99-002755 Agency For Health Care Administration vs. Elvira Demdam, D/B/A Ingleside Retirement Home Status: Closed Recommended Order on Friday, January 7, 2000.

Summary: Fines approved for operating an Assisted Living Facility without a license and for admitting one more resident than allowed by license. Fine requested was reduced based on rule criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 99-2748

)

SAN JUAN RETIREMENT )

HOME-UNLICENSED, )

)

Respondent. )

______________________________)

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 99-2755

)

ELVIRA DEMDAM, d/b/a )

INGLESIDE RETIREMENT HOME, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed-fact

hearing on October 21, 1999, in Jacksonville, Florida, before

Ella Jane P. Davis, a duly-assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health

Care Administration

Fort Knox Building 3, Suite 3408D

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: Elvira Demdam, Administrator

Ingleside Retirement Home

732 Camp Milton Lane

Jacksonville, Florida 32220

STATEMENT OF THE ISSUES

1. In Case No. 99-2748, should Elvira Demdam, d/b/a San

Juan Retirement Home, be administratively fined for operating an

unlicensed facility, and if so, in what amount?

2. In Case No. 99-2755, should Elvira Demdam, d/b/a

Ingleside Retirement Home, be administratively fined for

exceeding the home's licensed capacity, and if so, in what

amount?

PRELIMINARY STATEMENT

Respondent, Elvira Demdam, was notified by Petitioner,

Agency for Health Care Administration (AHCA), in an

Administrative Complaint dated May 26, 1999, of its intent to

impose an administrative fine in the amount of $1000.00 against

Respondent, the licensee of an Assisted Living Facility ( ALF),

Ingleside Retirement Home, located at 732 Camp Milton Lane,

Jacksonville, Florida, because Respondent exceeded its maximum

licensed capacity of 18 by one resident. (DOAH Case No. 99-2755)

Respon dent was also notified by the Agency in an

Administrative Complaint dated May 26, 1999, of its intention to

impose an administrative fine in the amount of $1000.00 against

her for operating an unlicensed ALF, San Juan Retirement Home, a

facility located at 6561 San Juan Avenue, Jacksonville, Florida.

(DOAH Case No. 99-2748)

Respondent requested a disputed-fact hearing in both cases,

which were referred to the Division of Administrative Hearings on

or about June 25, 1999. The two cases were consolidated.

At the disputed-fact hearing, Petitioner presented the oral

testimony of Robert Dickson and Gloria Wolfe and had seven

exhibits admitted in evidence with regard to Case No. 99-2748,

and eleven exhibits admitted with regard to Case No. 99-2755.

Respondent testified and had six exhibits admitted in evidence.

Several of Respondent's exhibits were sub-labeled "A", "B" and

"C" for clarity.

Each party timely filed Proposed Recommended Orders, which

have been considered. However, the Transcript was not filed

until December 13, 1999, after both proposals. It has been

considered, also.

FINDINGS OF FACT

1. AHCA is the state agency responsible for licensing and

regulation of ALFs in Florida.

2. Respondent, Elvira Demdam, operates both Ingleside

Retirement Home and San Juan Retirement Home in Jacksonville,

Florida.

3. Gloria Wolfe is employed by AHCA to inspect ALFs for

compliance with state and federal regulations for such

facilities.

4. Elvira Demdam is the licensee for Ingleside Retirement

Home. The effective date of the license for Ingleside was

October 27, 1997. Its expiration date was October 26, 1999.

5. On April 26, 1999, Ms. Wolfe surveyed a facility doing

business as San Juan Retirement Home due to a complaint that San

Juan was operating as an unlicensed ALF.

6. During Ms. Wolfe's inspection, San Juan Retirement Home

had four residents, all of whom were being provided personal

services by the home, including assistance with meals,

administration of medications, and assistance with other

essential activities of daily living. Therefore, the San Juan

facility was being operated as an ALF on April 26, 1999.

7. In a letter dated April 27, 1999, AHCA imposed a

moratorium on admissions, effective April 26, 1999, on Ingleside

Retirement Home, because Ms. Demdam had an interest in Ingleside

Retirement Home and an interest in San Juan Retirement Home,

which was operating without a license. The moratorium for

Ingleside was to remain in force until the unlicensed facility

(San Juan) ceased operation, and no residents could be readmitted

without approval of AHCA.

