11-003721 Agency For Health Care Administration vs. Gene Cowles And Amelia Cowles, D/B/A Hillandale Assisted Living Status: Closed Recommended Order on Thursday, January 17, 2013.

Summary: Petitioner established two Class I violations; an administrative fine and survey fees were appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 3721

)

GENE COWLES AND AMELIA COWLES, )

d/b/a HILLANDALE ASSISTED )

LIVING , )

)

Respondents . )

)

RECOMMENDED ORDER

Pursuant to notice, on September 18 through 21, 2012, a

formal hearing in this cause was held in New Port Richey,

Florida, before Administrative Law Judge Lynne A. Quimby - Pennock

of the Division of Administrativ e Hearings (Division).

APPEARANCES

For Petitioner: James H. Harris, Esquire

Agency for Health Care Administration

The Sebring Building, Suite 330D

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

For Respondent s : Augustine Smythe Weekley, Esquire

Weekley Schulte Valdes, LLC

Suite 100

1635 North Tampa Street

Tamp a, Florida 33602

STATEMENT OF THE ISSUE S

Whether Respondents committed the violations alleged in the

Amended Administrative Complaint, and, if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

On June 27, 2011, Petitioner, Agency for Health Care

Administration (AHCA) , issued a five - count Administrative

Complaint (AC) against Respondents, Gene Cowles and Amelia

Cowles, d/b/a Hillandale Assisted Living (Hillandale or

Respondents). The AC alleged violations of various sections o f

c hapters 408 and 4 29, Florida Statutes (2010), and various

Florida Administrative Code r ules. Pursuant to sections 408.815,

429.14, 429.19 , and 429.49, AHCA is seeking $20,000.00 in fines,

two survey fees of $500.00 each, and the revocation of

Hillandale ' s license.

On July 15, 2011, Hillandale filed a Petition for Formal

Administrative Hearing (Petition). On July 26, AHCA referred the

Petition to the Division for a disputed - fact hearing and the

issuance of a recommended order.

A Notice of Hearing was issued setting the ca se for formal

hearing on August 31, 2011. On August 12, a Joint Motion for

Continuance was filed. 1/ The hearing was re - scheduled to

November 16 through 18, 2011. On October 28, another Joint

Motion for Continuance was filed. 2/ The continuance was grant ed.

In December 2011, AHCA filed a Motion to Continue Case for Trial

and Notice of Substitution of Counsel. Therein, AHCA noted that

the case had been continued twice, " the parties wish[ed] to

continue to attempt to settle, " and there was in sufficient ti me

for a new AHCA counsel to prepare for the hearing. 3/ The case was

re - scheduled to February 2012.

On January 24, 2012, AHCA filed an Unopposed Motion to Amend

Administrative Complaint. The motion was granted , and all future

references will be to the Amended Administrative Complaint ( AAC )

filed with the Division on January 31, 2012. The AAC retained

the same allegations as the original AC ; however , a new

paragraph, numbered 61, was added that alleged a " demonstrated

pattern of deficient performance " b y Respondents.

On January 31, 2012, a Joint, Agreed Motion to Continue Case

for Trial was filed. Both parties expressed their continued

desire to resolve the case via settlement. However, both parties

had " undertaken [discovery] in earnest, " and addition al time was

needed to secure the depositions of witnesses f or both parties

and to complete the discovery. Following one additional

continuance, 4/ the parties were noticed for hearing on September

18 through 21, 2012.

AHCA presented the testimony of : Jill Sutter; Sergio Soto;

Pamela Aromola; Katherine Benjamin; Sally H. Leonard;

Patricia Duval Anderson; Jorge Juliab Villalba, M.D.; Gillian

Allane; and Patricia Reid Kaufman. 5/ Ms. Kaufman also provided

rebuttal testimony. AHCA ' s Exhibits 8 through 20 6/ an d 22

through 56 were admitted into evidence under seal. AHCA ' s

Exhibits 57 through 64 7/ were also admitted. AHCA ' s Exhibit 21

was offered into evidence , and that ruling was reserved at

hearing. Exhibit 21 is now admitted.

During the hearing, Respondents made an oral motion to

strike certain portions of AHCA ' s Exhibit 58, the deposition of

Mr. Rice. That motion is hereby denied.

Hillandale presented the testimony of : Clarice T. Roberts;

Marilyn Sue Ward, M.D.; Deborah A. Martinez, registered nurse

( R . N . ) ; and John Ross. Beverly Buchan reported to the hearing ;

however , she became ill prior to being called. The parties

agreed to obtain Ms. Buchan ' s testimony via deposition.

Hillandale ' s Exhibits 2 through 1 3 , 8/ 16 through 30, 55a, 55b, 63,

70, 71 , and 7 6 through 78 9/ were admitted into evidence.

At the conclusion of the hearing, the parties requested

30 days from the filing of Ms. Buchan ' s deposition in which to

submit their respective p roposed r ecommended o rders (PRO s ). The

request was granted. Ms. Bu chan ' s deposition was filed on

November 19, 2012 , and was admitted as Hillandale's Exhibit 79 .

The six - volume Transcript of the proceeding was filed with the

Division on October 12, 2012.

Following the conclusion of the hearing, the undersigned,

Petitione r ' s counsel, Respondents ' counsel , and Mr. Ross ,

Respondents' representative, c onducted a walk - through of the

Hillandale facility. No testimony was taken, nor was any

descriptive commentary allowed ; the participants simply walked

through the facility.

