14-000435 Lauderhill Family Care Retirement Residence, Inc., D/B/A Lauderhill Family Care Retirement vs. Agency For Health Care Administration Status: Closed Recommended Order on Friday, May 23, 2014.

Summary: Petitioner did not meet the applicable re-licensure standards because it failed the biennial survey, was a controlling interest in an ALF which was closed, and had an outstanding fine. Recommend denial of renewal application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAUDERHILL FAMILY CARE

RETIREMENT RESIDENCE, INC.,

d/b/a LAUDERHILL FAMILY CARE

RETIREMENT,

Petitioner,

vs. Case No. 14 - 0435

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

___________________________ ____/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted before Administrative Law Judge Mary Li Creasy ,

Division of Administrative Hearings , by video teleconference at

sites in Tallahassee and Miami, Florida, on April 9 and 10, 2014.

APPEARANCES

For Petitioner: Aram Caldarera Bloom, Esquire

Shapiro, Blasi, Wasserman and Gora, P.A.

7777 Glades Road , Suite 400

Boca Raton, Florida 33434

For Resp ondent: John E. Bradley, Esquire

Agency for Health Care Administration

Fort Knox Building, Mail Stop 3

2727 Mahan Drive , Suite 3431

Tallahassee , Florida 3 2 30 8

S TATEMENT OF THE ISSUE

Whe ther Petitioner's renewal application for an a ssisted

l iving f acility (ALF) license should be denied based upon

Petitioner's failure of the biennial re - licensure survey

conducted o n June 10 and 11, 2013 , and because Petitioner has a

controlling interest in another ALF that has an unpaid fine of

$5 , 000 .00 from 2012 after its license was revoked.

PRELIMINARY STATEMENT

On October 2, 2013, the Agency for Health Care

Administration (AHCA) issued a Notice of Intent to Deny (Notice)

a license renewal application f iled by Petitioner. As stated in

the Notice, the basis for the denial was Petitioner's failure of

a biennial licensure survey conducted on June 10 and 11, 2013 , in

which Petitioner was cited for two Class II and eight Class III

violations. 1/ Further, Pet itioner had a controlling interest in

another ALF, Serenity Gardens at Lauderhill, Inc. (Serenity

Gardens), which has an unpaid fine in the amount of $5,000.00

imposed by Final Order on March 30, 2012 , for AHCA case number

2011008024. Serenity Gardens als o had its license revoked on

March 30, 2012 , in that same Final Order.

Petitioner requested an administrative hearing. On

January 27, 2014, AHCA forwarded the request to the Division of

Administrative Hearings, which scheduled and conducted the

hearing.

O n April 7, 2014, the parties filed a Pre - hearing

Stipulation, including a statement of agreed facts that have been

adopted and incorporated herein as necessary.

At the final hearing, which took place on April 9 and 10,

2014, Petitioner called the following witnesses: Susan Spaw,

William Spaw, and Holli Raven. Petitioner's Exhibits 2

and 3 were admitted in evidence. AHCA called the following

witnesses: Shaddrick Haston, Jim Alfred, Michael Forrester, and

Nicolas Frias. Respondent's Exhibits 1 through 7 w ere admitted.

Neither party ordered a transcript of the final hearing.

Both parties filed proposed recommended orders which were

considered in the preparation of this Recommended Order. Unless

otherwise noted, citations to the Florida Statutes and Florid a

Administrative Code refer to the 2013 version s .

FINDING S OF FACT

1. AHCA is the state agency responsible for regulating home

health agencies in Florida. In this capacity, AHCA determines

whether to approve applications for renewal of licensure as an

AL F, and it has administrative jurisdiction to enforce the laws

governing such licensees, including the authority to take

disciplinary measures against licensees who violate the

applicable statutes and rules.

2. Petitioner is a corporation which operates a 62 - bed ALF

in the Cannon Point neighborhood of Lauderhill, Florida. The ALF

has both a standard ALF license and a specialty limited mental

health (LMH) license. Petitioner has been owned and operated for

approximately 13 years by Susan and William Spaw. Mrs. Spaw

serves as p resident , a dministrator , and c hief f inancial o fficer

of Petitioner and owns a 51 percent interest in Petitioner. As

such, she is "a controlling interest" of Petitioner as defined by

section 408.803(7) , Florida Statutes.

