiesÓ p roposed r ecommended o rders

were due on November 4, 2015. AHCA t imely submitted RespondentÓs

P roposed Recommended O rder on November 4, 2015, which w as given

consideration in the preparation of this Recommended Order. APCH

untimely submitted PetitionerÓs Proposed R ecommended O r d er on

December 8, 2015, which was not given consideration in this

Recommended Order . On December 8, 2015, AHCA filed a Motion to

Strike Petitioner Ós Proposed Recommended Order because it was

untimely. On December 8, 2015, the undersigne d entered an Order

striking Petitioner Ós Proposed Recommended Order.

On August 18, 2015, the parties filed their Joint Pretrial

Stipulation, in which they stipulated to certain facts. These

facts have been incorporated into this Recomm ended Order as

indicated below .

Unless otherwise stated, all statutory and rule references

are to the statues and rules in effect at the time of the alleged

violations.

FINDING S OF FACT

The Parties

1. Since 2013, APCH has been licensed by AHCA t o operate an

eight - bed ALF located in a duplex at 80 - 82 N ortheast 68th

Terrace, Miami, Florida.

2. APCH is licensed to provide limit ing nursing and mental

health services. Tory Mays has been the Administrator of APCH

since its inception in 2013 . His wife, Linda Mays, is a Florida

licensed advanced registered nurse practitioner , and the

contracting nursing care consultant for APCH .

3 . AHCA is the state agency responsible for licensing and

monitoring assi sted living facilities in this s tate.

Th e October 21, 2014, Survey

4 . On October 21, 2014, AHCA conducted a standard biennial

survey at APCH . The October 21, 2014, survey was conducted by

Judith Calixte - Joasil, who has conducted thousands of surveys

during the past nine years she has been empl oyed by AHCA.

Ms. Calixte - Joasil , who is employed by AHCA as a health facility

evaluator no. 2, has no nursing background , and she is not a

physic i an . During this survey, Ms. Calixte - Jo a sil found and

cited APCH w ith s even Class III deficiencies . Ms. Ca lixte - Joasil

issued seven separate ÐtagsÑ to explain the deficiencies. The

following is a summary of the seven Class III deficiencies found

by Ms. Calixte - Joasil during the October 21, 2014, survey :

Tag A026 Î - Resident Care - Î S ocial & Leisure Activities:

Failure to provide scheduled activities posted in the common area

and failure to encourage the residents to participate in social,

recreational, educational , and other activities within the

facility and community.

Tag A 078 Î - Staffing Standards: Failure to ensure that a

staff member had documentation verifying proof of an annual

tuberculosis test result .

Tag A079 Î - Staffing Standards : A staff schedule showed an

individual listed on the work schedule for the month of October

2014, but that individual no lo nger worked at the facility.

Tag A081 Î - Staff In - Service Training: Failure to have proper

training hours that are not over the time limits in one day of

training ( two out of four sampled staff ) .

Tag A152 Î - Physical Plant Î - Safe Living Environment/Other:

B roken and rotten wood around an air conditioner unit in an

outside window are a of one of the rooms. Also, peeling paint in

front of the air conditioner was observed in this room . P eeling

paint was also observed on the ceiling in both common areas.

Final ly, in another room, there were missing d resser knobs and a

broken door with peeling paint.

Tag A160 Î - Records: Failure to have resident elopement

response policies and procedures.

Tag AL243 Î - Training: Failure to have documentation ensuring

that a staff member completed the minimum six hours of continuing

education.

The Incident Involving R esident M.R.

5 . M.R. is a current resident at APCH . M.R. became a

resident of APCH on December 29, 2014 , after transfer ring from

another ALF called Ashley Gardens . Upon transfer ring to APCH,

Ms. Mays examined M.R. and completed AHCAÓs Form 1823 , titled

Resident Health Assessment for Assisted Living Facilities . 1/

6 . At the time of her transfer to APCH on December 29,

2014 , M.R. was 80 y ears old, 4Ó9Ñ inches tall, and weighed 107

pounds. Her m edical history and diagnoses were positive for

hypertension, Alzheimer Ós d isease, and psychosis.

7 . A t that time, M.R. had an Ð unsteady gait .Ñ She needed

Ðhands onÑ assistance for bathing a nd assistance choosing

clothing , but she could independently ambulate, eat, care for

herself, and use the toilet. Her c ognitive or behavioral status

was Ðimpaired mental status.Ñ No nursing, treatment, psychiatric

or therapy services were required. N o s pecial precautions were

necessary , and she was not an elopement risk.

8 . From December 29, 2014 , until January 14, 2015, M.R.

resided at APCH without incident.

9. However, o n January 14, 2015, at 4:15 p.m., M.R. fell at

the entrance of APC H and suffered injury .

10. Mr. Mays learned of M.R. Ós fall s hortly after it

occurred , when he received a telephone call from Glasna Sterling ,

a caregiver at APCH . Mr . Mays then called his wife to let her

know of the fall. Mr . Mays also called Ben Johnson, M.R. Ós

guardian, to let him know of the fall .

1 1 . In the meantime, a caregiver at the facility applied

some ice to M.R. Ós face shortly after the fall. Ms. Mays arrived

at APCH on January 14, 2015 , and conducted a thorough Ð face - to -

fac e , Ñ Ðhead - to - toeÑ examination and nursing assessment of M.R.

at 7:30 p.m .

1 2 . M.R. Ós chief complaint at that time was that her

forehead hurt. Upon examination, Ms. Mays observed a two - inch

circumference closed hematoma above M.R. Ós right eye, which was

tender to the touch. 2/

1 3 . Ms. MaysÓ examination and nursing assessment of M.R. on

January 14, 2015, in cluded checking M.R. Ós mentation from her

baseline, which was forgetfulness . Ms. Mays examined M.R. Ós

cognitive abilities and was able to determine her level of

orientation and mental status .

1 4 . Ms. Mays observed that M.R. Ós eyes were open; she could

speak , move, and respond appropriately to voice commands.

Ms. Mays examined M.R. Ós pupils to see if they were reactive to

light and accommodating. Ms. Mays checked the movement of M.R. Ós

limbs. She checked her lung and bowel sounds. Ms. Mays

performed a Glasgow Scale test, which is a test designed to

determine a patientÓs neurological status and any type of

neurological change . Ms. Mays found no deficits on the Glasgow

Scale.

1 5 . Following her January 14, 2015, examination of M.R. ,

Ms. Mays Ó assessment was hematoma secondary to head trauma .

M.R. also had a bruised knee. Ms. Mays determined that M.R. Ós

injuries resulting from the fall required first - aid type

treatment , only , which c ould be provided by a person who is

trained to perform first - aid .

1 6 . At that time, Ms. MaysÓ recommended plan of treatment

called for ice to be applied to M.R. Ós f orehead for 15 minutes

every two hours for eight hours ; the c heck ing of vital signs and

alertness for the next eight hours ; and required the caregiver ,

Mr . Sterling, to call M.R. Ós primary doctor (Dr. Moses Alade) if

M.R. bec ame confused, dizzy, or there was a change in her lev el

of consciousness.

