10-002462 Agency For Health Care Administration vs. Novlette Whyte Miller Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, July 15, 2010.

F

STATE OF FLORIDA AGE N CY A C CLERK A

AGENCY FOR HEALTH CARE ADMINISTRATION

NO AUG 2b P 12 5b

STATE OF FLORIDA AGENCY FOR

HEALTH CARE ADMINISTRATION

Petitioner

V

AHCA No 2 009007809

NOVLETTE WHYTE MILLER DOAH No 10 2462

Respondent AHCA No 2010004824

AHCA No 2010004825

STATE OF FLORIDA AGENCY FOR

HEALTH CARE ADMINISTRATION

Petitioner

V AHCA No 2010005437

FRIENDS ASSISTED LIVING INC

Respondent

FINAL ORDER

Having reviewed the administrative complaints against Respondent

Novlette Whyte Miller dated March 26 2010 AHCA No 2009007809 DOAH

No 10 2462 Exhibit 1 dated June 7 2010 AHCA No 2010004824

Exhibit 2 and dated June 17 2010 AHCA No 2010004825 Exhibit 3

and the administrative complaint against Respondent Friends Assisted

Living Inc dated June 14 2010 AHCA No 2010005437 Exhibit 4 which

are attached and incorporated by reference and all other matters of record

the Agency for Health Care Administration the Agency having entered

into a Settlement Agreement Exhibit 5 with the parties to these

proceedings and being otherwise well advised in the premises it is

ORDERED

1 The attached Settlement Agreement is approved and adopted as

part of this Final Order and the parties are directed to comply with the

terms of the Settlement Agreement

2 An administrative fine of 27 000 00 is imposed upon the

Respondent Novlette Whyte Miller and the Agency s Facilities Intake Unit

shall maintain an alert on Respondent Miller s file The collection of the

administrative fine however is STAYED and the Agency shall not collect the

administrative fine Should Respondent Miller or any entity in which she is a

principal or controlling interest apply to the Agency for licensure in the

future the administrative fine will be immediately due and payable In

addition should Respondent Miller be determined by a final order to be

operating an unlicensed assisted living facility the administrative fine shall

will be immediately due and payable

3 The assisted living facility license of Friends Assisted Living Inc

License No 10400 is REVOKED The Respondent ALF shall promptly

discharge the residents in a safe and orderly manner with all due regard to

the health safety and welfare of the residents

4 In accordance with Florida and federal law the Respondent ALF

is responsible for retaining and appropriately distributing all client records

within the timeframes prescribed in authorizing statutes and applicable

rules The Respondent ALF is advised of Section 408 810 Florida Statutes

2009 set forth below

5 In accordance with Florida law the Respondent ALF is

responsible for any refunds that may have to be made to the clients The

Respondent ALF is advised of Sections 429 24 and 429 31 Florida Statutes

2009 set forth below

6 Each party shall bear its own costs and attorney s fees

7 The above styled cases are hereby closed

DONE and ORDERED this A 57 day of 2010

in Tallahassee Leon County Florida

Thomas W A nold Secretary

Agency for He 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

3 Garry Rooney Esq Alba M Rodriguez Esq

Brooker Rooney P A Assistant General Counsel

Attorney for Respondent Agency for Health Care Admin

2145 14th Avenue Suite 20 Interoffice Mail

Vero Beach Florida 32960

U S Mail

Finance Accounting June C McKinney

Agency for Health Care Admin Administrative Law Judge

2727 Mahan Drive MS 14 Division of Administrative Hearings

Tallahassee Florida 32308 Electronic Mail

Interoffice Mail

Jan Mills Shaddrick Haston Unit Manager

Facilities Intake Unit Assisted Living Unit

Agency for Health Care Admin Agency for Health Care Admin

Interoffice Mail Interoffice Mail

Katrina Derico Harris Shawn McCauley

Medicaid Accounts Receivable Medicaid Contract Management

Agency for Health Care Agency for Health Care

Administration Administration

Interoffice Mail Interoffice Mail

CERTIFICATE OF SERVICE

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

served on the above named person s and entities by U S Mail or the

method designated on this the 26 day of 2010

Richard J Shoop Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive Building 3

