10-000023 Agency For Health Care Administration vs. Visiting Nurse Association Of Florida, Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, February 1, 2010.

F11 D

AHCA

STATE OF FLORIDA AGBCY CLERK

AGENCY FOR HEALTH CARE ADMINISTRATION 2010 MAR 2 P

4 3 2 3

VISION ASSOCIATES INC d b a

BAY GARDENS RETIREMENT VILLAGE

Petitioner DOAH No 09 5443

AHCA No 2009008636

vs

STATE OF FLORIDA AGENCY FOR

HEALTH CARE ADMINISTRATION

Respondent

FINAL ORDER

Having reviewed the Notice of Intent to Deny dated July 31 2009 attached hereto and

incorporated herein Comp Ex 1 and all other matters of record the Agency for Health Care

Administration hereinafter Agency finds and concludes as follows

FINDINGS OF FACT

1 The Agency issued one 1 Notice of Intent to Deny the renewal application of

Petitioner Vision Associates Inc d b a Bay Gardens Retirement Village hereinafter

Petitioner or Facility an assisted living facility License No 7216

2 The Notice of Intent to Deny the renewal application dated 07 31 09 notified the

Facility that the Agency intended to deny the Facility s renewal application based upon inter

alia a demonstrated pattern of deficient performance and failure to meet minimum license

requirements pursuant to Sections 408 815 1 d and 429 14 Florida Statutes

3 The Facility received a Notice of Intent to Deny its license renewal application

By filing its Election of Rights hereafter EOR and electing Option 3 the Facility requested a

formal hearing Comp Ex 2

4 The cause was properly referred to the Division of Administrative Hearings for

proceedings according to law See Section 120 57 1 Florida Statutes 2009

5 By Order dated February 26 2010 the Division of Administrative Hearings

determined that no material issue of fact remained in dispute and relinquished jurisdiction to the

Agency for Health Care Administration a copy of which is attached hereto and incorporated

herein Ex 3

6 The facts as alleged and found establish that the Facility a Has demonstrated a

pattern of deficient performance b Has been cited for one 1 or more cited Class I

deficiencies three 3 or more cited Class II deficiencies and or five 5 or more cited class III

deficiencies on a single survey which were not corrected within the times specified c Failed to

meet the minimum license requirements of Chapter 429 Part I or related rules at the time of

license renewal and d Has been found guilty of at least one 1 act constituting a ground upon

which application for a license may be denied

7 The Agency action was the denial of the Facility s license renewal application

CONCLUSIONS OF LAW

1 The Petitioner is an assisted living facility over which the Agency has jurisdiction

pursuant to the provisions of Chapters 42 20 60 120 408 Part II and 429 Part I Florida

Statutes 2009 and Chapter 58A 5 Florida Administrative Code

2 The Petitioner s license renewal application as an assisted living facility may be

denied for a A demonstrated pattern of deficient performance as an assisted living facility b

Having been cited for one 1 or more cited Class I deficiencies three 3 or more cited Class II

deficiencies or and five 5 or more cited class III deficiencies on a single survey that were not

corrected within the times specified c Failure to meet the minimum license requirements of

Chapter 429 Part I or related rules at the time of license renewal and d Having been found

guilty of at least one 1 act constituting a ground upon which application for a license may be

denied Sections d 1 815 408 and e 429 14 1 l i 1 Florida Statutes 2009

Based on the foregoing findings of fact and conclusions of law it is

ORDERED

1 The Petitioner s license renewal application as an assisted living facility License

No 7216 be and the same is hereby DENIED

2 The denial of the Petitioner s license application is STAYED for 30 days from the

filing date of this Final Order to allow for the safe and orderly discharge of the clients e i

residents and the protection of their rights The Agency retains the right to extend modify or

vacate this temporary stay 2 If the Petitioner lawfully continues to operate while a denial or

revocation is pending in litigation the Petitioner must continue to meet all other requirements of

Chapter 408 Part II the authorizing statutes and the applicable rules and must file subsequent

renewal applications for licensure and pay all licensure fees 408 815 2 Fla Stat 2009

This granting of this temporary stay does not affect the s Petitioner right to seek a modification

of this stay from the Agency or right to seek appellate review and relief The safeguards set forth

below are imposed as a condition of the stay

See 120 68 3 Fla Stat 2009 the Agency may also grant a stay upon appropriate terms Fla R App P

9 190 e 2 A The lower tribunal or court may grant a stay upon appropriate terms 9 310 a A Mariner stay pending Health

review may be conditioned on the posting of a good and sufficient bond other conditions or both

Care of Nashville Inc v Baker 739 So 2d 608 609 Fla 1st DCA 1999 By the terms of this rule the lower

tribunal has discretion to set the conditions under which the proceedings may be stayed pending appellate review

It follows that an order establishing the conditions necessary to obtain a stay is subject to review by the abuse of

discretion standard MSQ Properties v Fla Dept of Health and Rehab Servs 626 So 2d 292 293 Fla 1st DCA

1993 The lower tribunal is in a superior position to determine whether a bond or other conditions should These be

required before an order is stayed and if so the amount of the bond or the nature of the conditions

determinations may require fact finding which is not a function of this court

2 See Fla R App P 310 9 On motion the lower tribunal or the court may extend a stay impose any lawful

conditions or vacate the stay

rr

a Notice to Clients and Contacts The Petitioner shall promptly provide notice to

its clients and their next of kin legal representative or agency acting on each client s

behalf that the Agency has entered this Final Order revoking the Petitioner s license