17. No ambulance o r physician was called regarding M.R. on

January 14, 2015.

1 8 . Ms. Mays documented her findings and treatment plan in

ÐSOAPÑ notes dated 7:30 p.m., on January 14, 2015. SOAP notes

are a problem - solving focused style of note writing , and provide

guidance as to how a nurse might document her assessment of a

patient for an issue that is being addressed . The term SOAP is

an acronym for the following: S=subject, O=objective,

A=assessment, and P=plan. The SOAP notes were maintained in

M.R. Ós resident file to document her health condition.

1 9 . Ms. Mays and Mr . Sterling w ere trained and qualified to

perform the duties set forth in the ÐSOAPÑ notes. Ms. Mays and

Mr . Sterling w ere trained and qualified to provide first - aid to

residents. Notably, Mr . Sterling was trained and qualified on

how to observe and report any changes in M.R. Ós condition to

Dr. Alade . Ms. Mays explained to Mr . Sterling that he should

contact Dr. Alade if M.R. became dizzy; if s he was not waking up;

if she was sluggish; if there was any change in her normal

alertness; if she was not eating; if she appeared more confused

than usual; or if she was combative .

20 . Ms. Mays continued to monitor M.R. Ós condition over the

next t wo days to ensure that her initial findings were accurate .

Ms. Mays also followed - up with Mr . Sterling over the next two

days to ensure that he follow ed her orders.

2 1 . There was no change in M.R. Ós level of consciousness

during the overnight peri od of January 14 through 15, 2015 .

2 2 . On January 15, 2015, at 5:30 p.m., Ms. Mays returned to

APCH and conducted another examination of M.R. At this time,

M.R. appeared guarded. Nevertheless, Ms. Mays observed that the

hematoma was healing, and had reduced in size from two inches to

one inch in circumference. The area was non - tender. There had

been no change in M.R. Ós level of consciousness. M.R. Ós vital

signs reflected a blood pressure reading of 122/78 and a heart

rate of 82, which are with in normal limits. 3 /

2 3 . Notably, by this time, fluid that had collected in the

hematoma had begun to collect in the facial tissues , resulting in

M.R. Ós facial area appear ing purple/blue in color . At hearing,

Ms. Mays explained that f or a geriatri c patient such as M.R. with

non - elastic skin, it is reasonable that the fluid collected in

the hematoma would dissipate downward with gravity in other areas

of the body, such as to the face .

2 4 . Based on her examination of M.R. on January 15, 2015,

Ms. MaysÓ assessment remained hematoma secondary to head trauma .

Again, Ms. Mays determined that nothing more than first - aid type

treatment was required.

2 5 . Following her examination of M.R. on January 15, 2015,

Ms. Mays Ó recommended treatment c alled for Tylenol (325mg ii

tabs) 4 / and ice to be applied to the forehead , if needed; the

checking of alertness; and required the caregiver, Mr. Sterling,

to call M.R. Ós primary doctor (Dr. Alade) if M.R. bec ame

confused, dizzy, or there was a change in he r level of

consciousness. Ms. Mays again documented her findings and

treatment plan in ÐSOAPÑ notes dated 5 :30 p.m., on January 1 5 ,

2015.

2 6 . On January 16, 2015, at 5:35 p.m., Ms. Mays returned to

APCH and conducted another examination of M.R. At this

examination , M.R. was less guarded. Ms. Mays observed that the

hematoma was continuing to heal and had reduced in size from o ne

inch to .75 inch in circumference. The area was non - tender.

There had been no change in M.R. Ós level of consci ousness.

M.R. Ós vital signs reflected a blood pressure reading of 1 17 /7 4

and a heart rate of 76 , which are within normal limits .

2 7 . However, by this time, Ms. Mays observed a purple/blue

discoloration on both sides of M.R. Ós face and a dark green a nd

yellow color on the bridge of her nose. This observation was

consistent with blood c ollecting in the tissues of her face as

previously determined by Ms. Mays .

2 8 . Based on her examination of M.R. on January 1 6 , 2015,

Ms. MaysÓ assessment remai ned hematoma secondary to head trauma.

Again, Ms. Mays determined that nothing more than first - aid type

treatment was required of M.R.

2 9 . Following her examination of M.R. on January 16, 2015,

Ms. MaysÓ treatment plan called for Tylenol (325mg ii tabs), if

needed; the checking of alertness; and required the caregiver,

Mr . Sterling, to call M.R. Ós primary doctor (Dr. Alade) if M.R.

bec ame confused, dizzy, or there was a change in level of

consciousness. Ms. Mays again documented her findings and

tr eatment plan in ÐSOAPÑ notes dated 5:3 3 p.m., on January 1 6 ,

2015.

30 . Following her examination of M.R. on January 16, 2015,

Ms. Mays had no further face - to - face contact with M.R. between

January 16, 2015 , and January 21, 2015 .

The January 20 through 27, 2015, S urvey and Its A ftermath

3 1 . From January 20 through 27, 2015, a standard biennial

revisit survey was conducted at APCH by Ms. Calixte - Joasil.

3 2 . U pon arriving at APCH at 9:15 a.m. , on January 20,

2015, to conduct the revisit survey, Ms. Calixte - Joasil observed

M.R. sitting on the couch. Ms. Calixte - Joasil observed M.R. Ós

face with the different discolorations and bruises . Ms. Calixte -

Joasil became concerned based on M.R. Ós appearance. Ms. Calixte -

Joasil proceede d to take thre e photographs of M.R. Ós face .

3 3 . Based on Ðthe way she looked,Ñ Ms. Calixte - Joasil

believed that M.R. needed to see a doctor Ðjust to be on the safe

side to make sure she didnÓt suffer any other injuries . Ñ

3 4 . M.R. had alrea dy been scheduled to see Dr. Alade on

January 20, 2015 , for a Ðnormal appointment , Ñ unrelated to her

January 14, 2015, fall . Ms. Calixte - Joasil saw M.R. leave APCH

on January 20, 2015, accompanied by another caregiver of APCH

(ÐMs. EstherÑ) who provides t ransportation . Ms. Calixte - Joasil

observed M.R. and Ms. Esther linking arms , with Ms. Esther

assisting M.R. walking out of the facility. At that time,

Ms. Esther had M.R. Ó s resident file with her.

3 5 . Ms. Calixte - Joasil assumed Ms. Esther was ta king M.R.

to see Dr. Alade. Both Ms. Calixte - Joasil and Mr. Mays believed

that on January 20, 2015, Ms. Esther took M.R. to Dr. AladeÓs

office on January 20, 2015, for her regularly scheduled

appointment.

