00-003838 Hyacinth`s Family Center vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, February 14, 2001.

Summary: Evidence of denial of re-licensing for cause at another facility owned by Petitioner is sufficient under the statute to deny re-licensure at instant facility owned by Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HYACINTH'S FAMILY CENTER, )

)

Petitioner, )

)

vs. )

) Case No. 00-3838

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

A hearing was held in this case in Orlando, Florida, on

December 12, 2000, before Arnold H. Pollock, an Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. Bruce McKibben, Jr., Esquire

Post Office Box 1798

Tallahassee, Florida 32302-1798

For Respondent: Mark S. Thomas, Esquire

Agency for Health Care

Administration

2727 Mahan Drive

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether

Petitioner, Hyacinth Wallace, should be issued a renewal

license for Hyacinth's Family Center, an assisted living

facility operated at 7965 Murcott Center, Orlando, Florida.

PRELIMINARY MATTERS

By letter dated February 10, 2000, Mary Loepp, program

administrator of the Agency for Health Care Administration's

(Agency) Bureau of Health Facility Compliance, advised

Petitioner herein, Hyacinth Wallace, that pursuant to Section

400.414(3), Florida Statutes, her application for renewal of

licensure of the assisted living facility in issue had been

denied because she previously had been denied renewal of

licensure for another assisted living facility, Tuscawilla

Acres, on January 11, 2000. On March 15, 2000, Ms. Wallace

requested a formal hearing on this latter denial, and this

hearing ensued.

Prior to the takin g of any testimony, Petitioner moved

for the entrance of a Summary Recommended Order based on the

fact that she had voluntarily surrendered her license for

Tuscawilla Acres, and, therefore, there was no denial of re-

licensure for cause to support the denial of the instant

license under the provisions of Section 400.414(3), Florida

Statutes. Considering the Tuscawilla license was relinquished

after initial re-licensure was denied based on cause, the

motion was denied.

At the hearing, the Agency presented t he testimony of

Lorraine B. Henry, at the time in issue a facility evaluator

for the Agency; Daryl Barowicz, a health services facility

consultant with the Agency; and Doris Spivey, a licensing

surveyor for the Agency. The Agency also introduced

Respondent's Exhibits B through J. The Agency also offered

Respondent's Exhibit A for Identification, a survey report

relating to Hyacinth's Family Center reflecting deficiencies

in a survey done on October 7, 1999. This Exhibit was

rejected because the charging document in issue made no

reference to denial as a result of these deficiencies and

related solely to the denial of re-licensure of Tuscawilla.

Petitioner testified in her own behalf and presented the

testimony by deposition of Nucci Cento. This deposition was

introduced as Petitioner's Exhibit 1.

A Transcript of the proceedings was furnished on January

8, 2001, and subsequent to the receipt thereof, counsel for

both parties submitted matters in writing which were carefully

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the

Agency was the state agency responsible for the licensing and

regulation of assisted living facilities in Florida.

Petitioner, Hyacinth Winter Wallace, operated Hyacinth's

Family Center (the Center), a licensed assisted living

facility (ALF) at 7965 Murcott Circle in Orlando, Florida.

The Center is a six-bed, single-story facility, which has been

operated by Petitioner for the past 11 years.

2. In 1997, Ms. Wallace also opened another ALF,

Tuscawilla Acres, a 15,000-square-foot, two-story facility

located at 2323 Tuscawilla Road in Oviedo, Florida. A

biennial survey of Tuscawilla Acres was conducted by Doris

Spivey, a surveyor for the Agency, on May 19, 1999, during

which several deficiencies were identified and cited. A

follow-up visit to the facility on August 11, 1999, revealed

that twelve of the cited deficiencies were uncorrected. A

second follow-up visit to the facility, conducted on November

23, 1999, revealed several of the deficiencies still remained

uncorrected. Based on these uncorrected deficiencies, the

Agency indicated its intention to deny renewal of the

facility's license.

3. Ms. Wallace requested a formal hearing on the

Agency's decision to deny re-licensure of Tuscawilla and that

matter was referred to the Division of Administrative Hearings

for a hearing. However, before the hearing could be held,

Petitioner surrendered her license for Tuscawilla, rendering

that licensure issue moot.

4. After the Agency's notification of denial of re-

licensure of Tuscawilla, but before the hearing thereon could

be held, the Agency advised Petitioner of its intention to

deny re-licensure of the Center based on its denial of re-

licensure of Tuscawilla. The determination to deny re-

licensure to the Center was made based upon the intended

denial of re-licensure of Tuscawilla and the facts that the

deficiencies which formed the basis therefor were serious;

Petitioner's credibility with the Agency was low; and

Petitioner was the owner/operator of both facilities, as well

as others.

