05-003574 Agency For Health Care Administration vs. First Care Assisted Living Services, D/B/A First Care Assisted Living Services, Inc. Status: Closed Recommended Order on Tuesday, February 28, 2006.

Summary: The evidence was insufficient to prove any of the allegations in the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3574

)

FIRST CARE ASSISTED LIVING )

SERVICES, d/b/a FIRST CARE )

ASSISTED LIVING SERVICES, INC., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1 on

December 12, 2005, by video teleconference at sites in

Lauderdale Lakes and Tallahassee, Florida, before Administrative

Law Judge Michael M. Parrish of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Nelson E. Rod ney, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street, 1st Floor

Miami, Florida 33166

For Respondent: Richard J. Geisert, Esquire

2423 Hollywood Boulevard, Suit e A

Hollywood, Florida 33020

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint, and, if so, what sanctions, if any,

should be imposed.

PRELIMINARY STATEMENT

In or around May of 2003, the Agency for Health Care

Administration (Agency), filed a three - count Administrative

Complaint alleging that Respondent had committed three

violations deemed by the Agency to constitute Class III

deficiencies. The Administrative Complaint containe d the

following Claim for Relief:

WHEREFORE, the Agency requests the Court to

order the following relief:

1. Enter a judgment in favor of the Agency

for Health Care Administration against First

Care Assisted Living Services, Inc.[,] on

Counts I, II, and III.

2. Assess an administrative fine of

$1,500.00 against First Care Assisted Living

Services, Inc.[,] on Counts I, II, and III

for the violations cited above.

3. Assess costs related to the

investigation and prosecution of this

matter, if the Court f inds costs applicable.

4. Grant such other relief as the Court

deems is just and proper.

By petition filed by its attorney, Respondent timely

requested an evidentiary hearing on the charges asserted in the

Administrative Complaint. In due course, the m atter was

referred to DOAH for the assignment of an Administrative Law

Judge to conduct the hearing Respondent had requested.

At the final hearing in this case each party presented the

testimony of one witness. The Agency also offered six exhibits

(Agenc y Exhibits 2 through 7), all of which were received in

evidence. The Respondent did not offer any exhibits. At the

conclusion of the hearing, consistent with the requests of the

parties, the parties were allowed until January 17, 2006, within

which to fi le their proposed recommended orders. The transcript

of the hearing was filed with DOAH on January 3, 2006.

Thereafter, both parties filed timely Proposed Recommended

Orders containing proposed findings of fact and conclusions of

law. The parties' propo sals have been carefully considered

during the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the evidence adduced at the final hearing and the

record as a whole, including the factual stipulations contained

in the parties' Joint Prehear ing Stipulation, 2 the following

findings of fact are made:

Admitted facts

1. The Respondent operates a six - bed assisted living

facility located at 12085 West Dixie Highway, Miami, Florida

33161, and is licensed by the State of Florida under Chapter

400, P art III.

2. The Agency conducted surveys at First Care on

November 29, 2004, and on May 24, 2005, and identified three

alleged repeat deficiencies that were described as three

Class III deficiencies. An Administrative Complaint was filed

on August 15, 20 05.

3. The deficiencies alleged in the Administrative

Complaint are: (1) that the facility failed to maintain an

accurate record of admissions and discharges; (2) failed to have

weight recorded for some residents; and (3) failed to properly

complete the health assessment for some residents.

4. Because the deficiencies alleged in the Administrative

Complaint are alleged to be Class III deficiencies, the Agency

is seeking to impose a fine of $500.00 for each deficiency, for

a total fine of $1,500.00.

5. T he Respondent timely requested an evidentiary hearing

pursuant to Section 120.57(1), Florida Statutes.

6. The records provided by the Respondent through

discovery and those copied by the Respondent at the time of the

survey are authentic records that are true and correct.

Additional findings about Count I

7. Alfonso Martin, a Health Care Evaluator for the Agency,

conducted a survey inspection of the Respondent's facility on

November 29, 2004. There had been prior inspections of the

Respondent's facility. None of the prior inspections had

revealed any violations that resulted in any Agency action

against the facility.