3 6 . Unbekno w nst to Ms. Calixte - Joasil or Mr. Mays on

January 20, 2015, however, Ms. Esther did not take M.R. to see

Dr. Alade on January 20, 2015 , as she was supposed to do .

3 7 . The next day, January 21, 2015, Ms. Calixte - Joasil

called Dr. Alade Ós office directly and found ou t that he did not

see M.R. on January 20, 2015 . When Mr . Mays found out that

Ms. Esther had not taken M.R. to see Dr. Alade on January 20,

2015, Ms. Ester was suspended by APCH for two weeks and

subsequently terminated.

38 . On January 21, 2015, Ms. Mays cont acted Dr. Alade for

the first time regarding M.R. Ós fall on January 14, 2015.

Ms. Mays contacted Dr. Alade on January 21, 2015 , because by this

time, AHCA was questioning the care that had been provided to

M.R. by APCH .

39 . When Ms. Mays spoke to D r. Alade on January 21, 2015,

she explained her examinations, assessments, and treatment of

M.R. from January 14 through 16, 2015 . No persuasive evidence

was adduced at hearing that Dr. Alade recommended that M.R. be

taken to the hospital or that he nee ded to see her for an

immediate evaluation.

4 0 . Upon her return to APCH on January 21, 2015,

Ms. Calixte - Joasil continued her survey and investigation a s to

what transpired with M.R.

4 1 . Ms. Calixte - Joasil examined Ms. MaysÓ ÐSOAP notes.Ñ

M s. Calixte - Joasil Ós testimony that she was unable to determine

from her review of Ms. MaysÓ n otes whether M.R. had made any

improvement between January 14 and 16, 2015 , is unpersuasive , and

not credited . Notably, a t hearing, Arlene Mayo - Davis , AHCAÓs

nurs ing expert, acknowledged that during that time, the SOAP

notes reflect that the hematoma was getting better and healing.

4 2 . Ms. Calixte - Joasil made no effort to communicate with

Ms. Mays on January 20 or 21, 2015.

4 3 . However, Ms. Calixt e - Joasil contacted the Department of

Children and Families (ÐDCFÑ) because of how M.R. looked and

after finding out that M.R. did not go to the doctor as scheduled

on January 20, 2015 . Ms. Calixte - Joasil suspected that M.R. was

the victim of abuse Ðfrom t he way she looked, the fall.Ñ

Ms. Calixte - Joasil expected DCF Ðto come out and investigate

based on my findings and what I had said.Ñ

4 4 . DCF arrived at APCH on January 23, 2015, along with law

enforcement . DCF arranged for M.R. to be taken by am bulance to

the North Shore Medical Center emergency room .

4 5 . Upon learning that M.R. had been taken to the emergency

room, Ms. Mays called Dr. Alade. After talking to Dr. Alade ,

M s. Mays met M.R. at the emergency room and provide d the

emergency ro om physician with a report as to what happened.

4 6 . Ms. Mays proceeded to the emergency room and provided

the emergency room physician with a report as to what happened.

4 7 . M.R. was admitted to t he hospital on January 23, 2015.

48 . Dr. Alade agreed on January 23, 2015, that M.R. sho uld

be admitted to the hospital , and he traced M.R. Ós pre - admission

work - up . 5/

49 . T he emergency physician who examined M.R. at the

hospital r eviewed Ms. MaysÓ notes, and Ms. Mays t esti fied that

the emergency room physican agreed with her assessment and

treatment of M.R.

50 . On January 29, 2015, M.R. was discharged from the

hospital with a diagnos is of contusion and urinary tract

infection . The discharge diagnos is of contusion confirms that

M .R. did not suffer any fractures or a brain injury as a result

of the January 14, 2015, fall , and is compatible with the need

for first - aid type treatment, only , which was adequately provided

by APCH . There is nothing more that APCH could have done that

w ould have changed the course of M.R. Ós recovery fr om her

injuries resulting from the fall.

51 . Following her discharge, M.R. was returned to APCH on

January 29, 2015 .

5 2 . On February 3, 2015, Dr. Alade examined M.R. and

completed AHCAÓs F orm 1823.

5 3 . Following his examination of M.R. on February 3, 2015 ,

D r. Alade indicated that M.R. Ós facial contusion had resolved.

At no time has Dr. Alade expressed any concern about the manner

in which M.R. was medically treated at AP CH. Dr. Al ade

recommended that M.R. return to APCH where she has resided ever

since. M.R. Ós guardian approved of M.R. Ós return to APCH.

AHCAÓs A lleged D eficiencies as a R esult of the January 20

through 27, 2015, S urvey

54. AHCAÓs proposed agency actio n to deny APCHÓs renewal

license is based on three purported Class II deficiencies and one

purported uncorrected Class III deficiency . Each of these

alleged deficiencies relate to M.R. Ós fall on January 14, 2015 ,

and the subsequent January 20 through 27, 2015, survey . The

undersigned turns now to specifically address each of the se

alleged deficienc i es upon which AHCAÓs proposed agency action is

based .

Tag A030: Class II D eficiency

55. As a result of the January 20 through 27, 2015, s urvey,

AHCA charged APCH with the following Class II deficiency:

Tag A030 58A - 5.0182(6) FAC; 429.28 FS

Resident Care - Î Rights & Facility Procedures :

* * *

[ T ] he facility failed to provide access to

adequate and appropriate health care

consiste nt with established and recognized

standards within the community for one out of

eight [ M.R. ] residents.

56. In support of its position, AHCA presented the expert

testimony of Ms. Mayo - Davis. Ms. Mayo - Davis is a licensed

registered nurse. She has been licensed since 1988. At hearing,

AHCAÓs counsel offered Ms. Mayo - Davis as an expert in the area of

general nursing. Without objection, she was accepted by the

undersigned as an expert in general nursing.

57. By way of background, Ms. May o - Davis worked as a

registered nurse at two hospitals for a total of seven years,

focusing on medical, surgical, oncology, and hematology. Since

1995, she has been employed by AHCA. She began her ACHA

employment as a registered nurse specialist. She lat er became a

registered nurse supervisor and registered nurse consultant.

5 8 . Ms. Mayo - Davis is currently employed by AHCA as a field

office manager. As a field office manager, Ms. Mayo - Davis

manages 110 employees in the Delray and Miami, Florida , o ffices

of AHCA. As a field officer manager, Ms. Mayo - Davis reviews

deficiencies found at AHCA licensed facility surveys. She

reviews hundreds of surveys on an annual basis, but she has not

actually performed surveys while employed at AHCA.

5 9 . At h earing, Ms. Mayo - Davis opined that the factual

basis supporting this alleged deficiency is that the facility

Ðdid not seek additional health evaluation after the resident had

a fall.Ñ Ms. Mayo - Davis testified that based on her review of

the three photogr aphs taken on January 20, 2015, and other

documents , her nursing impression is that there was the potential

for a brain injury or fracture of the face and that M.R. needed

to be assessed by a doctor, not a nurse, and also taken to the

hospital to evaluate whether or not some additional diagnostic

testing needed to be done (i.e. , CAT scan or X - r ay).

