00-001066
Agency For Health Care Administration vs.
H &Amp; C Retirement Center, Inc., D/B/A Retirement Life Center
Status: Closed
Recommended Order on Friday, September 29, 2000.
Recommended Order on Friday, September 29, 2000.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8AGENCY FOR HEALTH CARE )
13ADMINISTRATION, )
15)
16Petitioner, )
18)
19vs. ) Case No. 00-1066
24)
25H & C RETIREMENT CENTER, INC., )
32d/b/a RETIREMENT LIFE CENTER, )
37)
38Respondent. )
40__________________________________)
41RECOMMENDED ORDER
43Pursuant to notice, a formal hearing was held in this case
54by video teleconference with the parties appearing from Fort
63Lauderdale, Florida, on July 26, 2000, before J. D. Parrish, a
74designated Administrative Law Judge of the Division of
82Administrative Hearings.
84APPEARANCES
85For Petitioner: Alba M. Rodriguez, Esquire
91Agency for Health Care Administration
968355 Northwest 53rd Street
100Miami, Florida 33166
103For Respondent: Som Ramrup, Esquire
108Law Offices of Ramrup & Chang, P.A.
1155605 Northwest 27th Court
119Lauderhill, Florida 33313
122STATEMENT OF THE ISSUES
126Whether the Respondent, H & C Retirement Center, Inc., d/b/a
136Retirement Life Center, committed the violation as alleged and,
145if so, what penalty should be imposed.
152PRELIMINARY STATEMENT
154On May 10, 1999, the Petitioner, Agency for Health Care
164Administration (Petitioner or AHCA), issued an Administrative
171Complaint that alleged the Respondent violated provisions of
179Chapter 400, Florida Statutes, and Chapter 58A-5, Florida
187Administrative Code, in that it failed to timely correct a
197deficiency cited during a review of September 4, 1998. The
207Respondent disputed the allegation and requested a formal
215administrative hearing. The matter was forwarded to the Division
224of Administrative Hearings for formal proceedings on March 9,
2332000.
234At the hearing, the Petitioner presented testimony from
242Hansram Ramrup, Annette Thomas, and John Gabel. Petitioner's
250Exhibits numbered 1 through 6 were admitted into evidence. The
260Respondent offered testimony from Hansram Ramrup and Marc
268Celetti. The Respondent's Exhibits numbered 1 through 5 were
277also received into evidence.
281The Transcript of the proceeding and all the exhibits were
291filed with the Division of Administrative Hearings on
299September 5, 2000. The parties' proposed recommended orders were
308timely filed and have been considered in the preparation of this
319order.
320FINDINGS OF FACT
3231. The Petitioner is the state agency charged with the
333responsibility and authority to regulate facilities licensed
340pursuant to Chapter 400, Florida Statutes.
3462. At all times material to the allegations of this case,
357the Respondent was a licensed assisted living facility (ALF)
366doing business in Broward County, Florida. As such the
375Respondent is charged with operating in accordance with Chapter
384400, Florida Statutes, and Chapter 58A-5, Florida Administrative
392Code.
3933. Broward County's Emergency Management Division ( EMD) is
402entrusted with reviewing the Emergency Management Plans for all
411ALFs located in Broward County, Florida. The EMD filed a
421complaint against the Respondent on or about September 4, 1998.
4314. This complaint alleged that the Respondent had failed to
441update its Emergency Management Plan, a requirement set forth in
451the rules governing ALFs. The complaint was assigned to Annette
461Thomas, a surveyor employed by the Petitioner, for investigation.
4705. Ms. Thomas notified the Respondent of the alleged
479violation and directed the Respondent to correct the deficiency.
488Written notice of the deficiency was provided to the Respondent
498on or about September 22, 1998.
5046. Thereafter, Ms. Thomas waited for verification from
512either the Respondent or the EMD that the deficiency had been
523corrected. Ms. Thomas did not visit the facility, did not review
534the sufficiency of the physical plant, and did not allege any
545other deficiency with regard to the safety to residents.