3. Mrs. Spaw also was a controlling interest of Serenity

Gardens, an ALF which had its license revoked by AHCA by Final

Order dated March 30, 2012 (Final Order). By the same Final

Order, Serenity Gardens also had a $5,000.00 fine imposed against

it by AHCA that remai ned unpaid as of the date of the final

hearing in this proceeding.

4 . Florida ALF licenses must be renewed every two years.

Petitioner filed an application for license renewal with AHCA

which was received on March 20 , 2013. When Petitioner's

application was received by AHCA, it was referred to Jim Alfred

(Alfred), senior management analyst in the ALF licensing unit.

Alfred reviewed the application to determine whether any items

were missing or anything needed to be added or corrected.

5. On April 12, 2 013, AHCA issued an Omissions Letter

(Omissions Letter) d rafted by Alfred to Mrs. Spaw advising that

Petitioner's renewal application was determined to be incomplete

and specifying the errors and omissions to be addressed within

21 days to deem the applica tion complete.

6. Among other things, the Omissions Letter state s that

pursuant to s ection 408.831, if there are any outstanding fines,

liens, or overpayments that have been assessed by f inal o rder of

AHCA against the licensee or a common controlling inte rest , they

must be paid prior to license/registration issuance. The

Omissions Letter indicates that AHCA's records show that , in

addition to having a controlling ownership interest in

Petitioner, Mrs. Shaw also ha d a controlling ownership interest

in Sere nity Gardens which had an outstanding fine in Final Order

status for the amount of $5,000.00.

7. The Omissions Letter also notified Petitioner that

section 429.14(3 ) , Florida Statutes, gives AHCA the authority to

deny th e renewal application based upon th e revocation of license

number 10176, which was issued to Serenity Gardens .

8. As part of the ALF license renewal process, AHCA

conducts a biennial "survey." The survey is a comprehensive

inspection of an ALF facility and its records to determine

complia nce with applicable statutes and rules. The survey must

be completed before the renewal is issued. During the survey,

AHCA surveyors observe staff in their interactions with residents

and the dispensing of medications. The surveyors also examine

the phy sical plant and review resident records.

9. When Alfred reviewed Petitioner's application,

Petitioner's license was "red flagged" in AHCA's computer system

because of the revocation of the license for Serenity Gardens and

the outstanding $5,000.00 fine. Alfred brought this to the

attention of his supervisor, Shaddrick Haston (Haston), AHCA's

unit manager for ALFs. Although either the revocation of the

license for Serenity Gardens, a facility in which Mrs. Shaw had a

controlling interest, or the outstandi ng $5,000.00 fine w ould be

a sufficient basis for denial of the renewal application, Haston

directed Alfred to wait until receipt of the biennial survey

results for P etitioner's ALF before moving forward with a

possible denial of the renewal application.

1 0 . The biennial re - licensure survey w as conducted at

Petitioner's facility on June 10 and 11, 2013 , by AHCA surveyors

Michael Forrester (Forrester) and Nicolas Frias (Frias) . At the

time of the survey, both Forrester and Frias were experienced

surveyors, each with over approximately 10 0 inspections,

including renewal application biennial surveys.

11 . Working together, Forrester and Frias determined there

were ten deficiencies, commonly cited as "tags , " in reference to

applicable regulatory standards.

Tag A 010

12. Tag A 010 cited Petitioner with a violation of Florida

Administrative Code Rule 58A - 5.0181(4) regarding " C ontinued

R esidency." This rule requires that the patient must have a

face - to - face medical examination by a licensed health care

provider at least every three years after the initial assessment,

or after a significant change, whichever comes first. The

results of the examination must be recorded on AHCA Form 1823

(Form 1823) .

13. A resident observation log revealed that on May 7,

2013, a r esident was taken by ambulance to the hospital because

she was disoriented, stumbling, drooling , and had slurred speech.

Petitioner's staff checked her blood sugar and found it very

high. The resident also expressed that she wanted to commit

suicide. Al though the resident was not diagnosed with diabetes

at that time, the resident was determined to have high blood

sugar which needed to be monitored by home health services.