5. Doris Spivey, the Agency's surveyor in both the

Tuscawilla and the Center re-licensure applications,

recommended to the Agency, after completion of her surveys,

that the Center's license renewal application be denied.

Notwithstanding that most recommendations of this nature are

made in writing, in the case of the Center's application, the

recommendation was made orally. No explanation was given for

that omission. However, there is no question that based on

her investigation of the entire matter, based on the serious

nature of Tuscawilla's uncorrected deficiencies, and based on

the fact that she did not consider Petitioner to be of

sufficient character to operate adult living facilities, she

recommended denial of renewal of the Center's license.

6. According to Ms. Spivey, as of November 23, 1999, the

date of her last visit to Tuscawilla Acres, several

deficiencies still existed. These included a substantial lack

of clarity in the facility's financial records; a failure to

have beneficiary disposition forms on file; a failure to

accomplish required background screening on all employees; a

lack of appropriate supervision of medications; and a failure

to ensure all residents received their required therapeutic

diets. In addition, Ms. Spivey noted that the facility census

exceeded the number of residents authorized under the license,

and there was no admissions and dispositions log being kept

for the facility. Each of these deficiencies, individually,

would be sufficient grounds for denial of re-licensure.

7. In addition to the above factors, though Petitioner

denies it, Ms. Spivey determined that, contrary to

regulations, at least one resident was residing on the second

floor of the facility without access to a fire escape. This

constitutes a serious violation of the fire code.

8. The accounting for residents among the facilities

operated by Petitioner leaves substantial questions

unanswered. For example, one resident, A.G., was identified

by the Department of Children and Families as receiving

Optional State Supplementation (funds) as a resident of

Tuscawilla Acres; yet, she was reportedly only a day visitor.

If a resident of the facility, A.G. should have been

identified as such so she could be followed by the Agency.

Petitioner claims she was not a resident but a day visitor.

If so, she should not be receiving an OSS check at the

facility.

9. A.G.'s sister, who testified by deposition, clearly

indicated that A.G. resided at Tuscawilla briefly in early

1999, but was only a day visitor thereafter. Since the

Department of Children and Families form reflecting the

enrollment of A.G. in the OSS program is dated in August 1998,

while there may be an inconsistency in some dates, there does

not appear to be any misconduct regarding the payments unless

payments were continued to Tuscawilla after Ms. G's departure.

There is no evidence of that.

10. When Ms. Spivey examined the admission and

disposition log at Tuscawilla on her November 23, 1999, visit,

she was accompanied by Ms. Wallace. Ms. Wallace told her at

the time that residents included N.L., E. McD., Ms. G., M.J.,

and G.K., in addition to a Mr. McGee, who was not a bona fide

resident of the facility but who lived on the second floor.

As it turns out, Ms. Wallace's list was not accurate. Other

records at the facility examined by Ms. Spivey reflect an

individual named A. (last name unknown); B.S., and another

woman whose first name was D. Her last name is also unknown.

In addition, a Ms. S. paid for day care. Medications were

found bearing the name of A.P. Taken together, it appeared

there were at least eight or nine residents living at the

facility, not just the four mentioned by Ms. Wallace. The

facility license permits only five residents.

11. Ms. Wallace denied all those people lived at

Tuscawilla Acres, so Ms. Spivey obtained the names of family

members to check with for independent verification. Her query

indicated that all the people mentioned lived at the facility

except Ms. P. who used to live there.

12. The survey process utilized by the Agency is based

on trust, and the surveyors generally believe what they are

told by the operator. However, in this case, where the facts

developed did not reconcile with the records and the

medications on hand, Ms. Spivey felt constrained to verify

what she was told. When she did so, she found that in many

cases the operator's representations were not accurate.

13. For example, with regard to physician's health

assessments, required periodically of all residents, but

especially upon admission, one form which had been telefaxed

to Ms. Spivey by Ms. Wallace was found to have been altered as

to the date of the assessment so as to make it appear current

when it was not. In addition, Ms. Spivey found at least one

alteration to a resident's diet record, and when this was

brought to Ms. Wallace's attention, she became angry.

14. Another record discrepancy relates to the

application for the required background screening of an

employee, Roy Ingram. Mr. Ingram was an immigrant from

Jamaica who did not have a social security number. An

application for background screening was submitted on or about

August 10, 1999, listing the social security number of the

applicant as 212-58-7964; Ms. Wallace signed the application

and forwarded it for screening. She claims not to remember

whose name appeared on the application when it was submitted,

but the social security number on the form belongs to Barbara

Ingram, Roy Ingram's wife. The search of the Agency's records

reflected that the only application for a background screening

bearing that number in 1999 related to Barbara Ingram. When

the report of screening came back from the Agency reflecting

Barbara Ingram clear of any disqualifying reports, Ms. Wallace

changed the name "Barbara" on the form to "Roy" in both

places. This is inappropriate.

