13-004660 Senior Lifestyles, Llc, D/B/A, Kipling Manor Retirement Center vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, June 10, 2014.

Summary: Petitioner met burden of proof regarding entitlement to license; Respondent did not prove by competent and substantial evidence that Petitioner was guilty of a pattern of defective practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SENIOR LIFESTYLES, LLC, d/b/a,

KIPLING MANOR RETIREMENT CENTER,

Petitioner,

vs. Case No. 13 - 4660

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case commencing on February 25 - 26, 2014, and then reconvening on

March 25 - 28 in Pensacola, Florida, before Administrative Law

Judge R. Bruce McKibben of the Division of Admini strative

Hearings.

APPEARANCES

For Petitioner: John E. Terrel, Esquire

Law Office of John E. Terrel

Suite 11 - 116

1700 North Monroe Street

Tallahassee, Florida 32303

For Respondent: Richard Joseph Saliba, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this cas e is whether there is sufficient cause

for Respondent, Agency for Health Care Administration (AHCA or

the Agency), to deny the licensure renewal application filed by

Petitioner, Senior Lifestyles, LLC , d/b/a Kipling Manor

Retirement Center (Kipling or the Facility), to continue

operating a 65 - bed assisted living facility (ALF) located in

Pensacola, Florida.

PRELIMINARY STATEMENT

By way of a letter entitled Notice of Intent to Deny

Renewal, dated September 6, 2013, the Agency notified Petitioner

that AHCA wo uld be denying KiplingÓs renewal application for

licensure. Kipling timely filed a Request for Administrative

Hearing, which was forwarded to the Division of Administrative

Hearings and assigned to the undersigned Administrative Law

Judge. The final hear ing was set for February 10 - 14 and 25 - 28,

2014, in Pensacola, Florida. Respondent filed a motion seeking

to relinquish jurisdiction on the basis that PetitionerÓs failure

to do background screening for an employee was a violation of

applicable laws. Resp ondent argued that because that violation

had already been litigated in DOAH Case No. 11 - 4673 (in which

Judge Staros recommended a fine for the violation), AHCA could in

the present case again use that violation as a basis for denying

renewal of KiplingÓs licensure application. The motion was

denied.

Motions were filed concerning discovery disputes and were

resolved by way of Orders. Kipling filed a motion for

continuance and the final hearing was continued until

February 25 - 28. The final hearing was con ducted on those days

and then recommenced on March 25 - 2 8 , 2014. Motions to compel and

a motion in limine were filed and disposed of prior to

recommencement of the final hearing.

At the final hearing, Kipling called s ix witnesses:

Belie Williams, the owne r and administrator of the Facility;

Margaret Bonnell, RN surveyor; Brenda Golden, unit manager;

Cathy Cristostomo, nurse consultant; Arnold Rosenbleeth,

pharmacist; and Adrienne Taylor, assistant administrator.

KiplingÓs E xhibits 1 - 3, 5, 10 - 12, 14 - 16, 18 - 19, 21, 23 - 25, and

35 - 36 were admitted into evidence. The Agency called 13

witnesses: Shadrick Haston, ALF manager for AHCA;

Belie Williams; Yvonne Andrews, nurse surveyor for AHCA;

Peter Fedorovich, retired nurse surveyor; Elizabeth Dunn,

activities dir ector and assistant administrator at Kipling;

Carolyn Walton, nurse; Yahika Brown; Ferral Wendell, RN surveyor;

Lela Jackson, health facilities evaluator; Peggy Hamilton , RN

specialist; Norma Endress, RN surveyor; Anne Cone - Avery, acting

ALF unit manager; and (in rebuttal), Laqueta Teamer. AHCA's

E xhibits 1 - 18 and R ebuttal E xhibits 1 - 2 were admitted into

evidence.

Despite the partiesÓ representation at the conclusion of

final hearing to the contrary, a transcript of the final hearing

was ordered. Kiplin g had been given leave on the final day of

hearing to take the deposition of nurse Betsy McCormick to submit

in lieu of live testimony. The deposition was held, but Kipling

opted not to offer the transcript into evidence Ðdue to the

actions of AHCA counse l during that deposition.Ñ The parties

were given until 10 days after the McCormick transcript was filed

at DOAH to submit proposed recommended orders (PROs). After

deciding not to submit that transcript, the parties requested and

were allowed until May 30, 2014 , to file their PROs. Upon AHCAÓs

request for a page limit extension for the PROs, parties were

allowed a 75 - page limit. 1/ Kipling and AHCA each timely filed its

PRO on May 30, 2014. Both partiesÓ submissions were duly

considered in the preparat ion of this Recommended Order.

The final hearing in this matter was emotionally charged.