Ms. Mayo - Davis opined that M.R. still needed to go to the

hospital even though by the third day Ðthings were resolving.Ñ

At hearing, Ms. Mayo - Davis conceded t hat there is no evidence

that M.R. suffered a brain injury or fracture to the face as a

result of the fall on January 14, 2015.

60. Importantly, at hearing, Ms. Mayo - Davis conceded that

she never saw or examined M.R. , and that she has never been t o

APCH.

6 1 . The undersigned rejects Ms. Mayo - DavisÓ opinions as

unpersuasive.

62 . The undersigned accepts and finds Ms. MaysÓ opinions

persuasive.

63 . By way of background, Ms. Mays received a bachelorÓs

degree in nursing from the University of Miami in 1999 and a

masterÓs degree in nursing for clinical research from Duke

University in 2001. She received a post - mastersÓ certificate as

a psychiatric nurse practitioner from th e University of Florida

in 2013 and a doctoral degree in nursing practice from the

University of Florida in August 2015.

64 . Ms. Mays has been licensed as a registered nurse in

Florida since 1997. She is also licensed as a registered nurse

in North Carolina and Kentucky. She is also licensed as an

adva nced registered nurse practitioner in Florida and Kentucky.

65 . Ms. Mays received training as an ALF administrator in

Florida , and she is certified by the State of Florida to train

ALF trainers.

66 . Ms. Mays began her work experience as a telemetry nurse

for two years at Kendall Regional Medical Center. After that,

she studied at Duke University where she became a clinical

instructor for nursing students at Vance - Granville Community

College, as well as the staff coordinator trainer at a nu rsing

home in North Carolina.

67 . After that, Ms. Mays moved to Kentucky for six months

where she was hired to be a director of a nursing home. She then

returned to South Florida , where she accepted the position of

director of nursing for a ventil ator unit at Miami Hart H ospital,

a position she held for three year s . A fter Ms. Mays received her

post - masterÓs certificate as a p sychiatric nurse practitioner,

she was then hired to work at West Palm Hospital as a psychiatric

nurse practitioner . She is currently employed as an assistant

professor at the University of Miami for clinical studies in the

School of Nursing , in addition to her duties as the nursing care

consultant at APCH .

68 . At hearing, without objection, Ms. Mays was accepted as

an e xpert in the areas of general nursing, nursing standards,

fall management, core training as it relates to ALFs, and nursing

as it relates to the admin istration and management of ALF s.

69. Ms. Mays persuasively opined that the acute course of

M.R. Ós m edical condit ion occurred between January 14 and 16,

2015. During this time period, there was no change in M.R. Ós

condition because of her injuries from the fall which

necessitated APCH contacting M.R. Ós primary care physician or

taking her to the hospita l. M.R. was able to carry out her same

a ctivities of daily living she had done before the fall.

70 . Ms. Mays persuasively opined at hearing that had there

been any indication of a brain injury as a result of the fall,

the symptoms would have mani fested during the Januar y 14

through 16, 2015, period. However, no symptoms of a brain injury

were presented , and there was no indication of a fracture.

7 1 . The persuasive evidence adduced at hearing establishes

that APCH provided the correct cou rse of treatment following

M.R. Ós fall, and there was no need for any further medical

treatment or assessment of M.R. as a result of her injuries from

the fall.

72. M.R. was not subject to abuse or neglect by APCH, and

AHCA failed to prove an inten tional or negligent act by APCH

seriously or materially affecting the health of M.R. Based on

the particular facts of this case, t he first - aid medical

treatment provided by APCH as a result of M.R. Ós injuries from

the fall was adequate, appropriate, and c onsistent with the

established and recognized standards within the community.

Mr . Sterling was trained and qualified to perform the first - aid

type treatment that he did and to contact Dr. Alade if there was

any change in M.R. Ós condition. Mr . SterlingÓs first - aid

treatment of M.R. was consistent with Ms. MaysÓ protocol. The

treatment protocol was sufficiently documented and followed .

73. The preponderance of the evidence presented at hearing

fail s to establish a violation of Tag A030.

Tag A077: Class II D eficiency

7 4 . As a result of the January 20 through 27, 2015, survey,

AHCA also charged APCH with the following Class II deficiency:

Tag A077: 58A - 5.019(1) FAC Staffing

Standards - - Administrators

* * *

[T]he facili ty failed to be under the

supervision of an administrator who is

responsible for the provision of appropriate

care for one out of eight [ M.R. ] residents.

75. The facility administrator, Mr . Mays, is responsible

for the provision of appropriate care for the residents. At

hearing, Ms. Calixte - Joasil testified that it is the

administratorÓs responsibility to ensure that the resident

receive appropriate care. She testified that the reason she

cited APCH for this deficiency is because Mr . Mays, Ðnever

e nsured that she saw a doctor,Ñ t here was no documentation that

she saw a doctor, and then when she contacted the doctorÓs

office, Dr. Alade had not seen her.

76. Again, this deficiency is based on M.R. Ós fall, and

AHCAÓs position that M.R. did not receive appropriate care as a

result of her injuries from the fall .

77. However, a s detailed above, the undersigned has found

that M.R. received adequate and appropriate care as a result of

her injuries from the fall.

78. The preponderanc e of the evidence presented at hearing

fails to establish a violation of T ag A077.

Tag A025: Class II D eficiency

7 9 . As a result of the January 20 through 27, 2015, survey,

AHCA also charged APCH with the following Class II deficiency:

Ta g A025: 58A - 5.0182(1) FAC Resident Care -

Supervision

* * *

[T]he facility failed to maintain a written

record of any significant change for one out

of eight residents [ M.R. ].

80 . At hearing, Ms. Calixte - Joasil testified that the

factual b asis for this alleged deficiency is that APCH did not

have any written record of any Ðsignificant changeÑ for M.R.

following the fall.

8 1 . The determination of whether a resident suffered from a

Ðsignificant changeÑ in behavior or mood cannot be mad e by a non -

medical professional. Nevertheless, Ms. Calixte - Joasil made the

determination that M.R. suffered from a Ðsignificant changeÑ in

her health status because of the ÐbumpÑ on her head and

Ðdiscoloration of the residentÓs eyes. Ñ The contusion cause d by

M.R. Ós fall , which later resolved, did not result in a

significant change in her health status. As detailed above, the

injuries M.R. sustained as a result of the fall were short - term,

requiring first - aid treatment, only. M.R. was able to continue

to carry out her same activities of daily living before and after

the fall. The credible and persuasive evidence adduced at

hearing establishes that M.R. did not suffer from a Ðsignificant

changeÑ in her health status as a result of her injuries from the

fa ll on January 14, 2015.

8 2 . The preponderance of the evidence presented at hearing

fails to establish a violation of Tag A025.