On October 25, 2012, a Joint, Agreed Motion to Increase Page

L imit for Proposed Order, Rule 28 - 106.215, Fla. Admin. Code was

filed. Therein , the parties requested that the page limitation

be increased to 80 pages per party. An Order was issued on

October 29 , allowing each party 50 pages in which to present its

respective PRO. Each party timely submitted its PRO, and each

PRO has been considered in the preparation of this Recommended

Order.

FINDING S OF FACT

1. At all times material hereto, Hillandale operat ed as a

24 - bed limited mental health care (LMHC), assisted living

facility (ALF) located at 6333 Langston Avenue, New Port Richey,

Florida. Hillandale ' s license number is 10549.

2. AHCA is the regulatory agency that has jurisdiction over

Hillandale, purs uant to c hapter 408, Part II, and c hapter 429,

Part I, Florida Statutes (2012), 10/ and Florida Administrative

Code Chapter 58A - 5.

3. On June 13, 2011, AHCA notified Hillandale by certified

letter that its Medicaid Provider Agreement in Florida was being

t erminated. 1 1 /

4. Zero tolerance is a collective name " given to all of our

[Florida] state laws, administrative rules, policies, procedures,

standards of care, et cetera, related to abuse, neglect and

exploitation. " Although initially instituted in respon se to

reported sexual abuse instances, in either 2004 or 2005, the zero

tolerance initiative was expanded to include all forms of abuse,

neglect , and exploitation involving persons wi th developmental

disabilities.

5. Caregivers for persons with developmen tal disabilities

must be properly trained to assist in some of the most intimate

tasks of daily living. Additionally, those caregivers must be

aware of the reporting requirements for any known or suspected

abuse, neglect or exploitation.

6. Amelia Cowles is a co - owner, with her husband Gene

Cowles , of Hillandale. Mrs. Cowles continues to hold credentials

to be an administrator of the ALF. At times when John Ross is

not at the facility, Mrs. Cowles serves as its administrator.

7 . Mr. and Mrs. Cowles als o own three other ALFs: Maple w ay

Community, Inc., 1 2 / in Safety Harbor, Florida ; and Amelia ' s House

and 80 Place, both located in Pinellas Park, Florida.

8 . Mr. Ross serves as the administrator for Hillandale and

Maple w ay. He has served Hillandale since its opening in 2005.

Mr. Ross has a high school diploma. 1 3 / He does not have any

specialized training in health care, but has some training in

health care administration.

9. Mr. Baez provided direct care to residents at

Hillandale. His exact length of service at Hillandale is

unknown, although he was terminated in May 2011. Mr. Ross

explained his reasoning for hiring Mr. Baez as, Mr. Ross " needed

someone to work there [Hillandale], " he (Mr. Baez) passed his

background screening, " he had a military back ground, he got high

recommendations, he had done some work in a church, and

Mr. Baez ' s " pastor spoke very highly of him. " Mr. Baez did not

have any health care - related training prior to working at

Hillandale. Mr. Baez may have had cardiopulmonary resusci tation

(CPR) training when he started at Hillandale. Mr. Ross updated

Mr. Baez ' s CPR and provided the following training classes:

first aid; HIV and infection control; major incident reporting;

emergency disaster planning; food and nutrition; elopement;

DNRO 14/ ; zero tolerance 1 5 / ; and abuse, neglect , and exploitation. 1 6 /

10 . Hillandale first opened its doors for operation in

2005. The facility has approximately 12 sleeping rooms, two

living areas, four bathrooms, a laundry room, a dining room, a

kitchen , a closet , and an office. Hillandale is laid out in two

zones. The number of staff present at any given time fluctuates

based on the day and time and how many residents are present.

During peak weekday periods (between 3:00 p.m. and 7:00 p.m.) ,

there a re three staff members present. However, on the weekends ,

there are only two staff members present.

11 . Hillandale, along with its sister facilities (Amelias

House and Maple way) , has " Abuse Reporting " guideli nes that

require the following:

The purpose of this is to establish

guidelines for reporting abuse. If [a]

Client has [an] active case worker with the

agency [sic] for Persons with Disabilities it

must be reported to them within 24 hours.

AHCA has eliminated the adverse Incident

requirement as of Ju ly 2009.

The Florida Statutes on the reporting of

Abuse 415.1034

Any person, including, but not limited to,

any:

* * *

4. Nursing home staff; assisted living

facility staff; adult day care center

staff; . . . social worker; or other

profession al adult care, residential, or

institutional staff;

* * *

who knows, or has reasonable cause to

suspect, that a vulnerable adult has been or

is being abused, neglected, or exploited

shall immediately report such knowledge or

suspicion to the cent ral abuse hotline.

" Abuse " means any willful act or threatened

act by a relative, caregiver, or household

member which causes or is likely to cause

significant impairment to a vulnerable

adult ' s physical, mental, or emotional

health. Abuse includes act a nd omissions.

" Sexual abuse " means acts of a sexual nature

committed in the presence of a vulnerable

adult without that person ' s informed

consent. . . . " Sexual abuse " does not

include any act intended for a valid medical

purpose or any act that may reas onably be

construed to be normal caregiving action or

appropriate display of affection.