The denial of KiplingÓs application for licensure renewal is

tantamount to closure of the F acility. The Agency aggressively

sought to guarantee compliance with all r ules and regulations

governing assisted living facilities, regardless of the ultimate

impact on the residents. Kipling battled furiously to maintain

its license without acknowledging its own shortcomings. Neither

party seemed willing to compromise, view the evidence

objectively, or pursue resolution; there was instead an air of

all - out war during this entire proceeding. 2 / The actions of both

counsel in this proceeding brought to mind these words contained

in the Oath of Admission to the Florida Bar: ÐTo all opposing

parties and their counsel, I pledge fairness, integrity, and

civility, not only in court, but also in all written and oral

communications. I will abstain from all offensive personality

and advance no fact prejudicial to the honor or reputati on of a

party or witness, unless required by the justice of the cause

with which I am charged.Ñ That being said, the following

F indings of F act are made from the evidence presented at final

hearing. It must be noted, however, that t he evidence presented

was not extremely helpful in making a final determination of the

facts in this case. Most of the evidence addressing the surveys

at issue was unsubstantiated hearsay, without competent

supportive evidence. For example, the various survey reports

containe d statements that a surveyor was told by a resident or

facility employee that some thing or another occurred at some

point in time. Surveyors made conclusory findings concerning

ÐfactsÑ on the basis of what they found (or did not find) in

documents. Subj ective standards of neatness or cleanliness were

imposed without any base - line determination. KiplingÓs witnesses

offered perfunctory statements which lacked credibility.

All - in - all, the evidence did little more than provide a general

basis for each partyÓs position rather than evoke a clear

understanding of what circumstances actually existed.

FINDING S OF FACT

1. Kipling is a 65 - bed assisted living facility located at

7901 Kipling Street, Pensacola, Florida. It has been in

operation for approximatel y 20 years and is licensed by AHCA as

an assisted living facility with a limited mental health license

and a limited nursing services license . Kipling is an older

facility and its residents are some of the hardest residents to

place, i.e., many are homele ss, have serious mental illnesses,

and do not have money to pay for amenities and extra care. As

described by a former assistant administrator at Kipling,

Ð[The residents] are a very tough bunch.

However, they are loving. They donÓt always

communicate as well as you and I do. At

times theyÓre Î they have internal stimuli.

They hear things and see things that arenÓt

there. They donÓt have the full grasp of why

they have to be there, their illnesses and

what are, . . . that they may be doing wrong,

if theyÓre not clean, theyÓre not taking a

bath, they donÓt understand why they have to

do that or they donÓt have the internal

stimuli telling them not to do that. But,

overall, you know, the residents are very

happy and loving, unless they are agitated,

wh ich comes with mental illness.Ñ

(Elizabeth Dunn, Respondent E xhibit 18, pp.

18 - 19)

2. AHCA is the state agency responsible for licensing and

monitoring assisted living facilities in this State. As part of

its duties, AHCA makes a determination whether appli cations for

initial licensure or license renewal should be approved. Such

determinations are made, in part, based upon findings made by

Agency surveyors who visit facilities to inspect and monitor

compliance with regulatory guidelines. Surveyors make fin dings

as to what they observe at the specific point in time during

which their investigation is conducted. Their observations and

interviews with staff and residents are reduced to writing in

AHCA Forms 3020 or 5000, the Statement of Deficiencies report.

3. On June 25, 2013, Kipling filed an application for

renewal of its operating license. The application was filed

timely with AHCA. AHCA found there to be three items missing

from the application: 1) There was an outstanding balance of

$47.35 due on a f ee; 2) There was no current fire safety

inspection report; and 3) There was no fictitious name

registration.

4. Kipling responded to the omissions letter and all three

outstanding items were presumably provided to AHCA (although no

evidence to that effect was presented at final hearing). AHCA

did not assert that failure to provide those three items

constituted a basis for its decision to deny the licensure

renewal.

5. On September 6, 2013, AHCA issued a Notice of Intent to

Deny Renewal, advising Kipling that its renewal application was

being denied. The stated basis for the denial was Ðthe

applicantÓs failure to meet minimum licensure standards pursuant

to 408.815(1)(d), Florida Statutes.Ñ That statutory section

states in pertinent part: ÐIn addition to the gr ounds 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: . . . A demonstrated pattern of deficient performance;

. . .Ñ The Notice then listed a number of surveys that had been

conducted at the Facility and the general findings therein.

6. On October 15, 2013, AHCA issued an Amended Notice of

Intent to Deny Renewal Application. The Amended Notice included

information from two surveys which had been conducted after the

date of AHCAÓs first notice of denial. The Amended Notice cited

as Ðlegal grounds for the denial of the renewal applicationÑ

three distinct bases: 1) Violation of the Health Care Licensing

Procedure Act; 2) A demonstrated Pattern of Deficient

Performance; and 3) A failure to comply with the Background

Screening Standards.

7. At final hearing, the Agency presented evidence of

alleged deficiencies at Kipling during ten inspection surveys

conducte d over the past three years. The surveys, which will be

discussed individually below, are identified by the following

dates (although some of the surveys lasted more than one day):

February 17, 2011; February 1, 2012; June 11, 2012; October 26,

2012; Dec ember 19, 2012; March 14, 2013; April 24, 2013;

August 8, 2013; September 18, 2013; and October 2, 2013. 3/

8. AHCA is claiming a Ðpattern of deficient performanceÑ

by Kipling which, if proven, could establish a basis for not

renewing the licensure application . The findings made in the ten

surveys ostensibly form AHCAÓs basis for the alleged pattern of

deficient performance. A HCA Ós findings in and KiplingÓs response

to each of the aforementioned surveys is set forth in more detail

below. There are several di fferent kinds of surveys performed by

AHCA, but during each survey AHCA is generally looking for

compliance with the same rules and regulations. A survey may be

one of the following: A biennial survey, required for continued

licensure as an ALF; a follow - up survey to determine if cited

deficiencies have been corrected; a complaint survey based on

allegations made by someone , usually anonymously and sometimes

maliciously ; or a re - visit, much like a follow - up survey.