Tag A152: Uncorrected Class III D eficiency

8 3 . As a result of the January 20 through 27, 2015, survey,

AHCA al so charged APCH with the following Class III uncorrected

deficiency :

Tag A152: 58A - 5.023(3) FAC Physical Plant - Î

Safe Living Environ/Other

* * *

[T]he facility failed to maintain a safe

living environment free from hazards.

8 4 . This allege d deficiency is premised on

Ms. Calixte - Joasil Ós belief that M.R. Ós fall was caused by her

tripping over a metal threshold at the entrance of APCH . At

hearing, Ms. Calixte - Joasil testified that her belief is based on

a conversation she had with Mr. Sterl ing on January 27, 2015.

8 5 . However, a review of Ms. Calixte - Joasil Ós survey notes

reflect s that Mr . Sterling told her that his back was toward M.R.

when she fell, and he did not actually see when M.R. fell .

8 6 . At hearing, Ms. Calixte - Joas il further testified that

M s . Mays told her that M.R. fell as a result of the metal

threshold. However, Ms. Calixte - Joasil acknowledged that this

purported statement is not in her survey notes. At hearing,

Mr. Mays denied making the purported statement to Ms. Calixte -

Joasil.

8 7 . No persuasive and credible evidence was adduced at

hearing to demonstrate what caused M.R. to fall on January 14,

2015. Although APCH did not dispute in its Petition for Formal

Hearing that M.R. Ðfell at the entrance of t he facility,Ñ that

does not mean that she trippe d over the metal threshold at the

entrance of the facility.

8 8 . No witnesses who actually saw M.R. fall testified at

the hearing. M.R. could have tripped over her own two feet at

the entrance to the facility . Ms. Calixte - JoasilÓs testimony

that M.R. fell because she tripped o ver the metal threshold is

not credited. Mr. MaysÓ testimony is credited. In sum, the

persuasive evidence adduced at hearing fails to establish that

M.R. tripped o ver the metal threshold at the entrance door to

APCH on January 14, 2015, which caused her to fall and suffer

injuries . 6 /

89 . Moreover, the evidence presented at hearing fails to

establish that the metal threshold was a hazardous or potential

hazardous conditi on. At hearing, Ms. Calixte - Joasil testified

that when she observed the metal threshold during her

January 2015 inspection, Ð[i]t was elevated a little bit .Ñ Based

on her belief that M.R. fell on January 20, 2015, she cited this

deficiency as a repeat e nvironmental hazard.

9 0 . APCH was unaware that the metal threshold was a

potential hazard prior to the January 20 through 27, 2015,

survey. There is no history of anyone ever tripping over the

metal threshold prior to January 14, 2015.

9 1 . The metal threshold is not an uncorrected deficiency

from the October 21, 2014, survey. The metal threshold was in

the same condition on January 20, 2015, as it was at the time of

the October 21 , 2014, survey. The metal threshold was in the

same cond ition it had been in when APCH commenced operations in

2013.

9 2 . Ms. Calixte - Joasil had been to APCH on multiple

occasions prior to the October 21, 2014, survey , and used the

same entrance where the metal threshold is located. Notably,

Ms. Calix te - Joasil did not cite the metal threshold as an

environmental hazard at any time prior to the October 21, 2014,

survey, or when she conducted t he October 21, 2014, survey .

Ms. Calixte - Joasil made no mention to APCH of any issue with the

metal threshold prior to the January 20 through 27, 2015, survey ,

and APCH was never made aware by AHCA that the metal threshold

was a tripping hazard prior to the January 20 through 27, 2015,

survey . 7 /

9 3 . At hearing, Ms. Calixte - Joasil conceded that by the

tim e of the January 20 through 27, 2015, survey, all of the items

cited in the October 21, 2014, survey had been timely repaired.

9 4 . APCHÓs license was set to expire on February 26, 2015.

On February 23, 2015, AHCA conducted a standard biennial second

revisit survey at APCH, at which time no deficiencies were found.

At hearing, Ms. Calixte - Joasil conceded that all of the

January 20 through 27, 2015, citations were timely corrected

prior to the February 23, 2015, survey . Thus, there were no

deficienci es at the facility for weeks prior to the March 10,

2015, denial letter. 8 /

C ONCLUSIONS OF LAW

9 5 . The Division of Administrative Hearings has

jurisdiction over the subject matter and parties pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2 014).

9 6 . In the instant case, APCH has applied for the renewal

o f its license to operate an ALF and challenges AHCAÓs decision

to deny the renewal license application.

9 7 . A license to operate an ALF is a public trust and a

privilege , no t an entitlem ent. § 429.01(3) , Fla. Stat.

9 8 . Generally, the applicant for licensure has the burden

of proof to demonstrate, by a preponderance of the evidence, that

it satisfies the requirements for licensure and is entitled to

receive the license. DepÓt of Ba n king & Fin. v. Osborne Ste r n &

Co. , 670 So. 2d 932, 934 (Fla. 1996); M.H. v. DepÓt of Child. &

Fam. Servs. , 977 So. 2d 755 , 762 (Fla. 2 d DCA 2008).

99 . However, in the instant case, it is undisputed that

AHCA did not base its licensing decision on anyt hing having to do

with the renewal application itself. Rather, AHCA based its

licensing decision on specific instances of alleged wrongdoing on

the part of APCH resulting from alleged deficiencies found in

survey s . Accordingly, the burden in this particu lar proceed ing

belongs to AHCA to establish, by a preponderance of the evidence,

that APCH committed the alleged deficiencies u pon which it relies

for its decision to deny the renewal license. Osborne , 670 So.

2d at 934; M.H. , 981 So. 2d at 762. 9 /

100. A HCA Ós denial of APCHÓs renewal license is based on

the following provisions of the Florida statutes: s ection s

429.14(1)(a) , 429.14 (1) (e)2 . , 429.14(1)(k), 408.806(7)(a),

408.815(1)(b), and 408.815(1)(e).

101. Section 429.14(1)(a) authorizes AHCA to de ny a

license for an intentional or negligent act seriously affecting

the health, safety, or welfare of a resident of an ALF .

Section 429.14 (1) (e)2 . authorizes AHCA to deny a l icense for

three or more Class II deficiencies. Section 429.14 (1) ( e ) 3.,

which AHCA does not rely on, authorizes AHCA to deny a license

for five or more Class III deficiencies that have been cited on a

single survey and have not been corrected within the times

specified. Section 429.14(1)(k) authorizes AHCA to deny a

license for an y act constituting a ground upon which an

application may be denied. Section 408.806(7) (a) provides that

an applicant must demonstrate compliance with the requirements in

this part, authorizing statutes, and applicable rules during an

inspection pursuant to section 408.822, as required by

authorizing statutes. Section 408.815(1)(b) authorizes AHCA to

deny a license for an intentional or negligent act materially

affecting the health or safety of a resident of an ALF. Section

408.815(1)(e) authorizes AHCA to deny a license for a violation

of this part, authorizing statutes, or applicable rules.