* * *

" Caregiver " means a person who has been

entrusted with or has assumed the

responsibility for frequent and regular care

of or services to a vulnerable ad ult on a

temporary or permanent basis and who has a

commitment, agreement, or understanding

with that person . . . that a caregiver role

exist. " Caregiver " includes, but is

not limited to, . . . employees and

volunteers of facilities as defined in

subsect ion (8). . . .

Request that the administrator be told of the

report if filed with the hotline as soon as

is possible.

Revised July 2009

12 . Hillandale caters to a younger - age clientele who have

mental health issues with cognitive impairments or develop mental

disabilities. Each of Hillandale ' s residents (at any given time

there could be 20 to 24 residents, also known as clients) has a

variety of medical or psychological conditions including (but not

limited to): autism; mental retardation; Asperger ' s; traumatic

brain injury; Down syndrome; schizoaffective; post traumatic

stress disorder; bipolar; impulse control disorder; depressive

disorder; mood disorder; attention deficit and hyperactivity

disorder; borderline intellectual functioning; low IQ; and/or

seizures of various types. These residents are vulnerable

individuals, who need assistance in many aspects of daily living

and need to be kept safe as they may be unable to act or react in

self - defense. Vulnerable individuals may be unable to

distinguis h between right and wrong, good and bad, and/or

dangerous or in nocent gestures or situations.

13 . Since opening its doors in 2005, there have been

behavioral problems with the residents at Hillandale because that

is " the nature of the population that ' s be ing served. " The

behavioral problems include: yelling ; screaming ; cursing ;

getting into other people ' s business ; elopement ; and threats of

physical violence. This diversity in residents requires more

oversight from well - trained staff.

14 . All of these conditions are manageable, to some degree,

when routines are established and adhered to. Hillandale ' s

residents are considered vulnerable adults. Some residents are

violent; others are slow or have conditions that cause them to

react to new or different routines in unusual ways. The

residents c an be hurt during altercations.

15 . The residents who are able to perform their own

activities of daily living do so, and they are allowed wide

latitude in such. However , when another resident gets upset or

bothe red by either a change in routine or by someone ' s words or

gestures, a violent outburst can erupt with fig hting, hitting,

and/or biting.

16 . The Hillandale staff did not have adequate training to

manage the residents, other than moving them from one activ ity t o

another.

17 . In 2007, an Administrative Complaint was issued

alleging Hillandale had failed to provide enough qualified staff

to provide a safe living environment for the residents.

Hillandale was alleged to have violated the residents rights to

l ive in a safe and decent living environment, free from abuse and

neglect, and the residents were not treated with consideration,

respect , and due recognition of their personal dignity.

Hillandale admitted the allegations, and , on January 3, 2008,

AHCA iss ued a Final Order finding that Hillandale was in

violation of section 429.28(1)(a) and (b), Fl orida Stat utes

(2007). An administrative fine was imposed as well as a fee for

the survey.

18 . In August 2010, Katherine Benjamin was at Hillandale to

conduct a survey. In conducting that survey, Ms. Benjamin

reviewed several Facility Event Reports (reports). In each

report reviewed, a resident had suffered some kind of injury,

either self - inflicted or caused by another resident. These

reports, when initially reviewed by the surveyor, did not contain

documentation that the residents ' health care provider, the

residents ' representative, or their appropriate case worker had

been notified. Further, the report form specifically directs

that the date and time that those persons were notified should be

recorded. That specific information wa s not present. These

reports are required to be completed by Hillandale staff to

document what happened and how the events were resolved.

Ms. Benjamin found deficiencies in three different instances.

Mr. Ross described the discrepancies as merely " a paperwork

problem " that w as corrected. When other deficiencies or problems

were pointed out by surveyors, Mr. Ross discounted, disputed or

otherwise found fault with the surveyors as opposed to accepting

that there was or might be a problem and embracing the

opportunity to improve the care.

19 . In February 2011, L.T. became a resident at Hillandale.

Mr. Ross first met L.T. through FACT. 17/ L.T. suffered from

mental illness, was abo ut to turn 18 years old, and was about to

age out of the foster care system. Although Mr. Ross testified

that he had received a large fax from FACT regarding L.T.,

Mr. Ross claimed that he did not know of L.T. ' s propensity for

violence. The fax included information that , in 2009, L.T. had

been fighting with his peers at school, had threatened or stated

that he heard the devil tell him to hit his sister, and , in late

2010, L.T. was incarcerated on a charge of battery on the elderly

(his foster father). De spite this information being available,

Mr. Ross, as Hillandale ' s administrator , admitted L.T. to

Hillandale without appropriately accounting for L.T. ' s propensity

for violence.

20 . Mr. Ross learned that L.T. had struck a Hillandale

resident in late Febru ary 2011. A mental health case manager was

interviewing L.T. in the common area. Another resident, C.J.,

apparently felt compelled to answer the questions for L.T. L.T.

took exception to C.J. ' s repeated interruptions of his interview,

and , after C.J. pu shed L.T., L.T. hit C.J. C.J. then called the

police who arrested L.T. Although Mr. Ross conducted the

investigation, he failed to obtain the name of or interview the

mental health case manager who was with L.T. at the time.