Neither the change in mental status or physical status was

documented on a Form 18 23 although each qualif ies as a

"significant change."

Tag A 030

14. Tag A 030 cited Petitioner with a violation of rule

58A - 5.0182(6) and section 429.28 regarding "Resident Care - Rights

& Facility Procedures." This deficiency was based upon the

observatio n that the ALF had a pet cat that had no documentation

of vaccination since 2009. This was considered to be potentially

harmful to the residents. This violation was admitted by

Petitioner.

Tag A 052

15. Tag A 052 cited Petition er with violati ng rule 58A -

5.0185(3) regarding "Medication - Assistance with Self -

Administration." Forrester observed staff assisting residents in

the self - administration of medications and saw that the required

procedures for unlicensed staff were not followed properly with

four re sidents . A staff member was observed assist ing one

resident with the application of a medication patch on the

resident 's abdomen. The staff member did not wear gloves , nor

did she wash her hands after providing assistance.

16. Two residents received med ication without the staff

member first reading the label in the presence of the resident s .

Staff was also observed leaving a resident before the resident

took her medication , in violation of the r ule. These violations

were admitted by Petitioner , but Pet itioner attributed these

deficiencies to the staff being nervous due to the presence of

the surveyors .

Tag A 053

17. Tag A 053 cited Petitioner with violatin g rule 58A -

5.0185(4) regarding "Medication - Administration." This deficiency

was based upon a revi ew of resident records that reflect an

unlicensed staff member performed blood glucose testing on a

resident. Upon questioning, the surveyors learned that this was

not the only time this occurred because Mrs. Spaw and the staff

were unaware that a license d medical professional is required by

the rule to perform this type of procedure .

Tag A 054

18. Tag A 054 cited Petitioner with violating rule 58A -

5.0185(5) regarding "Medication Î Records." This deficiency was

based on the finding that five out of 28 sa mpled residents'

medication observation records (MOR s ) were not appropriately

maintained.

19. Forrester observed a staff member assist resident 18

with two medications. However that resident's MOR revealed that

resident 18 should have been provided with three medications.

The staff member noted on the MOR that one of the medications,

Risperidone, an antipsychotic medication, was not available.

After the survey or questioned why the resident was not receiving

the medication, another staff member found the missing

medication.

20. Forrester observed a staff member take a package of

medications from a filing cabinet and a pi ll from one of the

packages fell o n the floor. None of the same pill type was

missing from future doses for resident 13. A review of t he MOR

for resident 13 showed that one capsule by mouth daily was

initialed as being given to the resident from June 1 through

June 11, 2013. Because one pill was lying on the floor, it is

not possible for the resident to have received all of the prior

do ses.

21. The MOR for resident 16 showed that this resident was

to be given one 800mg tablet of i buprofen three times a day and

had in fact received the ibuprofen as ordered from June 1 through

June 10 , 2013. However, when staff was questioned by the

surv eyor regarding why no i buprofen was available for this

resident on June 11, the surveyor was told that the physician had

discontinued this order in September 2012. According to staff,

the pharmacy erroneously printed the order for ibu profen on the

MOR in June . The deficiency was based upon the fact that staff

indicated on the resident 's MOR for the first ten days of June

that they were assisting the resident with this medication when,

in fact, no medication was available.

22. A review of the MORs for res ident s 21 and 22 indicated

that unlicensed staff initialed for providing injections.

According to staff, the injections were actually provided by

licensed health care provider s who came to the facility. At some

point later, staff wrote "error." Only the individual who

actually provides the injection is to initial the MOR.

Tag A 056

23. Tag A 056 cited Petitioner with violating rule 58A -

5.0185(7) regarding "Medication Î Labeling and Orders." This

deficiency was based , in part, on the finding that Petition er

failed to ensure that medication orders were followed as directed

for 12 out of 28 sampled residents. These 12 residents received

their 8 :00 a.m. medications after 9 :00 a.m. on June 11, 2013.

According to the facility's pharmacy, the ideal window for

providing medications to a resident would be no more than an hour

before and an hour after the required medication dosage time as

noted on th e MORs. The resident is supposed to tak e the

medications at the time intervals given. The timing issue

becomes wo rse when a resident takes a medication more than once a

day. The delay of assistance with self - administered medications

for sampled residents by staff is not within the recommended

pharmacy time intervals for providing medication assistance at

dosage time s. The facility's failure to provide physician -

order ed medication a t prescribed dosage times directly affects

the well - being of the sampled residents.