8. The Respondent's admission and discharge log ("A&D

log") shows that Resident R.M. was taken from the Respondent's

facility by his guard ian to live with his fiancée. The A&D log

shows that Resident D.K. left the Respondent's facility and went

to the local VA Hospital. The A&D log shows that Resident P.H.

went first to the VA Medical Center and then to North Shore

Hospital. The A&D log d oes not contain any information as to

where Resident G.D. went, because that resident left the

Respondent's facility in a taxi without telling anyone where he

was going. The A&D log shows that Resident J.W. was discharged

or transferred "to his family." Actually, Resident J.W. did not

have any family, but he had friends who treated him like family.

Those friends had brought Resident J.W. to the Respondent's

facility and those same friends had arranged for J.W. to be

taken to a hospice facility by Vitas M edical Center. The A&D

log does not contain any information as to where Resident J.N.

went, because, after receiving an eviction notice, that resident

left the Respondent's facility in a taxi without telling anyone

where he was going.

9. Mr. Martin condu cted another survey inspection of the

Respondent's facility on May 24, 2005. During this inspection

Mr. Martin noted that, with regard to Resident R.M., the A&D log

showed "taken by guardian" as the place to which R.M. was

discharged. The A&D log also sh owed "other facility" as the

place to which Resident J.B. was discharged. Resident J.B. was

taken from the Respondent's facility by a State Ombudsman. The

State Ombudsman did not tell anyone at the Respondent's facility

where J.B. was being taken. At al l times, the Administrator of

the Respondent's facility did the best she could to maintain

appropriate records with the sometimes incomplete information

she received from the Residents.

Findings about Count II

10. During the course of the survey on Novemb er 29, 2004,

Mr. Martin reviewed the weight records at the Respondent's

facility. He did not see any weight records for Resident A.L.

On that date there was a written weight record for Resident

A.L., but for reasons not explained on the record in this ca se,

Mr. Martin did not see the record that day. If Mr. Martin had

seen the weight record for Resident A.L. on November 29, 2004,

he would not have cited the Respondent's facility for

insufficient weight records.

11. During the course of the survey on May 24, 2005,

Mr. Martin again reviewed the weight records at the Respondent's

facility. The records for Resident J.B. show he was admitted on

January 13, 2005, and that his weight was recorded on

February 21, 2005. The records for Resident P.H. show he was

admitted on November 1, 2004, but his weight was not recorded

until February 21, 2005. The records for Resident R.H. show

that he was admitted on May 1, 2005, but his weight was not

recorded until June 8, 2005. There is no evidence that the

quality of c are of any resident was diminished or compromised by

reason of the manner in which the weight records were prepared

and kept.

Findings about Count III

12. During the course of the survey on November 29, 2004,

Mr. Martin reviewed Health Assessments for res idents at the

Respondent's facility. He did not see any Health Assessments

for Residents J.W. or A.L. On that date there was a written

Health Assessment document for Resident A.L., but for reasons

not explained on the record in this case that document co uld not

be located during the course of the November 29, 2004, survey.

13. During the course of the survey on May 24, 2005,

Mr. Martin again looked at the Health Assessments. The survey

report states that Health Assessments for Residents 2, 3, and 4

were not completed. Mr. Martin testified about the Health

Assessment documentation of Resident R.H. In the survey report

for the May 24, 2005, survey, Resident R.H. was identified as

being either Resident 5 or Resident 11. Health Assessments are

not prepare d by employees of the Respondent facility. They are

prepared by third parties; usually medical doctors or health

care professionals working under the supervision of medical

doctors, such as physician assistants or advanced registered

nurse practitioners.

CONCLUSIONS OF LAW

14. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

15. Before imposing any sanction on a noncompliant

licensee, the Agency must give the licensee re asonable written

notice of the charges and an adequate opportunity to request an

administrative hearing pursuant to Chapter 120, Florida

Statutes. See Florida League of Cities v. Administration

Commission , 586 So. 2d 397, 413 (Fla. 1st DCA 1991)("Until

pr oceedings are had satisfying [S]ection 120.57, or an

opportunity for them is clearly offered and waived, there can be

no agency action affecting the substantial interests of a

person.").

16. Where "there is a disputed issue of material fact

which formed t he basis for the proposed final action [to impose

the sanction]," the licensee is entitled to an evidentiary

hearing held in accordance with Sections 120.569 and 120.57(1),

Florida Statutes. Florida Sugar Cane League v. South Florida

Water Management Dist rict , 617 So. 2d 1065, 1066 (Fla. 4th DCA

1993).