February 17, 2011

9. This biennial survey, conducted almost two - and - a - half

years before the Notice of Intent to Deny Renewal (and before

KiplingÓs current license was issued) , resulted in a finding of

seven Class III 4 / (that is, potentially or indirectly threatening)

deficiencies. Those deficienci es include:

• The latest inspection report was not

assessable to persons visiting the Facility.

• Two bottles of over - the - counter medications

used to treat constipation did not have

prescribing instructions on them.

• The same medication error as above, bu t cited

under a different standard.

• The Facility was using Lancets (tools for

taking blood samples) which had expired.

• There was no evidence that one employee had

received required HIV/Aids training.

• There was no documentation showing that one

emplo yee had received first aid training.

• There was not a comp lete substitution log for

meals.

10. Each of the cited deficiencies was corrected

immediately or w as otherwise cleared prior to the follow - up

survey. As to the specific citations: 1) The inspection report

was available in the administratorÓs office on the date of the

survey, but would hereafter be kept in the lobby area for easier

access by interested persons. Kipling is a closed facility, so

that anyone seeking entry must wait for the door to be un locked .

Such visitors could then request to look at the inspection report

and it would be made available to them. However, the inspection

reports could have been kept in the outer lobby area, which is

accessible to the general public. 2) The over - the - co unter

medications should have been labeled to show which resident was

taking them, and at what times; that failure was a documentation

issue rather than a medical issue. There was never any potential

for harm to the resident. 3) The old Lancets were disp osed of

immediately; no explanation was given as to why outdated lancets

were at the facility. 4) Documentation showing that each of the

employees had the appropriate training was presented. 5) The

prior food services director had taken the meal substitu tion

logs, so they were indeed missing as of the date of the survey.

The logs are being redrafted by current staff. Note: A meal

substitution log is simply a sheet of paper showing that the

planned meal for that day was not going to be served. Rather, a

substitute meal would be provided. This happened when the

Facility was unable to acquire the foods listed in the original

meal log. For example, if fried chicken was on the menu but the

Facility could not purchase chicken that day, it might substitute

beef for the chicken.

11. As this February 2011 survey was the first utilized by

AHCA in this proceeding, it is presumed that some or all of the

deficiencies cited therein form the basis for the alleged pattern

of deficient performance. As set forth below, no ne of these

cited deficiencies constitute the first instances of a pattern

followed by Kipling.

12. At the same time the biennial survey was going on, two

simultaneous surveys were being conducted by AHCA related to

KiplingÓs Limited Mental Health license and its Limited Nursing

Services license. Those surveys resulted in no findings of

deficiencies.

February 1, 2012

13. Seven deficiencies were found by AHCA during this

complaint survey. Each of them was a Class III, and each had

been corrected by the time of the revisit survey the following

month. The cited deficiencies were:

• The Facility failed to provide supervision or

assistance to four of 16 sampled residents

(according to statements allegedly made by

some residents and family members to the

surveyor Î alth ough there was no valid

corroboration for these hearsay - based

findings). One example given was that a

particular resident had not had a shower in

over a month, according to the residentÓs

statements;

• The Facility failed to act on the grievances

or compl aints of seven of 18 sampled

residents, but again there was no competent

and substantial evidence to support this

allegation;

• A medication technician rather than a nurse

assisted a resident with taking medications;

• There were incorrect medication obser vation

records (MORs) for two of six sampled

residents;

• Medications needed by some identified

residents were not in stock;

• The heat in one resident room was not working

properly, and washers and/or dryers were not

working at one point in time; and

• Med ications were documented as having been

given, but were not in fact given.

Note: None of the deficiencies in the prior

( February 1, 20 12) survey were re peated in

this survey.

14. The Facility corrected each of the seven deficiencies

within the time prescri bed by AHCA. In direct response to the

cited deficiencies, however, the Facility stated that:

1) Kipling has a bath schedule for its residents. Many of them

simply choose not to bathe and the Facility cannot force them to

do so. 2) There are no confirm ed instances of resident

complaints being ignored. 3) It may be that a medication

technician -- rather than a nurse -- assisted one resident with

his/her medications. While improper, the technician was

conscientiously attempting to make sure the resident rec eived

his/her medication. 4) The medication issues surrounding one of

the residents existed because the resident was under hospice

care. Once hospice became involved, medications fell under their

purview rather than being administered by KiplingÓs staff. The

evidence was unclear as to whether any o r all of the cited errors

were because of the residentÓs status as a hospice patient. 5)

It was difficult to ascertain from the evidence whether the

medication errors alleged actually existed. There was scant non -

hearsay evidence provided to make a legitimate determination of

whether an error was made. 6) The facility is old, and it is

probable that there could be heating or cooling issues in some

rooms. Nonetheless, all identified issues were addressed

imme diately. 7) There were errors on the MORs forms for some

residents.