5547. As part of her investigation, Ms. Thomas waited thirty
564days for the Respondent to correct the deficiency. It was not
575corrected within that time frame.
5808. On or about October 30, 1998, Ms. Thomas again drafted a
592notice to the Respondent to advise that the deficiency had not
603been corrected. This notice was provided to the Respondent on or
614about November 10, 1998.
6189. The Respondent did not correct the deficiency prior to
628the issuance of a deficiency letter issued on December 22, 1998.
639This notice advised the Respondent that the Petitioner would seek
649an administrative penalty for the uncorrected deficiency.
65610. Eventually, Ms. Thomas verified that the updated plan
665was approved and the facility was cleared of the deficiency in
676January of 1999.
67911. As part of its responsibility, the EMD had notified the
690Respondent of the requirement to file an updated Emergency
699Management Plan on or about February 27, 1998. Thereafter, the
709Respondent did not timely file the required documentation.
71712. After notice from the Petitioner, the Respondent
725contacted Mr. Gabel, the Planning Manager for the EMD, on or
736about December 7, 1998. Thereafter, Mr. Gabel received and
745reviewed the updated information submitted by the Respondent.
753Mr. Gabel requested additional information which he received on
762December 31, 1998. The updated plan was approved by Mr. Gabel on
774January 4, 1999.
77713. The Respondent maintained that actions were taken
785expeditiously to correct the cited deficiency but that it waited
795for the local Fire Department to perform a required inspection.
805This inspection was not completed until December 1998. Further,
814the Respondent argued that it serves an indigent population and
824that the imposition of a fine would not serve any purpose as the
837residents were not in danger of harm. Additionally, Respondent
846claimed such fine would be a financial hardship for it.
85614. The Respondent has not offered a credible explanation
865for why the documentation was not submitted in a timely manner.
87615. The Respondent failed to timely submit an updated EMD
886and the attendant documentation to the EMD. In this regard the
897testimony of Mr. Gabel has been deemed persuasive.
905CONCLUSIONS OF LAW
90816. The Division of Administrative Hearings has
915jurisdiction over the parties to and subject matter of this
925proceeding.
92617. The Petitioner bears the burden of proof in this case
937to establish the Respondent committed the violation as alleged.
94618. Section 400.419, Florida Statutes, authorizes AHCA to
954impose administrative fines for the violation of the rules
963promulgated to regulate ALFs. Violations are identified by
971classes according to the gravity and probable effect on facility
981residents.
98219. Rule 58A-5.026(2), Florida Administrative Code,
988provides:
989EMERGENCY PLAN APPROVAL. The plan shall be
996submitted for review and approval to the
1003county emergency management agency.
1007(a) The county emergency management agency
1013has 60 days in which to review and approve
1022the plan or advise the facility of necessary
1030revisions. Any revisions must be made and
1037the plan resubmitted to the county office of
1045emergency management within 30 days of
1051receiving notification from the county agency
1057that the plan must be revised.
1063(b) Newly-licensed facility and facilities
1068whose ownership has been transferred, must
1074submit an emergency management plan within 30
1081days after obtaining a license.
1086(c) The facility shall review its
1092emergency management plan on an annual basis.
1099Any substantive changes must be submitted to
1106the county emergency agency for review and
1113approval.
11141. Changes in the name, address, telephone
1121number, or position of staff listed in the
1129plan are not considered substantive revisions
1135for the purposes of this rule.
11412. Changes in the identification of
1147specific staff must be submitted to the
1154county emergency management agency annually
1159as a signed and dated addendum that is not
1168subject to review and approval.
1173(d) The county emergency management agency
1179shall be the final administrative authority
1185for emergency management plans prepared by
1191assisted living facilities.
1194(e) Any plan approved by the county
1201emergency management agency shall be
1206considered to have met all the criteria and
1214conditions established in this rule.
