10-000528 Agency For Health Care Administration vs. Avalon's Assisted Living, Llc, D/B/A Avalon's Assisted And D/B/A Avalon's Assisted Living At Avalon Park, And Avalon's Assisted Living Ii, Llc, D/B/A Avalon's Assisted Living At Southmeadow Status: Closed Recommended Order on Friday, January 28, 2011.

Summary: Operation of unlicensed ALF warrants revocation of licenses for other ALFs operated by licensee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case No. 10 - 0528

)

AVALONÓS ASSISTED LIVING, LLC, )

d/b/a AVALONÓS ASSISTED AND )

d/b/a AVALONÓS ASSISTED LIVING )

AT AVALON PARK, AND AVALONÓS )

ASSISTED LIVING II, LLC, d/b/a )

AVALONÓS ASSISTED LIVING AT )

SOUTHMEADOW , )

)

Respondents . )

)

AVALONÓS ASSISTED LIVING, LLC, )

d/b/a AVALONÓS ASSISTED LIVING )

AND d/b/a AVALONÓS ASSISTED )

LIVING AT AVALON PARK, )

)

Petitioner, )

)

vs. ) Case No. 10 - 1672

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

AVALONÓS ASSISTED LIVING II, )

LLC, d/b/a AVALONÓS ASSISTED )

LIVING AT SOUTHWEST, )

)

Petitioner, )

)

vs. ) Case No. 10 - 1673

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 14 - 16, 2010, a hearing in this case was

conducted by videoconference in Tallahassee and Orlando, Florida,

by William F. Quattlebaum, Administrative Law Judge, Division of

A dministrative Hearings (DOAH).

APPEARANCE S

For Agency for Health Care Administration:

Thomas F. Asbury, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive North, Suite 330H

St. Petersburg, Florida 33701

For Avalon's Assisted Living, LLC, and Avalon's Assisted

Living II, LLC:

John E. Terrel, Esquire

Law Offices of John F. Gilroy, III, P.A.

1695 Met ropolitan Circle, Suite 2

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

The issue s in DOAH Case No. 10 - 0528 are whether the

allegations set forth in the Administrative Complaint dated

December 4, 2009 , are correct, and , if so , what penalty should be

imposed.

The issue in DOAH Case No. 10 - 1672 is whether the

application for license renewal filed by Avalon's Assisted Living

LLC, d/b/a Avalon's Assisted Living and d/b/a Avalon's Assisted

Living at Avalon Park (hereinafter Avalon I ) , should be approved.

The issue in DOAH Case No. 10 - 1673 is whether the

application for license renewal filed by Avalon's Assisted Living

II LLC, d/b/a Avalon's Assisted Living at Southwest (hereinafter

Avalon II) , should be approved.

PRELIMINARY STATEMEN T

By an Administrative Complaint dated December 4, 2009, the

Agency for Health Care Administration (hereinafter Agency) sought

to revoke the licenses of Avalon I and Avalon II based on alleged

violations of certain statutes further identified herein. The

licensees disputed the allegations of the Administrative

Complaint, and , on January 25, 2010, the licensees requested a

formal hearing. On February 4, 2010, the Agency forwarded the

request to DOAH , where it was designated as Case No. 10 - 0528,

assigned to the undersigned Administrative Law Judge (ALJ), and

scheduled to be heard June 16 through 18, 2010.

By Notice of Intent to Deny dated February 25, 2010, the

Agency denied the application for license renewal filed by

Avalon I. As grounds for the proposed denial, the Agency

asserted that the "applicant is a licensee with a license under

revocation" and that the "applicant was found to be operating an

unlicensed assisted living facility during a complaint

investigation conducted on August 5, 2009." On March 22, 2010,

Avalon I filed a Petition for Formal Administrative Proceeding.

On March 26, 2010, the Agency forwarded the p etition to DOAH ,

where it was designated Case No. 10 - 1672.

By a separate Notice of Intent to Deny dated February 25,

2010, the Agency d enied the application for license renewal filed

by Avalon II, again o n the basis that the "applicant is a

licensee with a license under revocation" and that the "applicant

was found to be operating an unlicensed assisted living facility

during a complaint investigation conducted on August 5, 2009."

On March 22, 2010, Avalon II filed a Petition for Formal

Administrative Proceeding. On March 26, 2010, the Agency

forwarded the p etition to DOAH , where it was assigned Case

No. 10 - 1673.