15. There were, as in the prior survey, citations

concerning medication errors. The deficiencies were not exactly

the same, though some fell under the umbrella of Ðmedication

deficiencies.Ñ Based upon the kind of residents being served at

Kipling and the pool of available employees willing to work

there, it is not surprising that such errors occurred. 5 /

June 11, 2012

16. During this complaint survey only one deficiency was

cited, a Class III. It had to do with cleanliness of the

Facility in general, with four rooms specifically mentioned. The

Agency found that Room 22 had a strong odor; Room 23 had a Ðfist -

sized breakÑ in the door and the ceiling vent was hanging down;

t he vent in Room 18 was missing; and Room 6 had missing

baseboards. These deficiencies, euphemistically listed as

ÐenvironmentalÑ concerns, are to be expected in a facility such

as Kipling. They are not excusable and must be addressed -- but

they are not all that surprising.

17. By the time of the follow - up survey, the deficiency had

been corrected. Meanwhile, the Facility provided information

about each of the maintenance type deficiencies, to wit: The

resident in Room 22 used a bedside commode which was the source

of the smell. The damaged door and ceiling vent were in the

queue to be repaired at the time of the survey. The vent in Room

18 was replaced immediately upon discovery. (Some residents

removed vents, window screens, etc. , from time to time and they

would have to be r eplaced when discovered.) The missing

baseboards in Room 6 were due to the fact that a new vanity had

just been installed and the old baseboards were found not to fit

any longer. New baseboards had been ordered.

October 26, 2012

18. The Agency found two Cla ss III deficiencies in the

complaint survey conducted on this date:

• Room 35 had a strong odor; Room #17 had an

odor and a used adult diaper was found on the

shower stool; and Room 26 had a dirty floor.

• Room 20 did not have a vent cover over the

exhaust fan; a common area bathroom had no

vent fan or air conditioning vent cover.

Note: The missing vent covers were a repeat

from the prior survey, although for different

rooms.

19. Upon revisit, the deficiencies were not corrected. At

the time of the second revisit, one deficiency had been corrected

but not the other. At the last revisit, all items had been

corrected.

20. The Facility has a full - time maintenance person who

tries to keep up with repairs, but sometimes things get broken

faster than he can repair them. Further, some of the residents

are destructive because of their mental illness, resulting in

more physical plant problems than in other ALFs. This, coupled

with the fact that this is an old facility, indicates that the

existence of some physical p lant issues is to be expected. These

deficiencies confirm the difficulty faced by Kipling regarding

its physical plant; they do not, however, constitute a pattern of

deficient performance so much as they indicate slow responses to

the problems .

December 1 9, 2012

21. On this complaint survey (which included a follow - up

review from the October 26 survey), three additional Class III

deficiencies were cited. There were two medication errors cited

and one other deficiency:

• Residents 13 and 15 were receiving

medi cations which did not appear on the MOR;

Resident 17 received Tylenol which was on the

MOR, but for which there was no physicianÓs

order. Also, as - needed (PRN) Tylenol tablets

for Resident 15 were not in stock and neither

was the PRN acetaminophen for Res ident 17.

• The other deficiency had to do with failure

to file an adverse incident report when a

resident had eloped. All of the deficiencies

were ultimately corrected.

Note: The MORs deficiencies were similar to

those cited in a prior survey.

22. The Fa cility explained that it is often difficult,

because of the nature of the residents it serves, to keep up with

medications. Many of the residents are unable to fully

communicate with their physicians, many are without any financial

means of obtaining medi cations, many have had their medications

reduced by governmental agencies upon whom they rely. Often a

physician who is responsible for calling in the medications

simply fails to act because their patients (the ALF residents)

cannot or will not complain i f nothing is done. Thus, the

Facility does often receive citations for failures relating to

medication issues. While such deficiencies may constitute

repeated errors, they do not necessarily constitute a pattern of

deficient performance due to the reason s behind the failures .

23. As to the elopement issue, the resident left the

facility and went to his motherÓs house. The facility failed to

report the Ð elopement Ñ because the resident was generally allowed

to come and go at will. However, he was supposed to sign out

each time he left and returned, but did not do so this time.

While the resident did not truly ÐelopeÑ from the facility, his

failure to sign out should have been noted and technically

constituted a deficiency.

24. AHCA also cited Kipling for some ph ysical plant

deficiencies during this survey:

• The window screen in Room 2 was missing;

• Room 6 had Ðvery dirty floorsÑ and a noxious

chemical odor;

• Room 12 had dirty floors;

• Room 14 had dirty floors and the bathroom

door frame had rust on it;

• In Room 18 the bathroom shower area had a

Ðlarge amount of black substanceÑ on the

shower walls and the room had an Ðearthy

smellÑ to it;

• Room 20 has filthy floors and the toilet has

feces stains around the lid;

• Room 22 has a Ðreceptor missing and the bed

has a torn mattressÑ;

• Room 25 had dirty pillow cases, dirty floors,

and a portable urinal sitting near the bed

had urine in it. There was also urine on the

bathroom floor;

• There were flies in Room 31 and 34; Room 34

Ðneeds sweeping and moppingÑ and the air

co nditioner grill cover was missing;

• Room 36Ós window screen was missing and the

closet door was broken;

• Room 26 had a dirty floor and the room was

cluttered;

• Room 35 had dirty floors.