10 2 . As detailed above, AHCA failed to demonstrate by a

preponderance of the evidence that APCH committed the three

Class II deficiencies and an uncorrected Cla ss III deficiency at

the time of the January 20 through 27, 2015, survey.

10 3 . Class II violations are those deficiencies which

directly threaten the physical or emotional health, safety, or

security of residents. Class III violations are those

deficien cies which indirectly or potentially threaten the

physical or emotional health, safety, or security of residents .

§§ 408.813(2)(a) & (b), Fla. Stat.

1 0 4 . As to Tag A030 (Class II deficiency) , AHCA relies on

section s 429.28 (1)(a) and (j) , Florida Statutes , which pro vide ,

in pertinent part:

(1) No resident of a facility shall be

deprived of any civil or legal rights,

benefits, or privileges guaranteed by law,

the Constitution of the State of Florida, or

the Constitution of the United States as a

resident of a facility. Every resident of a

facility shall have the right to:

(a) Live in a safe and decent living

environment, free from abuse and neglect.

* * *

(j) Access to adequate and appropriate

health care consistent with established and

reco gnized standards within the community.

10 5 . A health care provider Ðmeans a physician or

physicianÓs assistant licensed under Chapter 458 or 459, F.S., or

advanced registered nurse practitioner licensed u nder Chapter

464, F.S.Ñ Fla. Admin . Code R . 58A - 5.0131(16).

10 6 . As detailed above, AHCA failed to prove, by a

preponderance of the evidence , that M.R. lived in an unsafe

living environment; that she was subjected to abuse and neglect;

or that she was denied access to adequate and appropriate health

care consistent with established and recognized standards within

the community.

10 7 . The persuasive evidence adduced at hearing establishes

that at all times material hereto, M.R. has lived in a safe and

decent living environment at APCH , fr ee from abuse and neglect,

and that she was provided access to adequate and appropriate

health care consistent with established and recognized standards

within the community.

10 8 . As to Tag A077 (Class II deficiency) , AHCA relies on

Florida Adminis trative Code Rule 58A - 5.019 , which provides in

pertinent part as follows:

58A - 5.019 Staffing Standards .

(1) ADMINISTRATORS. Every facility must be

under the supervision of an administrator who

is responsible for the operation and

maintenance of the faci lity including the

management of all staff and the provision of

appropriate care to all residents as required

by Chapters 408, Part II, 429, Part I, F.S.

and Rule Chapter 59A - 35, F.A.C., and this

rule chapter.

10 9 . In its p roposed recommended or der, AHCA argues that

APCH Ð failed to provide appropriate supervision by the

administrator in that M.R. was not provided with adequate

medical care at the time of her fall in January 2015 and in her

lack of follow - up medical care afterward.Ñ

1 10 . As detailed above, AHCA failed to prove, by a

preponderance of the evidence , that M.R. was not provided

adequate medical care for the injuries she received as a result

of the fall.

1 11 . T he persuasive evidence adduced at hearing

establishes that M.R. was provided adequate medical care for the

injuries she received as a result of the fall.

1 1 2 . As to Tag A025 (Class II deficiency) , AHCA relies on

rule 58A - 5.0812(1) , which provides as follows:

58A - 5.0182 Resident Care Standards.

An assisted liv ing facility must provide care

and services appropriate to the needs of

residents accepted for admission to the

facility.

(1) SUPERVISION. Facilities must offer

personnel supervision as appropriate for each

resident, including the following:

(a) Mon itoring of the quantity and quality

of resident diets in accordance with Rule

58A - 5.020, F.A.C.

(b) Daily observation by designated staff of

the activities of the resident while on the

premises, and awareness of the general

health, safety, and physical a nd emotional

well - being of the resident.

(c) Maintaining a general awareness of the

residentÓs whereabouts. The resident may

travel independently in the community.

(d) Contacting the residentÓs health care

provider and other appropriate party such a s

the residentÓs family, guardian, health care

surrogate, or case manager if the resident

exhibits a significant change; contacting the

residentÓs family, guardian, health care

surrogate, or case manager if the resident is

discharged or moves out.

(e) M aintaining a written record, updated as

needed, of any significant changes, any

illnesses that resulted in medical attention,

changes in the method of medication

administration, or other changes that

resulted in the provision of additional

services.

1 1 3 . A Ðsignificant changeÑ is defined in rule 58A -

5.0131(32) as follows:

(32) ÐSignificant ChangeÑ means a sudden or

major shift in behavior or mood inconsistent

with the residentÓs diagnosis, or a

deterioration in health status such as

unplanned weight change, stroke, heart

condition, enrollment in hospice, or stage 2,

3 or 4 pressure sore. Ordinary day - to - day

fluctuations in functioning and behavior, a

short - term illness such as a cold, or the

gradual deterioration in the ability to carry

out th e activities of daily living that

accompanies the aging process are not

considered significant changes.

11 4 . As detailed above, AHCA failed to prove, by a

preponderance of the evidence, that M.R. suffered a significant

change in her health status as a r esult of her injuries from the

fall. T he persuasive evidence adduced at hearing establishes

that M.R. did no t suffer from a significant change in her health

status as a result of her injuries from the fall . The injuries

M.R. sustained as a result of the fall were short - term, requiring

first - aid treatment, only. M.R. was able to carry out her same

activities of daily living before and after the fall. 10/

11 5 . As to Tag A152 (Uncorrected Class III deficiency) ,

AHCA relies on rule 58A - 5.023 (3) , which provi des as follows:

58A - 5.023 Physical Plant Standards.

(3) OTHER REQUIREMENTS

(a) All facilities must:

1 . Provide a safe living environment

pursuant to Section 429.28(1)(a), F.S.;

2. Be maintained free of hazards; and

3. Ensure that all existing architectural,

mechanical, electrical and structural

systems, and appurtenances are maintained in

good working order.

(b) Pursuant to Section 429.27, F.S.,

residents must be given the option of using

their own belongings as space permits. When

the fac ility supplies the furnishings, each

resident bedroom or sleeping area must have

at least the following furnishings:

1. A clean, comfortable bed with a mattress

no less than 36 inches wide and 72 inches

long, with the top surface of the mattress at

a co mfortable height to ensure easy access by

the resident;

2. A closet or wardrobe space for hanging

clothes;

3. A dresser, chest or other furniture

designed for storage of clothing or personal

effects;

4. A table or nightstand, bedside lamp or

floor lamp, and waste basket; and

5. A comfortable chair, if requested.

11 6 . As detailed above, the preponderance of the evidence

fails to establish that the metal threshold was a hazardous or

potential hazardous condition.

11 7 . In its proposed recommend ed order, AHCA argues that

APCH also failed to provide Ðfurnishings in good working order.Ñ

AHCA does not identify in its proposed recommended order the

purported Ð furnishings Ñ it contends are not in Ð good working

order . Ñ Nevertheless , the undersigned pr esumes AHCA may be

r eferring to missing bedroom dresser door knob s i dentified in

Tag A152 from the October 21, 2014, survey , because the dresser

is the only ÐfurnishingÑ identified in this tag .