DOAH Case No s . 10 - 1672 a nd 10 - 1673 were assigned to a second

ALJ and scheduled for hearing on June 11, 2010. On May 28, 2010,

the Agency moved to continue the June 11 , 2010, hearing and to

consolidate DOAH Case No s . 10 - 1672 and 10 - 1673 with DOAH Case

No. 10 - 0528. The second ALJ granted the continuance, and the two

cases were thereafter transferred to the undersigned ALJ who

consolidated the three cases.

A separate case (DOAH Case No. 09 - 6342) involves a challenge

by the allegedly unlicensed facility (hereinafter Avalon III) to

the Agency's denial of the initial licensure application filed by

Avalon III. The dispute was referred to DOAH on November 17,

2009, designed as DOAH Case No. 0 9 - 6342, and assigned to a third

ALJ. On February 15, 2010, the Agency moved to consolidate DOAH

Case No. 09 - 6342 with the instant cases, but the m otion was

opposed by Avalon , and the ALJ to whom the case was assigned

decl ined to consolidate the cases.

At the hearing, the Agency presented the testimony of

15 witnesses and had Exhibits 3 through 13, 15 , 16, 21, 36, 38 ,

39, and 52 admitted into evidence. Avalon I and Avalon II

presented the testimony of four witnesses and had Exhibits 1, 5,

7 through 10, 12, 16, and 23 through 26 admitted into evidence.

The five - volume T ranscript of the hearing was filed on

November 12, 2010. Proposed Recommended Orders were filed on

December 6 and 7, 2010.

FINDINGS OF FACT

1. Avalon I is a six - bed assisted living facility ( ALF ),

operating at 1250 Willow Branch Drive, Orlando, Florida, 32828,

and holding license number 10813 with Limit ed Nursing Services

licensure.

2. Avalon II is a six - bed ALF operating at 13230 Early

Frost Circle, Orlando, Florida, 32828, and holding lice nse number

11318 with Limited Nursing Serv ices licensure.

3. Avalon I and Avalon II are operated by a limited

liability company owned by Chiqquittia Carter - Walker and Robert

Walker. Mrs. Carter - Walker acts as the a d ministrator of the

facilities.

4. On J uly 23, 2009, the Agency conducted an inspection of

Avalon I and determined that there were three "Class II"

deficiencies, commonly cited as "tags" in reference to ap plicable

regulatory standards.

5. Tag A029 alleged that the training certifications,

cont ained within the facility's personnel files to document the

provision of required employee education, were false and that the

t raining had not been provided.

6. The training certificates for one Avalon I staff member

were not accurate and falsely indicate d that the referenced

employee received training that had not been provided. The

falsification was del iberate and was not erroneous.

7. The inaccurate documentation of employee training

misstated the qualifications of the ALF staff, falsely indicated

tha t the staff was adequately trained, and presented the

potential for harm to the health of the residents. The Agency

correctly identifi ed the deficiency as Class II.

8. Tag A427 was based on regulatory provisions that

permitted a terminally ill resident , no longer meeting the

criteria for continued ALF residency, to remain in the ALF under

certain conditions. The July 23 , 2009, inspection indicated that

such a resident continued to reside at Avalon I without

compli ance with relevant conditions.

9. The c onditions under which the terminally ill resident

was permitted to remain at the ALF required that the hospice

coordinate the care and provision of additional medical services

and that an interdisciplinary care plan be developed and

implemented by the hosp ice in coordination with the ALF.

10. The July 23 , 2009, inspection revealed that the

interdisciplinary care plan failed to adequately designate

responsibility for the various kinds of care required by the

resident.

11. The inspection revealed that a ter minally ill resident

remained in Avalon I without receiving appropriate medication for

pain management even though such me dications had been authorized.

12. Although the ALF had undertaken the responsibility of

administering the pain medication, there wer e occasions when no

Avalon I staff member authorized to administer the pain

medication was present at the ALF. Patient records indicated

that the hospice representative attempted at several junctures to

contact Mrs. Carter - Walker by telephone to resolve t he problem

and that Mrs. Carter - Walker was not accessible to the hospice

representati ve.

13. The resident unnecessarily suffered pain because the

issue was not resolved in a timely manner. The failure to

provide a terminally ill resident with appropriate pain

medication resulted in a direct threat to the physical and

emotional health of the resident, and , therefore , the Agency

correctly identifi ed the deficiency as Class II.

14. Tag A700 reflects standards for resident care and

requires that appropriate services be provided to residents. The

July 23 , 2009, inspection indicated that one resident was not

being provided a nutritional supplement and that two residents

were not being provided appropriate pain - relieving medications.

15. As to the provision of nutritional supplementation, one

resident with a history of weight loss had been prescribed a

daily can of "Ensure" nutritional supplement. According to the

facility records, the supplement had not been acquired by the ALF

and had not been provided to the resident.