Mr. Ross attended the court h earings regarding L.T. L.T. spent

approximately 22 days in jail. Once he was released, L.T.

returned to Hillandale. Mr. Ross felt he had dealt with the

situation by having C.J. leave Hillandale, as he felt she was the

instigator. There was no evidence that this incident was

reported to the abuse hotline.

21 . In April or May 2011, L.T. was accused of hitting or

attempting to hit another resident, M.A. The police were called ;

yet , they declined to intervene because neither person was

injured. Mr. Ross was " chewed out " by the police for this call.

Mr. Ross believed he was chewed out because the police were

frustrated with the repeated calls from Hillandale residents for

minor incidents for which police involvement was not warranted.

Mr. Ross did not in stitute any new staff procedures to reduce or

eliminate the unwarranted calls by residents to the police.

22 . Sometime in May 2011, L.T. started telling the

Hillandale staff he did not have to listen to them tell him

(L.T.) what to do. Mr. Ross contacted FACT and asked that FACT

move L.T. to another location.

23 . In late May, prior to L.T. being moved, L.T. was

arrested for touching another resident, A.W. Hillandale staff

witnessed L.T. slapping A.W. across his face. L.T. was told to

stop slapping A. W., and he refused. The police were called , and

L.T. was arrested for battery. There was no evidence that this

incident was reported to the abuse hotline.

24 . M.A. was initially a resident/client of Maple w ay.

Prior to her admission to Maple w ay, Mr. Ros s had reviewed M.A. ' s

psychological evaluation, psychological workup , and her discharge

paper from a crisis stabilization unit. Mr. Ross accepted M.A.

because the Maple w ay staff had worked with similar individuals

for approximately 15 years. M.A. suffers from mental retardation

(autism) and is in her 20s, however, she acts like a person in

her teens.

25 . After approximately four to six months 18 / at Maple w ay,

M.A. transferred to Hillandale in early 2011. The stated reasons

for transferring M.A. to Hillan dale were for her to be with

people around her own age , and there were more staff to watch

her. M.A. required a lot of attention. M.A. wanted or needed a

lot of attention from the Hillandale staff because she had lots

of questions and wanted answers. M. A. could not receive th at

kind of attention at the other facility.

26 . Mr. Baez became a caregiver to M.A. on the day she

moved into Hillandale. Mr. Baez was told t hat M.A. suffered from

autism.

27 . In April 2011, Mrs. Cowles confronted Mr. Baez after

h earing from residents that Mr. Baez had kissed the resident,

M.A. Mrs. Cowles told Mr. Baez that he was not to kiss a

resident again. Mr. Baez conceded to Mrs. Cowles that he had

kissed M.A. on the cheek, " like a child. " Mrs. Cowles did not

report her c onversation with Mr. Baez to any abuse hotline as

required or to the administrator, Mr. Ross , at the time of the

confrontation, because she thought she had " take[n] care of the

situation. "

28 . On April 27, 2011, Mr. Ross conducted a " full staff

meeting, " wherein Mr. Ross " restated the need for the client -

caregiver relationship to be respected and used the Zero

Tolerance outline for DD [developmentally disabled] clients and

let them [staff] know that this was to be taken very seriously. "

Specifically, Mr. Ross told Mr. Baez he needed to establish an

appropriate boundary with M.A. , as she was interfering with

Mr. Baez ' s work commitments. Mr. Baez did not ask or tell M.A.

to do other things, and she continually followed Mr. Baez a round

the Hillandale facilit y.

29 . On April 30, 2011, three days after this staff meeting

with the zero tolerance instruction, Mr. Ross suspended Mr. Baez

from his Hillandale employment for four days. The basis for the

suspension was Mr. Baez ' s inability to establish a proper

bound ary with M.A. Mr. Ross testified he became aware that

Mr. Baez had kissed resident M.A. " just before " Mr. Ross

suspended Mr. Baez.

30 . It is unclear when Mr. Baez ' s suspension actually

started or ended. However, Mr. Baez ' s scheduled days to work

were Tu esday, Wednesday, Friday, Saturday , and Sunday, the

3:00 p.m. to 11:00 p.m. shift. Mr. Baez returned to wor k on or

after Thursday, May 5.

31 . According to Mr. Ross, upon Mr. Baez ' s return to work

following the suspension, Mr. Baez was not allowed " to wor k solo

at any time. " Additionally, Mr. Ross directed other Hillandale

staff members to watch Mr. Baez to make sure he respected the

boundary issues. Mr. Ross " had him [Mr. Baez] watched just to

see about the boundary issue, and that was all. " There was no

evidence that additional staff were on duty to watch both the

residents and Mr. Baez, possibly dim inishing the staff ' s ability

to care for the residents.

32 . On May 14, 2011, less than ten days after serving a

four - day suspension, Mr. Baez was terminat ed from his Hillandale

employment. The basis for the termination was Mr. Baez ' s

" failure to keep an appropriate boundary with her [M.A.] as far

as the amount of time he spent. " The written Hillandale report ,

created on May 14 by Mr. Ross when Mr. Baez wa s terminated,

recorded that Mr. Ross was told by other staff (at Hillandale)

that Mr. Baez had been accused of " having sex with a client

[M.A.]. " The report continued in part:

[O]n May 14th a client made accusation I

brought Orlando into the office and he said

he was guilty of not setting the boundary and

was not thinking clearly. He had also been

talked with by two other staff members

(Joseph Costa and Erasmo Cintron) encouraging

him to set the boundary, he told me he did

not listen as he did not think i t was that

serious. I also asked him about photos of

her on his phone he admitted he took them and

had them [.] I informed him that was a HIPPA

violation and he needed consent from her

guardian. All of this is a clear cut

violation of facility policies a nd state

guidelines of client care.