11 8 . A plain reading of rule 58A - 5.023 (3)(a)3., however,

re flects that the phrase Ðgood working orderÑ pertains to

Ðexisting architectural, mechanical, electrical systems, and

appurtenances, only . Ñ Th is rule does not pertain to p ersonal

furn ishing s inside a bedroom, such as a bedroom dresser.

11 9 . Moreover, at hearing, Ms. Calixte - Joasil testified

that she cited APCH in the October 2014 survey for the missing

dresser door knobs because of the requirement that residents live

in a Ðsafe and clean environment.Ñ Ms. Calixte - Joasil did not

rely at all on rule 58A - 5 .023(3)(a)3.

1 20 . Be that as it may, the alleged deficiencies found in

the October 2014 survey are irrelevant except to the limited

extent of determining whether the metal th reshold cited in the

January 20 through 27, 2015, survey is an ÐuncorrectedÑ

defi ciency . In other words, whether APCH actually committed the

specific deficiencies identified in the October 2014 survey is

irrelevant because AHCAÓs proposed action to deny the renewal

license is not based on the specific deficiencies cited in the

October 2014 survey. 11/

1 21 . A t hearing, Ms. Calixte - Joasil further acknowledged

that by the time of the January 20 through 27, 2015, survey, all

items identified in the October 2014 survey had been repaired.

1 2 2 . AHCAÓs attempt to characterize the metal thre shold as

an uncorrected Class III deficiency because it fell under the

same general physical plant tag of ÐTag A152 - Physical Plant Î

Safe Living Environment/Other,Ñ is without merit. AHCA attempts

to take numerous alleged deficiencies from the October 20 14

survey, all of which were corrected by the time of the January

2015 survey, and use them to characterize the metal threshold as

an uncorrected Class III deficiency .

12 3 . Although the alleged deficiencies from the two surveys

are all under the same broad umbrella tag category (Tag A152) ,

they are not the same. AHCAÓs attempt to take numerous prior

citations and make them the same based upon the same broad tag

number upon which they were cited is misplaced.

12 4 . To accept AHCAÓs position would allow it unfettered

discretion to decide , in any case, that any purported new

deficiency is an uncorrected deficiency , even though the

deficiencies identified in the two surveys are not the same.

AHCA could, as it has attempted to do so here, enter a facility

and cite as an uncorrected deficiency any item that had not even

been mentioned or cited before, simply because the item falls

within the same general broad category of a prior deficiency , and

even though the item was in the same condition at the time of

b oth surveys . Such unchecked authority would award AHCA for

either intentionally ignoring, or negligently missing, a n item in

a prior survey and then c alling it ÐuncorrectedÑ in a subsequent

survey, just because the item falls with the same general

categor y of a tag. Such purported authority is even more

troubling in the instant case, because AHCA concedes that all of

the items identified in the October 2014, survey had been

repaire d by the time of the January 20 through 27, 2015, survey ,

and AHCA concedes that APCH was unaware that the metal threshold

posed a potential hazard prior to the January 20 through 27,

2015, survey . 1 2 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that AHCA en ter a final order granting

APCHÓs license renewal application.

DONE AND ENTERED this 9 th day of December , 2015 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrat ive 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 9 th day of December , 2015 .

ENDNOT E S

1/ The MaysÓ Foundation is a non - profit foundation , which

represents both APCH and Ashley Gardens . M.R. was a resident of

Ashley Gardens from 2007 until her transfer to APCH on

December 29, 2014. Ms. Mays was already familiar with M.R. when

M.R. tr ansferred to APCH because Ms. Mays had known M.R. during

the time in which M.R. resided at Ashley Gardens.

2/ A hematoma or contusion is a bruise to an area of the body.

Tenderness indicates there may have been swelling in the area.

Eye discoloration, bruising, a cut on the face, and swelling, are

all consistent with the finding of a contusion /hematoma .

3/ Mr . Sterling was trained and qualified to measure M.R. Ós heart

rate and take M.R. Ós blood pressure, both of which were conducted

by a machin e , which automatically recorded the heart rate and

blood pressure reading s .

4/ M.R. was able to communicate if she needed Tylenol.

5 / No p ersuasive evidence was adduced at hearing to establish

that Dr. Alade believed M.R. should be admitted to the h ospital

because of anything having to do with the fall. Dr. Alade did

not testify. Any suggestion by AHCA that Dr. Alade believed M.R.

should be admitted to the hospital because of anything having to

do with the fall is rejected as speculative . Indeed, it could be

that Dr. Alade believed M.R. should be hospitalized b ecause of a

pre - admission chief complaint of hypertension , urinary tract

infection , or electrolyte imbalance, all of which were unrelated

to M.R. Ós injuries from the fall.

6 / At hearing, M s. Calixte - Joasil testified t here was a Ðbroken - -

crackedÑ . . . Ð cement are a which I described in the tag what I

saw and took pictures also of that.Ñ Contrary to

Ms. Calixte - JoasilÓs testimony, however, no broken cracked cemen t

area is described under Ta g A 152. The alleged environmental

hazard referred to under Tag A152 is the metal threshold , only .

Accordingly, any purported reliance by AHCA on the broken,

cracked, Ðcement areaÑ as a basis for the alleged uncorrected

Class III deficiency is rejected .

7 / Kristal Branton, an AHCA health facility evaluator supervisor,

reviewed the survey conducted by Ms. Calixte - Joasil. Ms. Branton

also went to APCH on January 27, 2015, and observed the metal

threshold area. Ms. Calixte - Joasil Ós and Ms. BrantonÓ s testimony

that even if no one had fallen there [at the metal threshold],

there still would have been a citation for environmental hazard,

is rejected as unpersuasive.

Moreover, Ms. Branton described the metal threshold area as

Ðnot flush with what a typical threshold looks like .Ñ She

testified that when she observed the area on January 27, 2015,

th ere was Ða big gap in which a -- like about an inch in which

something can like trip . . .Ñ At hearing, no evidence was

presented of any measurements take n of the metal threshold by

Ms. Branton or Ms. Calixte - Joasil . The undersigned also rejects

Ms. BrantonÓs testimony as unpersuasive.

8 / Notably, Ms. Calixte - Joasil testi fied as to the alleged

uncorrected Class III deficiency, based on her Ðtraining and

experience . . . [u]ncorrected mean[s] you go into the facility

and you go to survey to make sure that they corrected the

previous surveyÓs sufficiency. However, under that deficiency if

you find something else that falls under that deficiency, you can

r e - cite them for the same deficiency again.Ñ

Similarly, Ms. Branton testified that even if the metal

threshold was not cited in the October 21, 2014, survey, it was

an ÐuncorrectedÑ deficiency because there were other items

(missing door knob on a d resser) which fell under the same tag

category of Tag A152: 58A - 5.023(3) FAC Physical Plant - Î Safe

Living E nviron/Other , which were cited in the October 21, 2014,

survey. No basis was provided for Ms. BrantonÓs testimony. The

undersigned rejects Ms. Calix te - JoasilÓs and Ms. BrantonÓs

testimony , and the factual bases for Ms. Calixte - JoasilÓs

testimony, as unpersuasive.