16. As to the residents who were not receiving proper pain

medication, one of the two was the terminally ill resident

referenced in relation to Tag A427. As stated previously , the

resident unnecessarily suffered pain because medication was not

appropriately administered, which resulted in a direct threat to

the health of the resident. Therefore, the Agency also correctly

identified the deficiency cited as Tag A700 as Class II.

17. The second resident had a history of hypertension and

hypothyroid issues and had been prescribed a daily Ibuprofen

(400mg) for pain. The Avalon I medication records indicated

that , on some days, the medication had been provided twice daily

to the pa tien t, and , on other days, it had not been provided at

all.

18. The evidence establishes that the deficiencies

identified in Tags A427 and A700 indicate a failure of the ALF to

provide appropriate care and service to the residents of the

facility.

19. According to the uncontroverted testimony of Agency

investigators as documented by the reports of their inspections,

numerous lesser deficiencies were identified at Avalon I between

2007 and 2009, constituting a continuing pattern of inadequate

perfor mance and a failure to meet relevant standards.

20. On August 5, 2009, an inspection conducted by the

Agency at 1812 Crown Hill Boulevard, Orlando, Florida, 32828 ,

indicated that an unlicensed ALF was operating at that address.

21. On August 5, 2009, t he Agency's investigator observed

five individual residents in Avalon III. The investigator

reviewed hea l th assessments for the residents, all of whom

required assistance with activities of daily living, including

personal h ygiene, ambulation, and meals.

22. Medications for the residents were stored in a central

area. The investigator reviewed medication observation records ,

indicating that the residents self - administered medications with

observation by the Avalon III staff.

23. Signage was present at Avalon III that identified

Mrs. Carter - Walker as the a dministrat or of the Avalon III

facility.

24. During the August 5 , 2009, inspection, Mrs. Carter -

Walker arrived at Avalon III and identified herself as the

a dministrator of the facility. The investiga tor was familiar

with Mrs. Carter - Walker and knew her as the a dministrat or for

Avalon I and Avalon II.

25. Mrs. Carter - Walker identified herself as the Avalon III

a dministrator to other care providers, including a clinical

social worker, a registered nurse providing contract health care

services to facility residents, and Admin istrators at other local

ALFs.

26. According to the testimony of an employee of

Avalon III, there had been residents in the Avalon III location

since at least June 16, 2009, at which time the staff member

began to work at the facility. She worked five days per week,

providing the resident services identified herein. During that

time, there were always at least three residents in the facility.

The same residents were present on a day - to - day basis. There is

no evidence that such residents were transported out of the

facility during the evening or that they did not otherwise remain

at the Avalon III location overnight.

27. A licensed practical nurse present at the Avalon III

loc ation on August 5, 2009, was the person who permitted the

Agency's investigator to enter into the facility. The nurse was

at the location to provide personal care assistance to a

terminally ill resident receiving care through an agreement

between the Mrs. Carter - Walker, as the facility a dministrator,

and the hospice. After Mrs. Carter - Walker arrived at the

Avalon III location, she was apparently unhappy that the nurse

had permitted the investigator to enter the facility, and

directed the nurse to leave im mediately without providing furth er

assistance to the resident.

28. On the day of the investigation, the Agency

investigator issued a "Notice of Unlicensed Activity/Order to

Cease and Desist" to Robert Walker and Chiqquittia Carter - Walker

for the Avalon I II operation. Mr. Walker arrived during the

inspection and identified himself as an own er to the Agency

investigator.

29. On August 14, 2009, the Agency received an application

for licensure of an ALF at 1812 Crown Hill Boulevard, Orlando,

Florida, 32828 . The application, submitted by Robert Walker as

the a dministrator, referenced the Avalon I and Avalon II as

affiliated with Avalon III through ownership.

30. Both Mr. Walker and Mrs. Carter - Walker submitted

affidavits of compliance with background scree ning requirements

as part of the Avalon III application.

31. At no time was Avalon III licensed as an ALF. There

was no evidence that the Avalon III residents were related to

Mrs. Carter - Walker or her husband.

32. There was no evidence that Avalon III w as exempt from,

or otherwise not required to comply with, rele vant ALF licensing

requirements.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla . Sta t. (2010).

34. The Agency for Health Care Administration is

responsible for licensure and regulation of ALFs in Florida. See

c hapters 408 and 429, Fla . Stat . (2010).