121920. In this case the Petitioner has established by clear
1229and convincing evidence that an annual review of the EMD is
1240required. In this regard the Respondent failed to keep the
1250substantive revisions of its plan current and the EMD correctly
1260requested information to update the plan. More troubling,
1268however, is the Respondent's failure to timely review the matter
1278and timely respond to the requirements of the law. The EMD gave
1290the Respondent notice of the due date of May 5, 1998, in February
1303of 1998. The EMD waited until July 21, 1998, before notifying
1314the Petitioner of the failure to timely submit the emergency
1324management plan. Ms. Thomas notified the Respondent of the
1333deficiency in September of 1998. It was not until late December
1344that the Respondent complied with the requirements of the rule.
1354One of the provisions required by the EMD was written
1364authorizations from the Respondent's employees. Such statements
1371were needed to assure that the Respondent could comply with
1381evacuation plans in the event of a disaster. This requirement
1391directly relates to the safety of the residents and the disaster
1402preparedness of this facility. As such, the Petitioner correctly
1411denoted this violation a class II deficiency.
1418RECOMMENDATION
1419Based on the foregoing Findings of Fact and Conclusions of
1429Law, it is RECOMMENDED that the Agency for Health Care
1439Administration enter a Final Order imposing a fine in the amount
1450of $1000.00.
1452DONE AND ENTERED this 29th day of September, 2000, in
1462Tallahassee, Leon County, Florida.
1466___________________________________
1467J. D. Parrish
1470Administrative Law Judge
1473Division of Administrative Hearings
1477The DeSoto Building
14801230 Apalachee Parkway
1483Tallahassee, Florida 32399-3060
1486(850) 488-9675 SUNCOM 278-9675
1490Fax Filing (850) 921-6847
1494www.doah.state.fl.us
1495Filed with the Clerk of the
1501Division of Administrative Hearings
1505this 29th day of September, 2000.
1511COPIES FURNISHED:
1513Alba M. Rodriguez, Esquire
1517Agency for Health Care Administration
15228355 Northwest 53rd Street
1526Miami, Florida 33166
1529Som Ramrup, Esquire
1532Law Offices of Ramrup & Chang, P.A.
15395605 Northwest 27th Court
1543Lauderhill, Florida 33313
1546Sam Power, Agency Clerk
1550Agency for Health Care Administration
1555Fort Knox Building 3, Suite 3431
15612727 Mahan Drive
1564Tallahassee, Florida 32308-5403
1567Julie Gallagher, General Counsel
1571Agency for Health Care Administration
1576Fort Knox Building 3, Suite 3431
15822727 Mahan Drive
1585Tallahassee, Florida 32308-5403
1588NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1594All parties have the right to submit written exceptions within 15
1605days from the date of this Recommended Order. Any exceptions to
1616this Recommended Order should be filed with the agency that will
1627issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 09/29/2000
- Proceedings: Recommended Order issued (hearing held July 26, 2000) CASE CLOSED.
- PDF:
- Date: 09/15/2000
- Proceedings: (Petitioner) Proposed Recommended Order (For Judge Signature) (filed by via facsimile).
- PDF:
- Date: 09/14/2000
- Proceedings: Respondent`s Proposed Findings of Fact and Brief in Support (filed via facsimile).
- PDF:
- Date: 09/14/2000
- Proceedings: Notice of Change of Address of Respondent`s Counsel (filed by S. Ramrup via facsimile).
- Date: 09/05/2000
- Proceedings: Transcript (Volume 1) filed.
- PDF:
- Date: 07/18/2000
- Proceedings: Notice of Appearance (filed by A. Rodriguez); Fax cover sheet w/ Request for Subpoena filed.
- PDF:
- Date: 04/17/2000
- Proceedings: Notice of Hearing sent out. (hearing set for July 26, 2000; 9:00 a.m.; Fort Lauderdale, FL)
- Date: 03/15/2000
- Proceedings: Initial Order issued.