9 / Recent decisions from two other A dministrative Law Judges

(ALJ s ) indicat e that in the context of the denial of a renewal

license based on specific acts of misconduct, the agency has the

burden to establish the alleged misconduct by Ðclear and

convincing evidence.Ñ See K i rk Ziadie v. DepÓt of Bus. & Prof Ól

Reg. , Case No. 15 - 5037 ( F la. DOAH Nov. 25, 2015 ) ; Ag. for Per s .

w ith Disab . v. Dani el Madistin , LLC #1 , Case No. 15 - 2422FL ( Fla.

DOAH Nov. 25, 2015 ) . Whether the burden is clear and convincing

or a preponderance of the evidence in this specific context is

unsettled. T he ALJ s in these cases acknowledge and discuss in

substantial detail the unsettled nature of the law.

Notably, in the instant case, neither party raised the issue

of whether the appropriate burden of proof is on AHCA to

establish the alleged deficiencies by clear and convincing

evidence . In fact, in their prehearing stipulation filed on

August 18, 2015, the parties stipulated that ÐPetitioner [APCH]

bears the burden of proof in this proceeding that they were in

compliance with the applicable statutes and rules so as to be

eligible for licensure as an Assisted Living Facility in the

State of Florida. The standard of proof is by a preponderance of

the evidence.Ñ AHCA reiterates this position in its proposed

recommended order.

The undersigned is not bound by the partiesÓ pre - hearing

stipulation on an issue of law. Moreover, the question of the

appropriate burden of proof is not an issue within the agencyÓs

area of expertise.

Upon receipt of the partiesÓ pre - hearing stipulation, the

undersigned scheduled a pre - hearing telephone conference with

counsel f or the parties . The pre - hearing telephone conference

was held on August 24, 2015, with counsel for both parties

p articipating in the conference. D uring the pre - hearing

telephonic conference, the undersigned indicated that based on

the Osborne and M.H. de cisions, AHCA b ears the burden in this

proceeding to establish the alleged deficiencies by a

preponderance of the evidence. Th e undersigned reiterated this

position at the outset of the final hearing.

Notably, i n M.H. , the court did not have an oc casion to

specifically address whether the stricter clear and convincing

evidence burden applied to the denial of a renewal license based

on specific instances of misconduct . Rather, b ecause the day

care facility prevailed before the ALJ in that case and no issue

was raised as to whether the burden was clear and convincing , t he

court needed only to address that the correct standard is no less

than preponderance of the evidence.

Similarly, because neither party in the instant case raised

the issue o f whether AHCA bears the burden to establish the

alleged deficiencies by clear and convincing evidence, the

undersigned need not address this issue now. The undersignedÓs

conclusion that AHCA bears the burden of proof, in the instant

case, to establish th e alleged deficiencies by a preponderance of

the evidence, should not be read as a definitive ruling that in

all non - renewal licensure cases, the preponderance of the

evidence standard applies.

Indeed, the timing of the Notice of Intent to Deny cou ld

militate in favor of a Ðclear and convincingÑ standard . AHCA

issued its Notice of Intent to Deny 17 days after APCHÓs renewal

license expired, and 20 days after the February 23, 2015, survey,

at which time no deficiencies were found. The Notice of Int ent

to Deny seeks to impose the ultimate penalty of non - renewal,

only, although the events giving rise to the Notice of Intent to

Deny occurred many months earlier while APCH was duly licensed

and acting in its capacity as a licensee. Had AHCA not waited

until after the expiration of the license to take action, and

instead, filed an administrative complaint seeking either the

penalty of a fine or revocation, there would be no question that

the burden of proof on AHCA in such a proceeding would be by

clear and convincing evidence.

Nevertheless, t he undersigned declines to address th e

specific issue of whether the clear and convincing burden applies

for the first time now because it is unnecessary to do so , and

because the issue was not raised by th e parties prior to the

hearing or the issuance of this Recommended Order .

S uffice it to say , however, that because AHCA has not met

its burden in the instant case by a preponderance of evidence, it

certainly cannot meet a stricter burden to establi sh the

deficiencies by clear and convincing evidence.

1 0 / Notably, AHCAÓs survey specifically states that rule

58A - 5.0182(1) was Ðnot met as evidenced by: Surveyor 27207 [.]

Based on observation, interview and record review the facility

failed to ma intain a written record of any significant change for

one out of eight residents.Ñ (E mphasis added).

The survey findings in support of this tag go on to address

alleged deficiencies regarding the lack of documentation in the

written record of APCH , only . At hearing, Ms. Calixte - JoasilÓs

testimony in support of this tag was limited to her criticism of

the written record , only .

In its proposed recommended order, AHCA argues for the first

time that rule 58A - 5.0182(1) was violated because Ð[AP CH] failed

to provide proper supervision for resident M.R. in that the

Administrator did not contact the residentÓs primary care

physician after the resident exhibited a significant change. Ñ

( E mphasis added). This point was not asserted in the survey ,

no tice of intent to deny , or at the final hearing . Accordingly,

AHCA is precluded from making this argument for the first time in

its proposed recommended order. Even if AHCA was not precluded

from making this argument, however, its position still lacks

me rit because the evidence adduced at hearing establishes that

M.R. did not suffer from a significant change as defined by

applicable law .

11/ Notably, the rule upon which AHCA relies does not require a

ÐcleanÑ environment, only a ÐsafeÑ environment.

1 2 / The determination of whether t he metal threshold constitutes

an uncorrected Class III deficiency is not an issue within the

agencyÓs area of expertise. Indeed, no evidence or argument has

been presented in support of such a proposition. At hearing,

Ms. Calixte - Joasil merely testified that she relied on her

training and experience in reaching her conclusion , and

Ms. Branton provided no basis for her testimony . Nevertheless,

AHCA conceded at hearing that a facility only has a duty to

correct a p otent ial hazard if it is aware of the potential

hazard, and the evidence presented at hearing establishes that

both APCH and AHCA were unaware that the metal threshold posed a

potential hazard prior to the January 20 through 27, 2015,

survey.

COPIES FURNISHE D:

Nathaniel E. Green, Esquire

Law Offices of Nathaniel E. Green, P.A.

Post Office Box 100663

Fort Lauderdale, Florida 33310

(eServed)

Nelson E. Rodney, Esquire

Agency for Health Care Administration

Suite 300

8333 Northwest 53rd Street

Miami, Florida 3 3166

(eServed)

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tall ahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

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.