408 804 Fla Stat 2009

b Names of Clients and Contacts The Petitioner shall promptly inform the

Agency of its current census including the names and telephone numbers of the clients

and their next of kin legal representative or agency acting on each client s behalf so that

the Agency may monitor their discharge 429 3 1 Fla Stat 2009

c Plan of Discharge Within two calendar days of the receipt of this Final Order

the Petitioner shall file a written plan of discharge with the Agency s local field office

and the Agency s licensure unit The plan of discharge shall set forth the Petitioner s

capabilities and intentions to carry out the safe and orderly discharge of clients The plan

of discharge shall also comply with 1 the regulations of the Petitioner s licensure 2

the Petitioner s policies and procedures and 3 the clients medical orders placing

primary importance on the health safety and welfare of the clients If the Petitioner is

unable or uncertain of the ability to carry out the safe and orderly discharge of the clients

the Petitioner shall state that belief in the plan of discharge and inform the Agency that it

needs assistance 429 3 1 Fla Stat 2009

d Status Reports The Petitioner shall report to the Agency s local field office the

status of the client discharge every two days Among other information the status report

shall include the current census of the facility the names of the remaining clients and the

names and discharge location of the transferred clients Once all of the clients are safely

discharged the Petitioner shall inform the Agency s local field office that the client

discharge has been completed Upon the discharge of the final client this stay is

immediately lifted without further notice 429 3 1 Fla Stat 2009

e Facility Cooperation During Monitoring Visits and Inspections The Agency

and other state personnel have the right to monitor and inspect the Petitioner s facility

during the stay to determine compliance with the statutes and rules 408 811 1

429 31 429 34 Fla Stat 2009 During these monitoring visits and inspections the

Petitioner shall cooperate with Agency and other lawfully authorized personnel

1 408 811 34 429 Fla Stat 2009 The Agency shall have access to and the licensee

shall provide or if requested send copies of all provider records required during an

inspection or other review at no cost to the Agency including records requested during

an offsite review 408 811 3 Fla Stat 2009

f No Admissions The Petitioner s license application has been denied This stay

has been entered in order to allow for the safe and orderly discharge of clients It is

unlawful to provide services that require licensure or operate or maintain a provider that

offers or provides services that require licensure without first obtaining from the agency

a license authorizing the provision of such services or the operation or maintenance of

such provider 408 804 1 Fla Stat 2009 Unlicensed activity constitutes harm that

materially affects the health safety and welfare of clients 408 812 2 Fla Stat

n

2009 A provider or licensee the license of which is denied or revoked may be subject

to immediate imposition of a moratorium or emergency suspension to run concurrently

with licensure denial revocation or injunction 408 814 2 Fla Stat 2009 Thus

unless modified the Petitioner shall not admit any new clients and shall not readmit any

former clients

3 In accordance with Florida and federal law the Petitioner is responsible for

retaining and appropriately distributing all client records within the timeframes prescribed in

authorizing statutes and applicable rules The Petitioner is advised of Section 408 810 Florida

Statutes 2009 set forth below

4 In accordance with Florida law the Petitioner is responsible for any refunds that

may have to be made to the clients The Petitioner is advised of Sections 24 429 and 429 3 1

Florida Statutes 2009 set forth below

5 This matter is closed The closure of this case does not alleviate the Petitioner

from complying with the applicable statutes and rules governing its licensure The closure of

this case does not prohibit the Agency from extending modifying or vacating the stay or from

taking any other regulatory action as pe w

DONE and ORDERED this yaiLC 4 n Tallahassee Leon County

Florida

Thomas W Aold Secretary

Agency for H lth Care Administration

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO

JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A

NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA AND A SECOND COPY

ALONG WITH FILING FEE AS PRESCRIBED BY LAW WITH THE DISTRICT COURT

OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS

HEADQUARTERS OR WHERE A PARTY RESIDES REVIEW OF PROCEEDINGS

SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES

THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED

Copies furnished to

Stephen V Iglesias Esq Patricia Caufman Field Office Manager

One Urban Centre Kathy Varga Supervisor

4830 West Kennedy Blvd Suite 575 Agency for Health Care Administration

Tampa FL 33609 525 Mirror Lake Drive North Fourth Floor

Counsel for Petitioner St Petersburg Florida 33701

U S Mail Interoffice Mail

Jan Mills Molly McKinstry Bureau Chief

Facilities Intake Unit Bureau of Long Term Care Services

Agency for Health Care Admin Agency for Health Care Administration

Interoffice Mail Interoffice Mail

Katrina Derico Harris Bernard Hudson Unit Manager

Medicaid Accounts Receivable Assisted Living Unit

Agency for Health Care Administration Agency for Health Care Administration

Interoffice Mail Interoffice Mail

Shawn McCauley Polly Weaver Bureau Chief

Medicaid Contract Management Bureau of Field Operations

Agency for Health Care Administration Agency for Health Care Administration

Interoffice Mail Interoffice Mail

Division of Administrative Hearings Thomas F Asbury Senior Attorney

The DeSoto Building Office of the General Counsel

1230 Apalachee Parkway Agency for Health Care Administration

Tallahassee Florida 32399 Interoffice Mail

Electronic Mail

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the

above named persons and entities by U S Mail or the method designated on this the day of

c c4 2010

Richard Shoop Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive Mail Stop 3

Tallahassee Florida 32308 5403

850 3630 412