Note: Again some of the environmental issues

had been cited previou sly, but as noted this

was an old and poorly maintained facility.

25. These allegations by AHCA surveyors did not reflect

whether the conditions found at the time of the survey had

existed for a long period of time, what constituted ÐdirtyÑ in

the minds of th e surveyors, or whether any explanation was given

by the facility for the cited issues. Rather, the survey report

indicates that maintenance staff was made aware of the issues and

would take care of each one as time allowed. Again, this older

building, s erving mentally unstable residents, is likely to

experience some of these physical plant issues.

26. The facility has a full - time maintenance person, plus

two full - time housekeepers. Due to the nature of the individual

residents (many with mental health issue s), it is difficult to

keep up with housekeeping demands. Each employee of the facility

is charged with assisting in maintaining the facility to the

extent possible.

March 14, 2013

27. On this biennial survey coupled with a revisit for past

surveys, one Clas s III deficiency -- concerning food service and

dietary -- was cited. The Facility provided a lunch of chicken

alfredo, mixed nuts and a roll. However, the posted menu for

that day indicated there would be ham and beans, cabbage, rice ,

and cornbread. The Fa cility simply failed to log the substituted

meal on a substitution log.

28. On the re - visit portion of the survey, two Class II

deficiencies were cited concerning resident care and medication

issues:

• One resident care issue had to do with the

cleanliness, or lack thereof, of resident

rooms, missing vents, etc.

• Resident 1 was not receiving his Remeron;

Resident 2 had an expired prescription for

Lortab on a PRN basis, but the medication

had not been reordered and was not

available. Resident 13 was not given h is

mucinex on two different days and did not

have lortisone cream applied between his

toes twice daily as prescribed. Resident

14 did not have vitamin B - 12 available as

prescribed.

29. Kipling employs two full - time housekeepers to keep the

rooms as neat and tidy as possible. The housekeepers do a Ðfull

scrubÑ on a certain number of rooms each day and a superficial

cleaning of the others. All employees are expected to help keep

the rooms clean. The urine odor in one room on the date of the

survey was likely due to the fact that the resident had left a

used adult diaper in the trash can. It was removed as soon as it

was found. A missing closet door in one room was due to the

residentÓs preference; a missing dresser drawer in one room was

remedied as soon as it was discovered. (Many of the residents at

Kipling suffer from schizophrenia and other mental illnesses, so

they are prone to mistreating the physical plant.)

30. The Facility explained that many of its employees are

not conscientious and do not perform th eir duties as directed.

The poor work habits of employees caused problems that the

Facility tried to correct as quickly as possible. The best and

most well - trained employees were hired by nicer facilities. As

the place that accepted and cared for the low er stratum of

society, the Facility was only able to attract the least trained

and less motivated individuals.

31. All medi c ations were available and had been given as

prescribed, according to the FacilityÓs DON. However, the

assistant administrator admitted that Resident 1Ós medication had

been ordered but had not yet come in because the facility had

difficulty dealing with Vanguard, the pharmacy. Thus, the

medication could not have been provided to the resident on the

day of the survey.

32. The citation concern ing medication errors appears to be

a legitimate deficiency in this instance. Kipling was required

to correct those errors by the time of the follow - up survey,

which it did.

April 24, 2 013

33. This was a multi - purpose survey, including a follow - up

or revisi t survey. According to AHCA, the following deficiencies

were found:

• Resident 1Ós MOR was not up to date;

• Resident 2 did not have enough vitamin D

available for his/her weekly dosage;

• There was a mistake made with Resident 3Ós

medications after s/he ret urned from a

hospital visit;

• Resident 4 was given the wrong dosage of a

medication; and

• Resident 6 was getting the wrong dosage of

some medications and some of his/her

medications had been discontinued.

34. The facility disputed the claims by way of the

fo llowing facts:

1. Th e MOR for R esident 1 was filled in

retroactively by the appropriate person. [ 6/ ]

The problem had been an irregular

discontinuation notice used by Lakeview, one

of many providers with whom the facility does

business.

2. Although the M OR showed the vitamin D

being given every day, that was an error. At

the outset, only four daysÓ worth of vitamin

D was ordered; the MOR should not have shown

it being given every day. The MOR was

corrected, but the AHCA surveyor refused to

accept the co rrected version or the

explanation.

3. AHCA was correct in finding some errors

occurred with Resident 3Ós medications upon

return from his/her hospital visit.

4. The proper medications for Resident 4

were attached to his/her admission form and

signed b y his/her physician.

5. T he MOR for Resident 6 was in error, but

the medication (Plavix) had been given

appropriately. This was a documentation

error only.

35. There were obviously some inconsistencies between the

MOR, the appropriate dosages, and what med ications some residents

received. Those errors are an area of concern and should be

addressed. The Facility showed, by competent and substantial

evidence, that any and all such errors were corrected or

explained. Nonetheless, the medication errors are r epeated

deficiencies.