35. Section 429.02, Florida Statutes (2009) , 1/ sets forth

the following applicable definitions:

429.02 Definitions. -- When used in this part,

the term:

(2) "Administrator" means an individual at

least 21 years of age who is responsible for

the operation and maintenance of an assisted

living facility.

* * *

(5) "Assisted living facility" means any

building or buildings, section or distinct

part of a building, private home, boarding

home, home for the aged, or other residential

facility, whether operated for profit or not,

which undertakes through its o wnership or

management to provide housing, meals, and one

or more personal services for a period

exceeding 24 hours to one or more adults who

are not relatives of the owner or

administrator.

* * *

(16) "Personal services" means direct

physical a ssistance with or supervision of

the activities of daily living and the self -

administration of medication and other

similar services which the department may

define by rule. "Personal services" shall

not be construed to mean the provision of

medical, nurs ing, dental, or mental health

services.

36. Section 429.04 requires that, with certain specified

exemptions, Florida ALFs must be licensed. There was no evidence

that any of the ALFs relevant to this proceeding were exemp t from

licensure requirements.

37. Section 429.14 provides , in relevant part , as follows:

429.14 Administrative penalties. --

(1) In addition to the requirements of part

II of chapter 408, the agency may deny,

revoke, and suspend any license issued under

this part and impose an admin istrative fine

in the manner provided in chapter 120 against

a licensee of an assisted living facility for

a violation of any provision of this part,

part II of chapter 408 , or applicable rules,

or for any of the following actions by a

licensee of an assis ted living facility, for

the actions of any person subject to level 2

background screening under s. 408.809, or for

the actions of any facility employee:

(e) A citation of any of the following

deficiencies as specified in s. 429.19:

2. Three or more ci ted class II

deficiencies.

* * *

(k) Knowingly operating any unlicensed

facility or providing without a license any

service that must be licensed under this

chapter or chapter 400. (Emphasis supplied)

38. Section 429.19 provides , in relevant part , as follows:

429.19 Violations; imposition of

administrative fines; grounds. --

(1) In addition to the requirements of part

II of chapter 408, the agency shall impose an

administrative fine in the manner provided in

chapter 120 for the violation of any

provision of this part, part II of chapter

408, and applicable rules by an assisted

living facility, for the actions of any

person subject to level 2 background

screening under s. 408.809, for the actions

of any facility employee, or for a n

intentional or negligent act seriously

affecting the health, safety, or welfare of a

resident 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 probabl e effect on facility residents.

The agency shall indicate the classification

on the written notice of the violation as

follows:

* * *

(b) Class "II" violations are defined in s.

408.813. The agency shall impose an

administrative fine for a cited class II

violation in an amount not less than $1,000

and not exceeding $5,000 for each violation.

39. Section 408.812, Florida Statutes, set forth within

Part II of c hapter 408, provides , in rel evant part , as follows:

408.812 Unlicensed activity. --

(1) A person or entity may not offer or

advertise services that require licensure as

defined by this part, authorizing statutes,

or applicable rules to the public without

obtaining a valid license f rom the agency. A

licenseholder may not advertise or hold out

to the public that he or she holds a license

for other than that for which he or she

actually holds the license.

(2) The operation or maintenance of an

unlicensed provider or the performance of any

services that require licensure without

proper licensure is a violation of this part

and authorizing statutes. Unlicensed

activity constitutes harm that materially

affects the health, safety, and welfare of

clients. The agency or any state attorney

may, in addition to other remedies provided

in this part, bring an action for an

injunction to restrain such violation, or to

enjoin the future operation or maintenance of

the unlicensed provider or the performance of

any services in violation of this part and

authorizing statutes, until compliance with

this part, authorizing statutes, and agency

rules has been demonstrated to the

satisfaction of the agency.

(3) It is unlawful for any person or entity

to own, operate, or maintain an unlicensed

pr ovider. If after receiving notification

from the agency, such person or entity fails

to cease operation and apply for a license

under this part and authorizing statutes, the

person or entity shall be subject to

penalties as prescribed by authorizing

statu tes and applicable rules. Each day of

continued operation is a separate offense.

(4) Any person or entity that fails to cease

operation after agency notification may be

fined $1,000 for each day of noncompliance.

(5) When a controlling interest or lice nsee

has an interest in more than one provider and

fails to license a provider rendering

services that require licensure, the agency

may revoke all licenses and impose actions

under s. 408.814 and a fine of $1,000 per

day, unless otherwise specified by

aut horizing statutes, against each licensee

until such time as the appropriate license is

obtained for the unlicensed operation.