33 . Although Mr. Costa and Mr. Cintron jointly or

individually advised Mr. Ross of the accusation, neither staff

took it upon themselves to contact the hotline until Mr. Ross

directed them to do so. The staff may not have known specifics

of the alleged liaison; however , an " immediate " call to the

hotline might have altered the course of events. The staff did

not have adequate training to handle the circumstance.

34 . The termination of Mr. Baez ' s employment ended the

possibility for Mr. Baez being a perpetrator, but the overall

lack of staff training persi s ted.

35 . As the owner of several ALFs, including Hillandale, the

Cowles es have been previously aware of the vulnerability of their

clientele. In particular, in 200 5, Richard Langston was an

employee at Maple w ay when he was arrested and ultimately

convicted of lewd or lascivious molestation o f a disable d adult.

The fact pattern of the Maple w ay allegation is similar to the

alleged abuse herein.

36 . Hillandale ' s abu se policy (which is the same policy for

Maple w ay) requires specific reporting and documenting, yet

Mrs. Cowles failed to follow that policy.

CONCLUSIONS OF LAW

37 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matte r of this

proceeding, pursuant to sections 120.569, 120.57(1), and 429.19 ,

Florida Statutes .

38 . In the instant case, AHCA has the burden of proving by

clear and convincing evidence that Hillandale committed the

violations as alleged and, if there are vio lations, the

appropriateness of any fine resulting from the alleged

violations. Dep ' t of Banking & Fin., Div. of Sec. & Investor

Prot. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris

v. Turlington , 510 So. 2d 292, 294 (Fla.1987).

39 . In Slomow itz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), the court held that:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify 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 conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

40 . In pertinent part, rule 58A - 5.0182 provides:

An assisted living facility shall provide

care and services appropriate to the needs of

residents accepted for admission to the

facility.

(1) SUPERVISION. Facilities shall offer

personal supervision, as appropri ate for each

resident, including the following:

* * *

(b) Daily observation by designated staff of

the activities of the resident while on the

premises, and awareness of the general

health, safety, and physical and emotional

well - being of the in dividual.

(c) General awareness of the resident ' s

whereabouts. The resident may travel

independently in the community.

* * *

(4) ACTIVITIES OF DAILY LIVING [ADL].

Facilities shall offer supervision of or

assistance with activities of daily li ving as

needed by each resident. Residents shall be

encouraged to be as independent as possible

in performing ADLs.

* * *

(6) RESIDENT RIGHTS AND FACILITY PROCEDURES.

(a) A copy of the Resident Bill of Rights

. . . shall be posted in full vie w in a

freely accessible resident area, and included

in the admission package provided pursuant to

Rule 58A - 5.0181, F.A.C.

* * *

(e) The facility shall have a written

statement of its house rules and procedures

which shall be included in the adm ission

package provided pursuant to Rule 58A - 5.0181,

F.A.C. The rules and procedures shall

address the facility ' s policies with respect

to such issues, for example, as resident

responsibilities, the facility ' s alcohol and

tobacco policy, medication storag e, the

delivery of services to residents by third

party providers, resident elopement, and

other administrative and housekeeping

practices, schedules, and requirements.

* * *

(g) The facility shall provide residents

with convenient access to a t elephone to

facilitate the resident ' s right to

unrestricted and private communication,

pursuant to Section 429.28(1)(d), F.S. The

facility shall not prohibit unidentified

telephone calls to residents. For facilities

with a licensed capacity of 17 or more

residents in which residents do not have

private telephones, there shall be, at a

minimum, an accessible telephone on each

floor of each building where residents

reside.

* * *

(9) OTHER STANDARDS. Additional care

standards for residents residi ng in a

facility holding a limited mental

health, . . . are provided in Rules 58A -

5.029, . . . F.A.C., respectively.

41 . In pertinent part, rule 58A - 5.019(1) provides:

ADMINISTRATORS. Every facility shall be

under the supervision of an administrator who

is responsible for the operation and

maintenance of the facility including the

management of all staff and the provision of

adequate care to all residents as required by

Part I of Chapter 429, F.S., and this rule

chapter.

42 . Section 415.102, Florida Sta tutes, provides the

following definitions:

(1) " Abuse " means any willful act or

threatened act by a relative, caregiver, or

household member which causes or is likely to

cause significant impairment to a vulnerable

adult ' s physical, mental, or emotional

h ealth. Abuse includes acts and omissions.

(2) " Activities of daily living " means

functions and tasks for self - care, including

ambulation, bathing, dressing, eating,

grooming, toileting, and other similar tasks.

* * *

(19) " Protective investiga tion " means

acceptance of a report from the central abuse

hotline alleging abuse, neglect, or

exploitation as defined in this section;

investigation of the report; determination as

to whether action by the court is warranted;

and referral of the vulnerable adult to

another public or private agency when

appropriate.

(20) " Protective investigator " means an

authorized agent of the department who

receives and investigates reports of abuse,

neglect, or exploitation of vulnerable

adults.