August 8, 2013

36. This was a complaint survey. Two Class II deficiencies

were cited at this survey: Resident 4 did not receive required

medications the first four days of his stay at the Facility.

Resident 2 needed eye drops that were not available. Resident 1

needed Baclofen but there was none on the medication cart. A

bottle was found in the residentÓs closet.

37. The Facility was also cited due to an alleged scabies

outbreak, but there is no credible evidence that a single case of

sc abies was confirmed among the residents. Nonetheless, all

scabies - like rashes were treated with an appropriate cream.

Several dozen residents had rashes of some kind (or shared a room

with someone who did), so the facility treated them all. It is

Kiplin gÓs belief that a new clothes detergent could have been

causing the rashes, but there was not any credible evidence to

support that contention.

38. Resident 4 did not get his/her medications immediately

upon admission; the nurse responsible for that mistake wa s

terminated from employment.

39. Resident 1 received one of his medications in an

improper dosage amount and another of his medications had run

out. Also, one employee (a re - hire from prior employment at the

Facility) did not have proof that she had taken the two - hour

Assistance with Medication training, which is required.

40. The surveyors also found a box of expired medications

in the facility Ðhurricane room.Ñ The medications should have

been disposed of by sending them back to the pharmacy or via some

oth er method. When the medications were discovered they were

immediately disposed of, but the existence of the medications in

the hurricane room constituted a deficient practice by Kipling.

September 18, 2013

41. This survey, which was conducted after KiplingÓs

license renewal had been denied, resulted in two Class II

deficiencies.

42. This was a complaint survey. The survey remains ÐopenÑ

as the Facility still has an opportunity to correct and/or

challenge the alleged deficiency. 7 / AHCA cited one Class III

defici ency having to do with how and when residents were evicted

from the Facility. Although the residentÓs admission contract

indicates that 45 daysÓ notice will be provided, only 30 daysÓ

notice was given to Resident 1. Resident 2 was also given an

immediate termination notice, but still remained at the Facility

at the time of the survey, some 33 days later. In each case,

there were extenuating circumstances for the expedited eviction;

in one case the resident was not paying his rent and in the other

case th e resident was bringing illegal substances into the ALF.

43. The Facility notes that this survey remains open and

there has not been a final determination as to the cited

deficiencies. The survey occurred after the denial of the

licensure renewal application.

October 2, 2013

44. Two Class III deficiencies were cited at this follow - up

survey. However, the survey remains open at this time.

45. A resident allegedly told an AHCA surveyor that s/he

did not receive a medication (Lexapro) and another did not

receive his/h er Rob i tussin. One resident allegedly ran out of a

medication (Ativan) and another was not receiving his/her

medications (Combigan and Vigamox). One resident was not getting

trazodone although it had been prescribed. However, there was no

non - hearsay ev idence to support these findings. Besides, Kipling

explained that these residents were difficult to care for and did

not have good relationships with their physicians. The F acility

often found it difficult to get residentsÓ prescriptions filled

timely.

B ackground Screening Issue

46. AHCA also cites Kipling for failing to properly conduct

background screening on one of its employees. The employee in

question was hired in April 2011. During a survey by the Agency

in July of that year, it was determined that t he employee had a

disqualifying offense in his background. Kipling had not

initiated a background screening of the employee because, as a

cook for the facility rather than someone working directly with

residents, it did not feel the screening was necessar y. Once his

disqualifying offense was discovered, the employee was dismissed

from employment with Kipling. The failure to obtain background

screening for the employee was addressed in DOAH Case No. 11 -

4643. In that case, ALJ Staros determined that the f ailure

constituted a Class III deficiency; she imposed a fine of $2 , 000

(which was actually the total for two Class III deficiencies

found during the survey, one of which was the background

screening issue). The Recommended Order was adopted by the

Agency in its Final Order.

47. Sanctions for the background screening deficiency have

already been imposed and paid. There is no basis for any further

penalty against Kipling related to that event. The facts of DOAH

Case No. 11 - 4643 will not be revisited in the p resent Recommended

Order.

48. Kipling offered into evidence a certificate for

employee Yahika Brown showing that Brown had received a TB test

from Sacred Heart Medical Group (SHMG). Brown testified that she

never received such a certificate, but that she saw one with her

name on it in the assistant administratorÓs office. The

assistant administrator, Adrienne Taylor, said that Brown brought

the certificate to the F acility and gave it to her . The charge

nurse from SHMG, Laqueta Teamer, testified that the Bro wn

certificate was a forgery. Teamer presented another certificate

which had been issued to S Ï - S -- , another former employee of

Kipling. The S Ï S -- certificate was signed the same day by the

same individuals and contained the same markings as BrownÓs

alleg ed certificate. There was no evidence in the SHMG files

that Brown had been present at their office on the date stated in

the certificate, nor could the nurse find BrownÓs name in any of

SHMGÓs files. The greater weight of the evidence is that BrownÓs

ce rtificate is fraudulent.

General Observations

49. It is patently clear that Kipling is not a pristine,

state - of - the - art assisted living facility. The physical plant is

old and severely abused by its residents. The competency level

of many staff is extremel y low, resulting in less effort being

made to clean up the general messiness of the F acility. Many of

the residents are on multiple medications and have little or no

support from their treating physicians in maintaining their

prescriptions.