17. At the hearing, the Agency bears the burden of proving

that the alleged deficiencies occurred and that they were of

such nature and scope to warrant the sanction(s) the Agency

proposes to take. When t he Agency seeks to impose an

administrative fine, its proof must be clear and convincing.

See Department of Banking and Finance, Division of Securities

and Investor Protection v Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996)("[A]n administrati ve fine deprives the

person fined of substantial rights in property. Administrative

fines . . . are generally punitive in nature. . . . Because the

imposition of administrative fines . . . [is] penal in nature

and implicate[s] significant property rights , the extension of

the clear and convincing evidence standard to justify the

imposition of such a fine is warranted."). Clear and convincing

evidence "requires more proof than a 'preponderance of the

evidence' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). It is an "intermediate standard." Id. For proof to be

considered "'clear and convincing' . . . the evidence must be

found to be credible; the facts to which the witnesses testify

m ust be distinctly remembered; the testimony must be precise and

explicit and the witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of such weight that it

produces in the mind of the trier of fact a firm belief or

convic tion, without hesitancy, as to the truth of the

allegations sought to be established." In re Davey , 645 So. 2d

398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this

standard of pro of may be met where the evidence is in conflict,

. . . it seems to preclude evidence that is ambiguous."

Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc. ,

590 So. 2d 986, 989 (Fla. 1st DCA 1991).

18. In determining whether the Agency has met its burden

of proof, it is necessary to evaluate the Agency's evidentiary

presentation in light of the specific allegations made in the

charging instrument. Due process prohibits an agency from

taking penal action against a licensee based on matters not

specifically alleged in the charging instrument, unless those

matters have been tried by consent. See Shore Village Property

Owners' Association, Inc. v. Department of Environmental

Protection , 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Hamilton v.

Departme nt of Business and Professional Regulation , 764 So. 2d

778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health Care

Administration , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill

v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA

1996); and Del k v. Department of Professional Regulation , 595

So. 2d 966, 967 (Fla. 5th DCA 1992).

19. Section 400.419, Florida Statutes, includes the

following language:

1) The agency shall impose an

administrative fine in the manner provided in

chapter 120 for an y of the actions or

violations as set forth within this section

by an assisted living facility, for the

actions of any person subject to level 2

background screening under s. 400.4174 , for

the actions of any facility employee, or for

an intentional or negligent act seriously

affecting the health, safety, or welfare of a

resi dent of the facility.

(2) Each violation of this part and

adopted rules shall be classified according

to the nature of the violation and the

gravity of its probable effect on facility

residents. The agency shall indicate the

classification on the wri tten notice of the

violation as follows:

* * *

(c) Class "III" violations are those

conditions or occurrences related to the

operation and maintenance of a facility or to

the personal care of residents which the

agency determines indirectly or pote ntially

threaten the physical or emotional health,

safety, or security of facility residents,

other than class I or class II violations.

The agency shall impose an administrative

fine for a cited class III violation in an

amount not less than $500 and not exceeding

$1,000 for each violation. A citation for a

class III violation must specify the time

within which the violation is required to be

corrected. If a class III violation is

corrected within the time specified, no fine

may be imposed, unless it is a repeated

offense.

(d) Class "IV" violations are those

conditions or occurrences related to the

operation and maintenance of a building or to

required reports, forms, or documents that do

not have the potential of negatively

affecting residents. These violations are of

a type that the agency determines do not

threaten the health, safety, or security of

residents of the facility. The agency shall

impose an administrative fine for a cited

class IV violation in an amount not less than

$100 and not exceedi ng $200 for each

violation. A citation for a class IV

violation must specify the time within which

the violation is required to be corrected.

If a class IV violation is corrected within

the time specified, no fine shall be imposed.

Any class IV violation that is corrected

during the time an agency survey is being

conducted will be identified as an agency

finding and not as a violation.

(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 provis ions 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.

* * *

(11) The agency, as an alternative to or

in conjunction with an administrative action

against a facility for violations of this

part and adopted rules, shall make a

reasonable attempt to discuss each vi olation

and recommended corrective action with the

owner or administrator of the facility, prior

to written notification. The agency, instead

of fixing a period within which the facility

shall enter into compliance with standards,

may request a plan of co rrective action from

the facility which demonstrates a good faith

effort to remedy each violation by a specific

date, subject to the approval of the agency.