(21) " Protective serv ices " means services to

protect a vulnerable adult from further

occurrences of abuse, neglect, or

exploitation. Such services may include, but

are not limited to, protective supervision,

placement, and in - home and community - based

services.

(22) " Protect ive supervision " means those

services arranged for or implemented by the

department to protect vulnerable adults from

further occurrences of abuse, neglect, or

exploitation.

* * *

(25) " Sexual abuse " means acts of a sexual

nature committed in th e presence of a

vulnerable adult without that person ' s

informed consent. " Sexual abuse " includes,

but is not limited to, the acts defined in

s. 794.011 (1)(h), fondling, exposure of a

vulnerable adult ' s sexual organs, or the use

of a vulnerable adult to so licit for or

engage in prostitution or sexual performance.

" Sexual abuse " does not include any act

intended for a valid medical purpose or any

act that may reasonably be construed to be

normal caregiving action or appropriate

display of affection.

* * *

(27) " Vulnerable adult " means a person

18 years of age or older whose ability to

perform the normal activities of daily living

or to provide for his or her own care or

protection is impaired due to a mental,

emotional, sensory, long - term physical , or

developmental disability or dysfunction, or

brain damage, or the infirmities of aging.

43 . Section 429.28 (known as the Resident ' s Bill of Rights)

provides:

(1) No resident of a facility shall be

deprived of any civil or legal rights,

benefits, or privileges guaranteed by law,

the Constitution of the State of Florida, or

the Constitution of the United States as a

resident of a facility. Every resident of a

facility shall have the right to:

(a) Live in a safe and decent living

environment, free fr om abuse and neglect.

(b) Be treated with consideration and

respect and with due recognition of personal

dignity, individuality, and the need for

privacy.

* * *

(d) Unrestricted private communication,

including receiving and sending unopened

c orrespondence, access to a telephone, and

visiting with any person of his or her

choice, at any time between the hours of

9 a.m. and 9 p.m. at a minimum. Upon

request, the facility shall make provisions

to extend visiting hours for caregivers and

out - of - t own guests, and in other similar

situations.

* * *

(j) Access to adequate and appropriate

health care consistent with established and

recognized standards within the community.

(k) At least 45 days ' notice of relocation

or termination of resi dency from the facility

unless, for medical reasons, the resident is

certified by a physician to require an

emergency relocation to a facility providing

a more skilled level of care or the resident

engages in a pattern of conduct that is

harmful or offensi ve to other residents. In

the case of a resident who has been

adjudicated mentally incapacitated, the

guardian shall be given at least 45 days '

notice of a nonemergency relocation or

residency termination. Reasons for

relocation shall be set forth in wri ting. In

order for a facility to terminate the

residency of an individual without notice as

provided herein, the facility shall show good

cause in a court of competent jurisdiction.

* * *

(e) The agency may conduct complaint

investigations as w arranted to investigate

any allegations of noncompliance with

requirements required under this part or

rules adopted under this part.

(4) The facility shall not hamper or prevent

residents from exercising their rights as

specified in this section.

(5) No facility or employee of a facility

may serve notice upon a resident to leave the

premises or take any other retaliatory action

against any person who:

(a) Exercises any right set forth in this

section.

(b) Appears as a witness in any hearing,

inside or outside the facility.

(c) Files a civil action alleging a

violation of the provisions of this part or

notifies a state attorney or the Attorney

General of a possible violation of such

provisions.

44 . Section 429.02 provides , in pertinent part:

(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 ownership 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.

45 . Section 429.075 provides , in pertinent part:

An assisted living facili ty that serves three

or more mental health residents must obtain a

limited mental health license.

(1) To obtain a limited mental health

license, a facility must hold a standard

license as an assisted living facility, must

not have any current uncorrected deficiencies

or violations, and must ensure that, within

6 months after receiving a limited mental

health license, the facility administrator

and the staff of the facility who are in

direct contact with mental health residents

must complete training of no less than

6 hours related to their duties. Such

designation may be made at the time of

initial licensure or relicensure or upon

request in writing by a licensee under this

part and part II of chapter 408.

Notification of approval or denial of such

reque st shall be made in accordance with this

part, part II of chapter 408, and applicable

rules. This training will be provided by or

approved by the Department of Children and

Family Services.

(2) Facilities licensed to provide services

to mental health re sidents shall provide

appropriate supervision and staffing to

provide for the health, safety, and welfare

of such residents.

46 . Section 429.14 provides , in pertinent part:

(1) In addition to the requirements of

part II of chapter 408, the agency may den y,

revoke, and suspend any license issued under

this part and impose an administrative fine

in the manner provided in chapter 120 against

a licensee for a violation of any provision

of this part, part II of chapter 408, or

applicable rules, or for any of t he following

actions by a licensee, for the actions of any

person subject to level 2 background

screening under s. 408.809 , or for the

actions of any facility employee:

(a) An intentional or negligent act

seriously affecting the health, safety, or

welfare of a resident of the facility.

* * *

(e) A citation of any of the following

deficiencies as specifi ed in s. 429.19 :

1. One or more cited class I deficiencies.

2. Three or more cited class II

deficiencies.

* * *

(h) Failure of the license applicant, the

licensee during relicensure, or a licensee

that holds a provisional license to meet the

minimum license requirements of this part, or

related rules, at the time of license

application or renewal.