50. The F acility staff often appears to operate in a shoot -

from - the - hip fashion concerning its duties. There are multiple

errors on the MOR documents; there does not seem to be a strong

sense of concern or empathy between residents and staff; and many

problems seem to be met with a shrug. The fact that the F acility

apparently falsified a certificate to indicate that one of its

employees received a TB test that had not occurred is most

concerning. It brings into question much of the testimony by

some Kipling witnesses, es pecially Adrienne Taylor. Nonetheless,

the owner and operator of Kipling seem s to be genuinely willing

to provide assisted living services to the most marginalized

strata of humanity in the Pensacola area. That is to be

commended, despite other negative actions.

51. Looking at the entirety of the evidence, the demeanor

of the witnesses, and the corroboration (or not) of hearsay

evidence, it is clear that the Facility has some on - going issues

which must be addressed regularly. There is insufficient

evidence, however, that a Ðpattern of deficient performanceÑ

exists concerning operation of the Facility.

CONCLUSIONS OF LAW

52. The Division has jurisdiction over the parties and

subject matter in this case. § 120.57(1)(k), Fla. Stat. (2013).

This proceeding is de n ovo. Id. Unless specifically stated

otherwise herein, all references to Florida Statutes will be to

the 2013 codification.

53. The burden of proof in this proceeding is on Kipling to

prove that it meets the minimum standards for approval of its

license renew al application. DepÓt of Banking & Fin. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996). The standard of proof

for Kipling is the preponderance of evidence standard. Once

Kipling me e t s that burden, AHCA then has a burden to prove, by

clear and convin cing evidence, that the allegations forming the

basis of its denial are true.

54. The clear and convincing evidence standard of proof has

been described by the Florida Supreme Court thusly:

Clear and convincing evidence requires that

the evidence must be foun d to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produ ces 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) ( quoting Slomowitz

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

55. The denial of KiplingÓs license renewal application is

tantamount to revocation of its license to operate. In either

case, the end result would be that Kipling would lose its

license. ÐWhere a statute provides for revocation of a license

the g rounds must be strictly construed because the statute is

penal in nature. No conduct is to be regarded as included within

a penal statute that is not reasonably proscribed by it; if there

are any ambiguities included, they must be construed in favor of

th e licensee.Ñ McClung v. Crim. Just. Stds. & Training CommÓn ,

458 So. 2d 887, 888 (Fla. 5th DCA 1984 ) .

56. AHCAÓs denial letter states three bases for denial of

KiplingÓs license renewal application: A violation of the Health

Care Licensing Procedures Act; A demonstrated pattern of

deficient performance; and A failure to comply with the

background screening standards. Those bases are set forth in the

following statutory sections.

57. Section 408.815, which states in pertinent part:

(1) In addition to the grounds provided in

authorizing statutes, grounds that may be

used by the agency for denying and revoking

license or change of ownership applications

include any of the following actions by a

controlling interest:

* * *

(c) A violation of this part, authorizin g

statutes, or applicable rules.

(d) A demonstrated pattern of deficient

performance.

58. Section 429.14, which states in pertinent part:

(1) In addition to the requirements of part

II of chapter 408, the agency may deny,

revoke, and suspend any license is sued 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 the following

actions by a licensee, f or the actions of any

person subject to level 2 background

screening under s.408.809, or for the actions

of any facility employee:

* * *

(f) Failure to comply with the background

screening standards of this part, s.

408.809(1), or chapter 435.

59. Inasmuch as the Agency has already imposed sanctions

against Kipling for its failure to properly initiate a background

screening for its employee (see DOAH Case No. 11 - 4643), it is

inappropriate and contrary to law to impose another penalty

against the Facility ba sed upon the same charge. And looking at

the nature of the violation, i.e., a mistake as to the need for

the screening in the first place and KiplingÓs decision to

dismiss the employee, there is no basis for such a draconian

action as denial of the licens e renewal.

60. As for the Ðdemonstrated pattern of deficient

performanceÑ allegation, while the Agency certainly established

that the Facility has numerous licensure issues and is not

operated as well as it should be, the deficiencies cited by AHCA

do not in dicate a pattern of deficient practice as much as they

represent the nature of the on - going problems faced by Kipling in

trying to serve its unique class of residents. It is clear from

the evidence that the Facility will likely continue to experience

prob lems with physical plant deficiencies as residents continue

to abuse their living quarters. The errors and omissions in the

MORs, however, could be corrected with proper training and due

diligence. That being said, it must be recognized that Kipling

is u nable to attract and retain better employees who would be

more diligent about their record - keeping duties.

61. The term Ðdemonstrated pattern of deficient

performanceÑ is not defined in rule or statute. There is no case

law which can be relied upon to ascerta in exactly what would

constitute such a pattern. In AHCA v. W.T. Holdings , Case No.

95 - 0128 (Fla. DOAH Nov. 4, 1996), ALJ Parrish found a Ðpattern of

deficienciesÑ to have existed. However, in that case, each of

the deficiencies had been found to exist o n the basis of final

orders that had been entered, not simply upon the allegations set

forth in a survey report. That case is distinguishable from the

instant situation.