Tallahassee Florida 32308

850 3630 412

NOTICE OF FLORIDA LAW

408 804 License required display

1 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

2 A license must be displayed in a conspicuous place readily visible to

clients who enter at the address that appears on the license and is valid only

in the hands of the licensee to whom it is issued and may not be sold

assigned or otherwise transferred voluntarily or involuntarily The license

is valid only for the licensee provider and location for which the license is

issued

408 811 Right of inspection copies inspection reports plan for

correction of deficiencies

1 An authorized officer or employee of the agency may make or cause to

be made any inspection or investigation deemed necessary by the agency to

determine the state of compliance with this part authorizing statutes and

applicable rules The right of inspection extends to any business that the

agency has reason to believe is being operated as a provider without a

license but inspection of any business suspected of being operated without

the appropriate license may not be made without the permission of the

owner or person in charge unless a warrant is first obtained from a circuit

court Any application for a license issued under this part authorizing

statutes or applicable rules constitutes permission for an appropriate

inspection to verify the information submitted on or in connection with the

application

a All inspections shall be unannounced except as specified in s 408 806

b Inspections for relicensure shall be conducted biennially unless

otherwise specified by authorizing statutes or applicable rules

2 Inspections conducted in conjunction with certification comparable

licensure requirements or a recognized or approved accreditation

organization may be accepted in lieu of a complete licensure inspection

However a licensure inspection may also be conducted to review any

licensure requirements that are not also requirements for certification

3 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

4 A deficiency must be corrected within 30 calendar days after the

provider is notified of inspection results unless an alternative timeframe is

required or approved by the Agency

5 The Agency may require an applicant or licensee to submit a plan of

correction for deficiencies If required the plan of correction must be filed

with the Agency within 10 calendar days after notification unless an

alternative timeframe is required

6 a Each licensee shall maintain as public information available upon

request records of all inspection reports pertaining to that provider that

have been filed by the agency unless those reports are exempt from or

contain information that is exempt from s 07 119 1 and s 24 a Art I of

the State Constitution or is otherwise made confidential by law Effective

October 1 2006 copies of such reports shall be retained in the records of

the provider for at least 3 years following the date the reports are filed and

issued regardless of a change of ownership

b A licensee shall upon the request of any person who has completed a

written application with intent to be admitted by such provider any person

who is a client of such provider or any relative spouse or guardian of any

such person furnish to the requester a copy of the last inspection report

pertaining to the licensed provider that was issued by the agency or by an

accrediting organization if such report is used in lieu of a licensure

inspection

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 from 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 provider 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 statutes 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 licensee 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

authorizing 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 operating 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 against 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

408 810 Minimum licensure requirements In addition to the licensure

requirements specified in this part authorizing statutes and applicable

rules each applicant and licensee must comply with the requirements of this

section in order to obtain and maintain a license

4 Whenever a licensee discontinues operation of a provider

a The licensee must inform the agency not less than 30 days prior to the

discontinuance of operation and inform clients of such discontinuance as

required by authorizing statutes Immediately upon discontinuance of

operation by a provider the licensee shall surrender the license to the

agency and the license shall be canceled

b The licensee shall remain responsible for retaining and appropriately

distributing all records within the timeframes prescribed in authorizing

statutes and applicable rules In addition the licensee or in the event of

death or dissolution of a licensee the estate or agent of the licensee shall

1 Make arrangements to forward records for each client to one of the

following based upon the client s choice the client or the client s legal

representative the client s attending physician or the health care provider

where the client currently receives services or

2 Cause a notice to be published in the newspaper of greatest general

circulation in the county in which the provider was located that advises

clients of the discontinuance of the provider operation The notice must

inform clients that they may obtain copies of their records and specify the

name address and telephone number of the person from whom the copies

of records may be obtained The notice must appear at least once a week

for 4 consecutive weeks

429 24 Contracts

3 a The contract shall include a refund policy to be implemented at the

time of a resident s transfer discharge or death The refund policy shall

provide that the resident or responsible party is entitled to a prorated refund

based on the daily rate for any unused portion of payment beyond the

termination date after all charges including the cost of damages to the

residential unit resulting from circumstances other than normal use have

been paid to the licensee For the purpose of this paragraph the

termination date shall be the date the unit is vacated by the resident and

cleared of all personal belongings If the amount of belongings does not

preclude renting the unit the facility may clear the unit and charge the

resident or his or her estate for moving and storing the items at a rate equal

to the actual cost to the facility not to exceed 20 percent of the regular rate

for the unit provided that 14 days advance written notification is given If

the resident s possessions are not claimed within 45 days after notification

the facility may dispose of them The contract shall also specify any other

conditions under which claims will be made against the refund due the

resident Except in the case of death or a discharge due to medical reasons

the refunds shall be computed in accordance with the notice of relocation

requirements specified in the contract However a resident may not be

required to provide the licensee with more than 30 days notice of

termination If after a contract is terminated the facility intends to make a

claim against a refund due the resident the facility shall notify the resident

or responsible party in writing of the claim and shall provide said party with

a reasonable time period of no less than 14 calendar days to respond The

facility shall provide a refund to the resident or responsible party within 45

days after the transfer discharge or death of the resident The Agency

shall impose a fine upon a facility that fails to comply with the refund

provisions of the paragraph which fine shall be equal to three times the

amount due to the resident One half of the fine shall be remitted to the

resident or his or her estate and the other half to the Health Care Trust

Fund to be used for the purpose specified in s 429 18

429 31 Closing of facility notice penalty

1 In addition to the requirements of part II of chapter 408 the facility

shall inform each resident or the next of kin legal representative or agency

acting on each resident s behalf of the fact and the proposed time of

discontinuance of operation following the notification requirements provided

in s k 1 429 28 In the event a resident has no person to represent him

or her the facility shall be responsible for referral to an appropriate social

service agency for placement

2 Immediately upon the notice by the agency of the voluntary or

involuntary termination of such operation the agency shall monitor the

transfer of residents to other facilities and ensure that residents rights are

being protected The department in consultation with the Department of

Children and Family Services shall specify procedures for ensuring that all

residents who receive services are appropriately relocated

3 All charges shall be prorated as of the date on which the facility

discontinues operation and if any payments have been made in advance

the payments for services not received shall be refunded to the resident or

the resident s guardian within 10 working days of voluntary or involuntary

closure of the facility whether or not such refund is requested by the

resident or guardian

4 The Agency may levy a fine in an amount no greater than 5 000 upon

each person or business entity that owns any interest in a facility that

terminates operation without providing notice to the agency and the

residents of the facility at least 30 days before operation ceases This fine

shall not be levied against any facility involuntarily closed at the initiation of

the agency The Agency shall use the proceeds of the fines to operate the

facility until all residents of the facility are relocated

429 34 Right of entry and inspection In addition to the requirements

of s 408 811 any duly designated officer or employee of the department

the Department of Children and Family Services the Medicaid Fraud Control

Unit of the Office of the Attorney General the state or local fire marshal or

a member of the state or local long term care ombudsman council shall have

the right to enter unannounced upon and into the premises of any facility

licensed pursuant to this part in order to determine the state of compliance

with the provisions of this part part II of chapter 408 and applicable rules

Data collected by the state or local long term care ombudsman councils or

the state or local advocacy councils may be used by the agency in

investigations involving violations of regulatory standards

1n