8. On April 27, 1999, Ms. Wolfe's superior, Mr. Robert

Dickson, recommended a $1,000.00 sanction, based on Ms. Wolfe's

report and because he believed that previous sanctions had been

recommended against the Ingleside Retirement Home within the

licensure period for the same type of deficiency. However, at

hearing, he did not specify any previous sanctions against

Ingleside, similar or otherwise.

9. Elvira Demdam is the licensed administrator of Ingleside

Retirement Home and should have known of the legal requirement

that San Juan Retirement Home be licensed.

10. Indeed, by her own admission, Ms. Demdam had been a

nursing home administrator for four years, knew of the licensure

requirement, and had been attempting to license the San Juan

facility since at least 60 days before the property was

transferred to her. San Juan was licensed to another person at

the time Ms. Demdam took it over. That prior license had expired

in December 1998, and Ms. Demdam did not get San Juan Retirement

Home licensed in her name until July 1999.

11. Ms. Demdam's exhibits support her testimony that much

of her license application paperwork for San Juan Retirement Home

was lost in the mail or within AHCA and that ACHA repeatedly

required that she re-submit the same documents. However, she did

not establish that the Agency failed to grant or deny her

application within 90 days of submission of all necessary

application items. The fact remains that on April 26, 1999, Ms.

Demdam was operating San Juan Retirement Home without a valid ALF

license.

12. Although Ms. Demdam asserted that one or more of the

San Juan residents were non-blood relatives who had lived with

her as family members since 1995, she offered no corroborative

evidence on this issue, and this assertion is not found to be

credible.

13. Ms. Wolfe also participated in a May 4, 1999,

monitoring visit and survey of Ingleside Retirement Home. At

that time, she found Ingleside to be operating in excess of its

licensed capacity. Ingleside Retirement Home is licensed for 18

residents, but in fact, had 19 residents on that date.

14. Ms. Wolfe personally reviewed residents, room by room,

and made a census of Ingleside Retirement Home on May 4, 1999.

Her census shows that a nineteenth resident, S.W., had been

admitted to Ingleside in March 1999. Ms. Wolfe's investigation

revealed that this resident was not noted in Ingleside's

admissions/discharge log. Despite arguments that this deficiency

constituted a Class III violation, an A-004 "not classified"

deficiency was actually issued. (See ACHA Exhibit 4, page 3)

15. Ms. Demdam's explanation for the extra resident in

Ingleside Retirement Home was that she had taken in S.W. at the

request of a case worker for the Department of Children and

Family Services ( DCF) as an emergency placement on a weekend for

a projected stay of only two to four weeks but that due to

unforeseen circumstances, DCF had not removed S.W. timely. It is

unclear from this record whether the patient, S.W., put the

census of Ingleside over 18 patients in March, the time that she

was first taken in. It is also unclear exactly how long S.W.

caused Ingleside's census to exceed the 18 patients provided for

on its license, but as of May 1999, Ms. Demdam was providing care

for S.W. and another Ingleside resident, J.J., without pay.

16. Mr. Dickson testified that he recommended a $1000.00

fine as a sanction for having the one extra resident in Ingleside

Retirement Home on May 4, 1999, because of prior sanctions

recommended within the licensure period for the same type of

deficiency. However, the only similar deficiency or sanction he

noted during his testimony was the Ingleside moratorium which had

been based upon the lack of licensure of the San Juan facility.

17. By a letter dated May 7, 1999, AHCA notified the

Respondent of the findings supporting the imposition of a

moratorium at Ingleside.

18. Ms. Demdam testified credibly that she moved S.W. out

of Ingleside Retirement Home as soon as she was notified and that

she cleared-out the four residents of San Juan Retirement Home as

soon as possible.

19. Mr. Dickson views both ALF citations very seriously

because operating an ALF without a license can be prosecuted by

the State Attorney as a third-degree felony (see Section

400.408(1)(b)-(c), Florida Statues, ( Supp. 1998) and because he

views Ms. Demdam's long practice and licensure in the ALF field

to demonstrate her knowing and willful disregard of the law.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action, pursuant to Section 120.57(1), Florida Statutes.