(6) In addition to granting injunctive

relief pursuant to subsection (2), if the

agency determines that a person or entity is

op erating or maintaining a provider without

obtaining a license and determines that a

condition exists that poses a threat to the

health, safety, or welfare of a client of the

provider, the person or entity is subject to

the same actions and fines imposed ag ainst a

licensee as specified in this part,

authorizing statutes, and agency rules.

(7) Any person aware of the operation of an

unlicensed provider must report that provider

to the agency. (Emphasis supplied)

40. Section 408.813(2)(b) provides the fol lowing relevant

definition:

Class "II" violations are those conditions or

occurrences related to the operation and

maintenance of a provider or to the care of

clients which the agency determines directly

threaten the physical or emotional health,

safety, o r security of the clients, other

than class I violations. The agency shall

impose an administrative fine as provided by

law for a cited class II violation. A fine

shall be levied notwithstanding the

correction of the violation.

41. Section 408.815 provides , in relevant part , as follows:

408.815 License or application denial;

revocation. --

(1) In addition to the grounds provided in

authorizing statutes, grounds that may be

used by the agency for denying and revoking a

license or change of ownershi p application

include any of the following actions by a

controlling interest :

(a) False representation of a material fact

in the license application or omission of any

material fact from the application.

(b) An intentional or negligent act

materially a ffecting the health or safety of

a client of the provider.

(c) A violation of this part, authorizing

statutes, or applicable rules.

(d) A demonstrated pattern of deficient

performance. (Emphasis supplied)

42. In these cases, the Agency has the burde n of proving,

by clear and convincing evidence, the allegations set forth

against Avalon I and Avalon II in the Administrative Complaint.

The Agency also has the burden of establishing that sufficient

cause is present to deny the license renewal applicati ons filed

by Avalon I and Avalon II. Dep ' t of Banking & Fin . v. Osborne

Stern and Co ., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987); Coke v. Dep ' t of Child . & Fam .

Servs . , 704 So. 2d 726 (5th DCA 1998).

43. The Agency has met the burden. The evidence

establishes that the violations identified during the July 23,

2009 , inspection of Avalon I posed a direct threat to the

physical and emot ional health of the residents.

44. The falsification of employee training documentation

(cited as Tag A029) deliberately misrepresented the level of

information and skill possessed by a staff member. The failure

to provide appropriate medication to a terminally ill resident

(cited as Tags A427 and A700) resulted in unnecessary pain. The

de ficiencies constituted a direct threat to the physical and

emotional health of residents and were properly design ated as

Class II deficiencies.

45. Numerous additional deficiencies, albeit not as severe

as those specifically addressed herein, indicated a general

failure to meet relevant licensing standards and regulatory

criterion. However, even absent the additional deficiencies,

revocation of licensure is an appropriate penalty pursuant to

s ection 429.14(1)(e)2.

46. Additionally, the evidence establish es that the Walkers

operated an unlicensed ALF, Avalon III. Presumably, since they

were already operating Avalon I and Avalon II, they were aware

that a license was required to operate an ALF. The failure to

apply for licensure prior to operating Avalon III demonstrates a

flagrant disrega rd for licensing requirements.

47. The requirement that an ALF obtain a license to

operate is not simply a ritual of red tape. As stated in

s ection 420.01(2) , Florida Statutes , the purpose for licensure

and regulation o f ALFs in Florida is, in part, to "provide for

the health, safety, and welfare of residents of assisted living

facilities in the state." Section 420.01(3) states as follows:

The principle that a license issued under

this part is a public trust and a privi lege

and is not an entitlement should guide the

finder of fact or trier of law at any

administrative proceeding or in a court

action initiated by the Agency for Health

Care Admin istration to enforce this part.

48. Accordingly, the following recommendatio n is set forth.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Administration issue a f inal o rder revoking the licenses of

Avalon I and Avalon II, denying the applications for license

renewal filed by Avalon I and Avalon II, and assessing an

administrative fine in the amount of $3,000 for the specific

Class II d eficiencies identified herein.

DONE AND ENTERED this 2 8 th day of January , 2011 , in

Tallahassee, Leon County, Florid a.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state. fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 8 th day of January , 2011 .

ENDNOTE

1/ All references sections and chapters are to Florida Statutes

(2009), unless otherwise stated.

COPIES FURNISHED:

Thomas F. Asbury, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive North, Suite 330H

St. Petersburg, Florida 33701

John E. Terrel, Esquire

Law Offices of John F. Gilroy, III, P.A.

1695 Metropolitan Circle, Suite 2

Tallahassee, Florida 32308

Elizabeth Dudek, Interim Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Justin Senior, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richar d J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

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 Re commended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.