62. If this was a case that involved the finding of

deficiencies and a determination of w hat sanctions to impose, it

is likely the sanctions would be imposed commensurate with the

violations which were proven. But this case contains an

absolute -- whether the license to operate should be renewed or

whether the facility would have to be closed. There is no way to

establish a moderated or mitigated punishment. That being the

case, it must be determined as a matter of law based upon a

preponderance of the evidence whether Kipling met the basic

requirements for licensure. It must also be determin ed by clear

and convincing evidence whether Kipling engaged in a pattern of

deficient performance which would warrant denial of its license

renewal application.

63. The evidence shows that Kipling had a number of cited

deficiencies during the ten surveys con ducted during a

two - and - a - half year time frame. It is evident that some of the

deficiencies were repeated from time to time. Many of the

deficiencies fell under the general category of Ðmedication

deficiencies.Ñ However, not all of the deficienci es were similar

in nature or could be called the same deficiency. The same can

be said about the physical plant citations; they fell within the

same umbrella term but were not all exactly the same. AHCA

attempts to take numerous citations and make them t he same based

upon the tag number under which they are cited.

64. Upon consideration of all the evidence, although it is

clear Kipling is a poorly operated and maintained facility, there

is insufficient clear and convincing evidence to deny renewal of

its application based upon a pattern of deficient performance.

It cannot be stated, as AHCA attempts to do, that the number of

deficiencies constitutes a Ðpattern of deficient performance.Ñ

If that were the case, AHCA could simply cite as many

deficiencies a s possible and then conclude, ipso facto, that a

pattern of deficient performance exists. This concept fails to

consider the nature of the deficiencies, whether the deficiencies

were challenged as untrue, whether the facility was provided an

opportunity t o contest the cited deficiencies as unwarranted,

etc.

65. Kipling is undeniably a substandard facility, compared

to other ALFs in the state system. However, considering the

population it serves and the staff it is able to attract, that is

not a surprise. W hether AHCA wishes to place Kipling on

probationary status or otherwise put the facility on notice that

further failures could result in loss of its license is within

the AgencyÓs discretion. But there is not clear and convincing

evidence that Kipling ope rated with a pattern of deficient

practices as contemplated by the statute.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Respondent ,

Agency for Health Care Administrati on, rescinding its Notice of

Intent to Deny Renewal Application. 8 /

DONE AND ENTERED this 10th day of June , 2014 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrat ive 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 10th day of June , 2014 .

ENDNOTE S

1/ PetitionerÓs PRO was 51 pages; RespondentÓs PRO was 55 pages.

2 / This fact was also evidenced by the partiesÓ proposed

recommended orders. Each was so completely prejudiced in favor

of their respective position and fraught with completely biased

co nclusory statements as to the facts, that it was hard to glean

any helpful or objective arguments from them.

3/ KiplingÓs licensure renewal application was filed June 25,

2013, meaning that its previous renewal application had been

filed around June 2011 . The first three surveys addressed by

AHCA would have occurred prior to issuance of KiplingÓs current

license being issued.

4 / Deficiencies are assigned in one of three classes, which are

described generally as follows: I Î Deficiencies which present

an imminent danger or substantial probability of death or serious

physical or emotional harm; II Î Those deficiencies which

directly threaten the physical or emotional health, safety, or

security of residents; III Î The kinds of deficiencies which

indirect ly or potentially threaten the well - being of residents.

5 / AHCA went to great lengths to list the number of deficiencies

within each area of interest investigated by surveyors. The

presumed conclusion of that list is that a great number of

deficiencies in any one area constitute, ipso facto, a Ðpattern

of deficient performance.Ñ The very nature of the survey process

militates against such a conclusion; the areas of deficiencies

are merely a guide for surveyors to follow so that they cover the

entire sp ectrum of possible operations at an ALF. There is no

provision in rule or statute that suggests that the number of

cited deficiencies in any one area establishes a pattern of

deficient practice. If that were the case, then those areas in

which Kipling ha d fewer citations during later surveys would have

to be deemed areas of exceptional performance.

6/ Kipling frankly admitted that the MORs were often corrected

retroactively by staff. From the evidence presented, it is

impossible to ascertain whether an y or all of the corrections

were legitimate updates or contrived falsifications.

7 / The ÐopenÑ surveys are not pertinent to this proceeding.

Inasmuch as the Facility still has an opportunity to challenge

the survey findings, those findings cannot consti tute competent,

substantial evidence of a deficiency.

8 / The attitude of the attorneys in this case made it one of the

more difficult hearings the undersigned judge has ever conducted.

While strong client advocacy has a place, it can sometimes do

more d amage to the ultimate decision making process than is

necessary. Although both counsel in this proceeding are

competent professionals, and their efforts are commended, the

animosity between them adversely affected their effectiveness in

this case.

COP IES FURNISHED:

John E. Terrel, Esquire

Law Office of John E. Terrel

Suite 11 - 116

1700 North Monroe Street

Tallahassee, Florida 32303

Richard Joseph Saliba, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 323 08

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date o f this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.