* * *

(k) Any act constituting a ground upon which

application for a license may be denied.

47 . Section 429.19 provides , in pertinent part:

(1) In addition to the requirements of

part II of chapter 408, the agency shall

impose an administrative f ine 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 an

intentional or negligent act seriously

affecting the health, s afety, 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 probable effect on facility residents.

The agency shall indicate the c lassification

on the written notice of the violation as

follows:

(a) Class " I " violations are defined in

s. 408.8 13 . The agency shall impose an

administrative fine for a cited class I

violation in an amount not less than $5,000

and not exceeding $10,000 for each violation.

(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 viola tion.

* * *

(3) For purposes of this section, 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 provisions of the applicable laws

or rules were violated.

(b) Actions taken by the owner or

a dministrator 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.

(4) Each day of continuing violation after

the date fix ed for termination of the

violation, as ordered by the agency,

constitutes an additional, separate, and

distinct violation.

(5) Any action taken to correct a violation

shall be documented in writing by the owner

or administrator of the facility and verif ied

through followup visits by agency personnel.

The agency may impose a fine and, in the case

of an owner - operated facility, revoke or deny

a facility ' s license when a facility

administrator fraudulently misrepresents

action taken to correct a violation.

(6) Any facility whose owner fails to apply

for a change - of - ownership license in

accordance with part II of chapter 408 and

operates the facility under the new ownership

is subject to a fine of $5,000.

(7) In addition to any administrative fines

impos ed, the agency may assess a survey fee,

equal to the lesser of one half of the

facility ' s biennial license and bed fee or

$500, to cover the cost of conducting initial

complaint investigations that result in the

finding of a violation that was the subject

of the complaint or monitoring visits

conducted under s. 429.28 (3)(c) to verify the

correction of the violations.

(8) During an inspection, the agency shall

make a reasonable attempt to discuss each

violation with the owner or administrator of

the facility, prior to written notification.

48 . Section 408.815 provides , in pertinent part:

(1) In addition to the ground s provided in

authorizing statutes, grounds that may be

used by the agency for denying and revoking a

license or change of ownership application

include any of the following actions by a

controlling interest:

(b) An intentional or negligent act

materiall y affecting 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.

(e) The applicant, licensee, or controlling

interest has been or is currently excluded,

suspended, or terminated from participation

in the state Medicaid program, the Medicaid

program of any other state, or the Medicare

program.

49 . Section 408.813 provides , in pertinent part:

As a penalty for any violation of this part,

authorizing statutes, or applicable rules,

the agency may impose an administrative fine.

(1) Unless the amount or aggregate

limitation of the fine is prescribed by

authorizing statutes or applicable rules, the

agency may establish criteria by rule for the

amount or aggregate limitation of

administrative fines applicable to this part,

authorizing statutes, and applicable rules.

Each day of violation constitutes a separate

violation and is subject to a separate fine.

For fines imposed by final order of the

agency and not subject to further appeal, the

violator shall pay the fine plus interest at

the rate specified in s. 55.03 for each day

beyond the date set by the agency for payment

of the fine.

(2) Violations of this part, authorizing

statutes, or applicable rules shall be

classified according to the nature of the

violation and the gravity of its probable

eff ect on clients. The scope of a violation

may be cited as an isolated, patterned, or

widespread deficiency. An isolated

deficiency is a deficiency affecting one or a

very limited number of clients, or involving

one or a very limited number of staff, or a

situation that occurred only occasionally or

in a very limited number of locations. A

patterned deficiency is a deficiency in which

more than a very limited number of clients

are affected, or more than a very limited

number of staff are involved, or the

s ituation has occurred in several locations,

or the same client or clients have been

affected by repeated occurrences of the same

deficient practice but the effect of the

deficient practice is not found to be

pervasive throughout the provider. A

widespread deficiency is a deficiency in

which the problems causing the deficiency are

pervasive in the provider or represent

systemic failure that has affected or has the

potential to affect a large portion of the

provider ' s clients. This subsection does not

affec t the legislative determination of the

amount of a fine imposed under authorizing

statutes. Violations shall be classified on

the written notice as follows:

(a) Class " I " violations are those

conditions or occurrences related to the

operation and mainten ance of a provider or to

the care of clients which the agency

determines present an imminent danger to the

clients of the provider or a substantial

probability that death or serious physical or

emotional harm would result therefrom. The

condition or pract ice constituting a class I

violation shall be abated or eliminated

within 24 hours, unless a fixed period, as

determined by the agency, is required for

correction. The agency shall impose an

administrative fine as provided by law for a

cited class I viola tion. A fine shall be

levied notwithstanding the correction of the

violation.

(b) 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 dire ctly threaten the physical or

emotional health, safety, or 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 th e correction of the

violation.

50 . AHCA has established by clear and convincing evidence

that Hillandale has failed to provide a safe and decent

environment free from abuse and neglect and has failed to treat

its residents with consideration and respect and with due

recognition of personal dignity and individuality. Hillandale

failed to ensure that its residents were not abused by either

other residents or staff members. Hillandale ' s administration

failed to appreciate the significan t vulnerab ility of i ts

residents when screening potential new residents and then failed

to implement staff training to ensure a safe environment.

§§ 429.14(1)(a) and (e); 429.19(2)(a) and (5); and 429.28(1)(a)

and (b), Fla . Stat .