20. The essence of the allegations that comprise Count I

of the Administrative Complaint is that , during the course of

the facility survey on May 24, 2005, "the admission and

discharge log was not accurate. There were new residents not

listed in the log and discharged residents not properly listed

as discharge[d]." It was also alleged that this was a repeat

deficiency from the survey on November 29, 2004, without

allegation of any specific details of the November 29, 2004,

survey. 3 There is no evidence in this case that "[t]here were

new residents not listed in the log and discharged residents not

properly listed as discharge[d]." Accordingly, the factual

basis for Count I has not been proved and Count I should be

dismissed. 4

21. The essence of the allegations that comprise Count II

of the Administrative Complaint is that, during the course of

the facility survey on May 24, 2005, "the resident's file for

resident #5 lacked semi - annual weight recorded," and the

administrator was unaware of this short - coming in the file of

Resident number 5. It was also alleged that this was a repeat

deficiency from a survey on November 29, 2004, without

allegation of any specific details of the November 29, 2004,

survey. The evidence in this case establishes that semi - annual

weight was recorded in the file of Resident number 5.

Accordingly, the factual basis for C ount II has not been proved

and Count II should be dismissed.

22. The essence of the allegations that comprise Count III

of the Administrative Complaint is that, during the course of

the facility survey on May 24, 2005, "3 of 5 Health Assessments

lacked a date of completion," that "for resident[s] #2, #3, and

#4, the health assessments were not completed," and that the

administrator "was aware that the health assessments were not

completed." It was also alleged that this was a repeat

deficiency from a sur vey on November 29, 2004, without

allegation of any specific details of the November 29, 2004,

survey. The gravamen of the charge in Count III concerns the

status of the health assessment documents for the residents

identified as Residents #2, #3, and #4. There is no evidence

about the status of the health assessment documents for the

residents identified as Residents #2, #3, and #4. Accordingly,

the factual basis for Count III has not been proved and

Count III should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Agency issue a final order dismissing

the instant Administrative Complaint in its entirety.

DONE AND ENTERED this 28th day of February, 2006, in

Tallahassee, Leo n County, Florida.

S

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state. fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of February, 2006.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

St atutes are to the current version of the Florida Statutes.

The relevant portions of the Florida Statutes were the same at

the time of the events in this case as they are now.

2/ The undersigned has accepted these assertions of fact made

in the parties' Joint Prehearing Stipulation as true and

accurate. See Gunn Plumbing, Inc. v. The Dania Bank , 252 So. 2d

1, 4 (Fla. 1971)("A stipulation properly entered into and

relating to a matter upon which it is appropriate to stipulate

is binding upon the parties a nd the Court."); Johnson v.

Johnson , 663 So. 2d 663, 665 (Fla. 2d DCA 1995)("[T]o foster the

legal policy of encouraging stipulations to minimize litigation

and expedite resolution of disputes, the law provides that

'(s)uch stipulations should be enforced if entered into with

good faith and not obtained by fraud, misrepresentation, or

mistake, and not against public policy.'"); EGYB, Inc. v. First

Union National Bank of Florida , 630 So. 2d 1216, 1217 (Fla. 5th

DCA 1994)("Unless grounds for recission or with drawal are shown,

the trial court is bound to strictly enforce the agreement

between the parties."); and Robertson v. Robertson , 106 So. 2d

590, 593 (Fla. 2d DCA 1958)("It is undisputed that a court must

accept as true facts which are undisputed . . . .").

3/ In view of the disposition of Counts I, II, and III on other

grounds, it is not necessary to discuss whether the allegations

regarding repeat deficiencies without mention of specific prior

facts sufficiently puts the Respondent on notice of what must be

defended against.

4/ There was evidence at the hearing to the effect that there

were other deficiencies in the Respondent's A&D log, but those

other deficiencies were not charged in the Administrative

Complaint. Having not been charged, any such oth er deficiencies

cannot be the basis for imposing any penalty on the Respondent.

The record in this case also contains some evidence about other

deficiencies similar to the ones charged in Counts II and III

which were not charged in the Administrative Comp laint. No

uncharged deficiency can be the basis for imposing a penalty on

the Respondent.

COPIES FURNISHED:

Nelson Rodney, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street

Miami, Florida 33166

Richard J. Geisert, Esquire

2423 Hollywood Boulevard, Suite A

Hollywood, Florida 33020

Richard Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Christa Calamas, General Counsel

Agency for Health Care Administrati on

Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Alan Levine, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.