21. Despite citations to other years' statutes provided

among the exhibits admitted without objection and provided within

Petitioner's Proposed Recommended Order, the undersigned has

determined that the 1998 Supplement to Florida Statutes 1997,

applies to the inspection dates herein of April 26, 1999, and

May 4, 1999.

22. Section 400.407(1), Florida Statutes ( Supp. 1998)

provides that a license issued by AHCA is required to operate

an ALF in Florida.

23. Section 400.408 (1)(a), Florida Statutes ( Supp. 1998),

renders it unlawful to own, operate, or maintain an ALF without a

license.

24. Section 400.408, Florida Statutes ( Supp. 1998), further

provides in pertinent part:

(1)(f) When a licensee has an interest in

more than one assisted living facility, and

fails to license any one of those facilities,

the agency may impose a moratorium on any or

all of the licensed facilities until such

time as the unlicensed facility applies for

licensure or ceases operation.

25. Section 400.414, Florida Statutes ( Supp. 1998) provides

in pertinent part:

(1) The agency may deny, revoke, or suspend

any license issued under this part, or impose

an administrative fine in the manner provided

in Chapter 120, for any of the following

actions by an assisted living facility, any

person subject to level 2 background

screening under s. 400.4174, or any facility

employee:

(m) Knowingly operating any unlicensed

facility or providing without a license any

service that must be licensed under this

chapter.

26. Rule 58A-5.033(3)(a), Florida Administrative Code,

provides for fines of $500-$5,000 for operation of an unlicensed

ALF.

27. The violation of operating an unlicensed facility at

San Juan Retirement Home has been proven by clear and convincing

evidence, and the $1,000.00 fine sought by the Agency is

appropriate.

28. Section 400.419(1)(a)-(d), Florida Statutes

( Supp. 1998), classifies the gravity of violations of ALFs.

Subsections (2) and (3) provide as follows:

(2) The agency may set and levy a fine not

to exceed $1,000 for each violation which

cannot be classified according to subsection.

(3) In determining if a penalty is to be

imposed and in fixing the amount of the fine,

the agency shall consider the following

factors:

(a) The gravity of the violation, including

the probability that death or serious

physical or emotional harm to a resident will

result or has resulted, the severity of the

action or potential harm, and the extent to

which the provisions of the applicable laws

or rules were violated.

(b) Actions taken by the owner or

administrator to correct violations.

(c) Any previous violations.

(d) The financial benefit to the facility of

committing or continuing the violation.

(e) The licensed capacity of the facility.

29. Since the Agency assessed the extra resident of

Ingleside Retirement Home, S.W., as an "unclassified" violation,

Section 400.419(2), Florida Statutes ( Supp. 1998), applies.

30. Violation of the maximum-licensed capacity at Ingleside

Retirement Home has been proven by clear and convincing evidence.

However, the fine sought by the Agency is excessive under the

circumstances, especially since (1) no harm to any resident was

proven, (2) Respondent was not profiting from the situation with

S.W., (3) Respondent was attempting to license the San Juan

facility, (4) the length of time the Ingleside facility was in

violation was not established, and (5) no prior similar sanctions

were clearly proven. The proposed sanction of $1000 should not

be imposed. A reasonable fine under all the circumstances at

Ingleside is $500.00.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is RECOMMENDED:

1. That the Agency for Health Care Administration enter a

final order finding Respondent guilty of operating an unlicensed

facility and imposing an administrative fine in the amount of

$1,000 in DOAH Case No. 99-2748; and

2. That the Agency for Health Care Administration enter a

final order finding Respondent guilty of exceeding her licensed

capacity at Ingleside Retirement Home, and imposing an

administrative fine in the amount of $500.00 in DOAH Case No.

99-2755.

DONE AND ENTERED this 7th day of January, 2000, in

Tallahassee, Leon County, Florida.

____________________ _______________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of January, 2000.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health

Care Administration

Fort Knox Building 3, Suite 3408D

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Elvira Demdam, Administrator

San Juan Retirement Home Un-Licensed

6561 San Juan Avenue

Jacksonville, Florida 32210

Elvira Demdam, Administrator

Ingelside Retirement Home

732 Camp Milton Lane

Jacksonville, Florida 32220

Sam Power, Agency Clerk

Agency for Health

Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

Agency for Health

Care Administration

Fort Knox Building 3, Suite 3431

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.