51 . AHCA has established by clear and convinc ing evidence

that Hillandale 's participation in the s tate Medicaid provider

network has been terminated. § 408.815(1)(e), Fla . Stat.

52. Pursuant to sections 408.813(2)(a) and 429.19, an

administrative fine of not less than $5,000.00 and not exceeding

$1 0,000.00 shall be imposed for a Class I violation, even after

the condition or practice has been eliminated. The removal of a

violent resident and the employment termination of a staff member

were warranted.

53. Pursuant to section 429.19(7), the agency may assess a

survey fee of $500.00 to cover the cost of conducting the

investigation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that the Agency for Health Care Administration

enter a final order finding that Gene Cowles and Amelia Cowles ,

d/b/a Hillandale Assisted Living , violated sections 429.28(1)(a)

and (b) and 408.815(1)(e) , impos ing an administrative fine of

$20,000.00 , and assessing a survey fee of $1,000.00 ($500.00 for

each investigation) associated with this case.

DONE AND ENTERED this 1 7 th day of January , 2013 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

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 1 7 th day of January, 2013.

ENDNOTE S

1/ This j oint m otion expre ssed that Respondents had secured

different counsel for representation and needed additional time

to complete discovery.

2/ The second j oint m otion expressed that " The parties expect to

amicably resolve their differences raised by the Administrative

Comp laint in a proposed Settlement Agreement " and that the

parties were " actively pursuing settlement options " and had

delayed additional discovery to seek a resolution.

3/ The original counsel for AHCA left the a gency without notice,

leaving the current cou nsel with little recourse other than to

ask for additional time to prepare. Although Respondents

objected to the continuance, the motion reflected that continued

settlement discussions were being explored, to which Respondents

did not object.

4/ The la st request for continuance was to allow AHCA to petition

in circuit court for the enforcement of a properly - noticed, non -

party expert witness who was scheduled for a deposition and

failed to attend. The outcome of that action was not disclosed.

5/ Respo ndents had also listed some of these witnesses for its

own case - in - chief. To provide an orderly hearing flow and allow

Respondents the opportunity to elicit the direct testimony of

each witness, the undersigned allowed Respondents ' cross

examination to go beyond Petitioner ' s direct.

6/ Exhibit 12 indicates it is eight pages in length , and it is.

However, the last sentence on the eighth page is incomplete,

giv ing the impression that there was more to the document.

7/ Exhibits 57 through 61 include the deposition testimony of :

Marilyn Ward, M.D.; Tom Rice; Rachel Agustines, M.D.; Amelia

Cowles; and John Ross , respectively. Ex hibits 63 and 64 are the

depositions of Carmen Cintron and Erasmo Cintron , respectively.

8/ Hillandale ' s Exhibit 13, Mr. Ross ' employment file , has been

rearranged in chronological order in order to follow his training

and certifications.

9/ Hillandale ' s Exhibit 78, a not - to - scale sketch of the

facility, was created at the hearing at the request of the

undersigned. Both parties reviewed the sketch prior to its

admission into evidence, and a copy of the sketch was provided to

both parties.

10/ All future references to Florida Statutes will be to 2012,

unless otherwise indicated.

1 1 / The letter stated the agreement would termi nate 30 days after

the date of the letter. On July 13, 2011, the agreement ended.

1 2 / Mapleway Community, Inc., was referred to as Mapleway

throughout the hearing .

13/ It is noted that several of Mr. Ross' training certificates

or notification letters are addressed to "Dr. John Ross" or

"John Ross, Ph.D." Between 2006 and February 2011, Professional

Crisis Management wrote Mr. Ross no less than four letters

addressing him as "Dr. Ross." In 2010, Vanguard Advanced

Pharmacy Systems issued a continuing education certificate of

attendance to "John Ross, Ph.D." These distinct designations are

unwarranted as Mr. Ross does not have the requisite education to

utilize the titles.

14/ DNRO was never defined. It is assumed to be "Do Not

Resuscitate Order."

15/ The only certificate evidencing Mr. Baez's "zero tolerance

sexual abuse prevention" is dated "November 30, 2008."

16/ Several of Mr. Baez's certificates of completion, executed by

Mr. Ross, contain his title as "Dr. John Ross IT Trainer," "John

Ross , Ph.D. Instructor," or "John Ross, Ph.D. Administrator."

These distinct designations are unwarranted, as Mr. Ross does not

have the requisite education to utilize the titles.

1 7 / Both parties asked witnesses about FACT. Neither party

provided an overv iew of the services provided by FACT. The

undersigned finds that general ly FACT is an organization that

somehow facilitates services to and monitors progress of those

persons affected by significant mental health issues in the Tampa

Bay area.

18 / In his deposition, Mr. Ross responded " Five or six months " to

the question of how long M.A. had been a resident at Maple w ay.

Yet , a moment later , Mr. Ross recounted and stated " I don ' t

believe I said six months " and instead stated " I believe I said

four to five [months] " was how long M.A. was at Maple w ay.

COPIES FURNISHED:

Augustine Smythe Weekley, Esquire

Weekley Schulte Valdes, LLC

Suite 100

1635 North Tampa Street

Tampa, Florida 33602

James H. Harris, Esquire

Agency for Health Care Administration

The Seb ring Building, Suite 330D

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for H ealth Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard 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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.