15. Based on her investigation of Ms. Wallace's

operation at Tuscawilla, the inconsistencies and the

deficiencies shown, the same hands-on management of both

facilities by Petitioner, Ms. Wallace, and her conviction that

Ms. Wallace should not be licensed to operate any facility,

Ms. Spivey recommended to the Agency that Ms. Wallace be

denied re-licensure to operate an ALF at Hyacinth's Family

Center.

16. Ms. Wallace has been operating ALFs in Florida for a

number of years without disciplinary action being taken

against her. She has operated the Center for 11 years and has

had no major problems. However, in 1998 her husband walked

out on her, and in June 1999, she underwent open heart

surgery. It was shortly after her surgery, in early August

1999, that the initial survey at Tuscawilla was conducted.

She did not advise the Agency surveyors at that time of her

physical condition. Only when the deficiencies were

discovered did she request additional time to correct them.

The extension of time was granted. In the past, Ms. Wallace

asserts, when she has had deficiencies on surveys, she has

corrected them and the license in question was renewed.

17. Tuscawilla Acres is a facility which catered to the

mentally deficient, those with dementia, and those with

diabetes. Most of the residents were poor people who came

from economically disadvantaged backgrounds and who had little

if any support system other than the federal and state

governmental programs.

18. Regarding the deficiencies reviewed by Ms. Spivey,

there were no negative outcomes to the residents as a result

of them, and none would, in Ms. Wallace's opinion, justify

termination of her license. When notified of them, after

requesting and obtaining a delay as a result of her surgery,

the required corrections were made. She denies ever receiving

any compensation for services she did not render. If the

Center's license is not renewed, the residents will have to be

moved, which, Ms. Wallace claims, may result in hardship to

the residents. No evidence in support of this claim was

presented, however.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

20. Section 400.414(3), Florida Statutes, provides:

The agency may deny a license to any

applicant or to any officer or board member

of an applicant who is a firm, corporation,

partnership, or association or who owns 5

percent or more of the facility, if the

applicant, officer, or board member has or

had a 25 percent or greater financial or

ownership interest in any other facility

licensed under this part, or in any entity

licensed by this state or another state to

provide health or residential care, which

facility or entity during the 5 years prior

to the application for a license closed due

to financial ability to operate; had a

receiver appointed or a license denied,

suspended, or revoked; was subject to a

moratorium on admissions; had an injunctive

proceeding initiated against it; or has an

outstanding fine assessed under this

chapter.

21. The evidence clearly has shown that Ms. Wallace's

license to operate Tuscawilla had been denied renewal for

cause and a hearing was pending on that action at the time the

license was voluntarily surrendered. The basis for the

pending denial was a series of actionable incidents, all of

which reflect seriously on her credibility and her suitability

to operate a facility such as in issue here.

22. There is no question that Ms. Wallace erased Barbara

Ingram's name from the background screening form and

substituted Roy Ingram's name after the application had been

sent for screening and cleared. There is no question that the

physician assessments of two of Tuscawilla's residents had

been altered. There is no question that the patient census at

Tuscawilla at the time of the pertinent survey exceeded her

licensed capability and that the facility's admissions and

discharge log did not accurately reflect the residents at the

time. There is little question that at least one resident

lived upstairs at Tuscawilla even after the facility was cited

by the fire department for that.

23. T aken together, these deficiencies would have

justified discipline of a current license at Tuscawilla, and

clearly justified denial of re-licensure, which was pending at

the time Petitioner voluntarily surrendered her license.

Also, individually and collectively, they cast serious doubt

on Petitioner's continued suitability to operate licensed

health or residential facilities. Whether the standard of

proof in this case is clear and convincing, as Petitioner

contends, or by a preponderance of the evidence, as the Agency

urges, under either standard the misconduct by Ms. Wallace has

been shown sufficient to support denial of her license at the

Center.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law it is recommended that the Agency for Health Care

Administration enter a final order in this matter denying

Hyacinth's Family Center renewal of its license to operate an

assisted living facility, at 7965 Murcott Center in Orlando,

Florida.

DONE AND ENTERED this 14th day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of February, 2001.

COPIES FURNISHED:

R. Bruce McKibben, Jr., Esquire

Post Office Box 1798

Tallahassee, Florida 32302-1798

Mark S. Thomas, Esquire

Agency for Health Care

Administration

2727 Mahan Drive

Tallahassee, Florida 32308

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.