24 . On June 11, 2013, Mrs. Spaw acknowledged exceeding the

recommended time frame for medication distri bution and indicated

that it might be due to people coming in late. However, the

staff individual who was observed distributing medications late

stated that she starts the morning medications at 8 :00 a.m.

Mrs. Spaw indicated during the survey that she th ought the

medication distribution was beginning at 7 :00 a.m. but she is not

at the facility at that time. 2 /

25 . Tag A 056 was also based upon the observation of a

resident who did not receive all doses of medication, despite

records indicating that all do ses had been dispensed when, in

fact, one dose was found on the floor. This deficiency was noted

under this tag because it represented a failure to follow the

doctor's order of prescribing one dosage per day.

Tag A 093

26 . Tag A 093 cited Petitioner with violating rule 58A -

5.020(2) regarding "Food Service - Dietary Standards." This

deficiency was based upon P etitioner's failure to follow its own

prepared menus. This rule requires that m enus are to be dated

and planned at least one week in advance for both regular and

therapeutic diets. Any substitutions are to be noted before or

when the meal is served. A three - day supply of nonperishable

food, based on the number of weekly meals the facility has

contracted with residents to serve , shall be on hand at al l

times.

27 . The surveyors found that the facility was not providing

fruit juice despite fruit juice being on the menu, the menus were

not showing a substitution , and the facility did not have a stock

of fruit juice available. Petitioner provided no expl anation or

evidence to rebut this deficiency.

Tag A 152

28 . Tag A 152 cited Petitioner with violating rule 58A -

5.023(3) regarding "Physical Plant Î Safe Living

Environment/Other." In accordance with this rule, residents are

supposed to be able to decorate their rooms with their own

belongings as space permits. This rule also requires that

residents are provided with a safe living environment.

29 . This deficiency was based upon the observation that a

resident's magazine pictures, which he had taped to the wall of

his room, were torn down. This left the walls with missing

paint , and they were unsightly. A drain cover for a shower was

missing in another resident's bathroom leaving an open hole in

the floor which could result in injury to the resident.

Pet itioner did not dispute this deficiency.

Tag A 167

30 . Tag A 167 cited Petitioner with violating rule 58A -

5.025(1) regarding "Resident Contracts." Petitioner is required

by this rule to maintain resident contracts that have an accurate

monthly rental rat e. For two of the 28 residents sampled, the

surveyors found that one contract had a rate left blank and

another had an incorrect rate.

Tag AL 241

31 . Tag AL 241 cited Petition er with violating rule 58A -

5.029 ( 2 ) regarding " LMH Î Records. " This rule require s that a

facility with a LMH license maintain an up - to - date admission and

discharge log identifying all mental health residents. Review of

the facility's records showed that Petitioner had only one

admission and discharge log which did not identify mental health

residents .

3 2 . This rule also requires that each mental health

resident shall have a Community Living Support Plan (CLSP)

prepared by the facility administrator and the individual's

mental health care provider which identified the specific needs

o f the resident and a plan for how those needs will be met. The

CLSP is to be updated annually. A review of resident 1's records

showed that Petitioner only had a CLSP that had been last updated

in February 2008. Although the resident had an Interim Ment al

Health Assessment dated February 18, 2013, it did not reference

the CLSP or contain any of its mandatory components.

The Exit Interview

3 3 . On June 11, 2013, at the completion of the insp ection,

Forrester and Frias met briefly for an exit interview wit h

Mrs. Spaw, Assistant Administrator Holli Raven ( Raven ), and

Resident Assistant Marcia Gray (Gray) . The purpose of the

meeting was to provide a summary of the surveyors' findings and

to discuss the Petitioner's responses, if any, to the concerns. 3/

Forr estor represented at the meeting that he and Frias believed

the deficiencies were all Class III violations but that the

determination of classifications was subject to review by their

supervisor .

Statement of Deficiencies

3 4 . On June 20, 2013, Forrestor h and - delivered to

Petitioner a copy of Form 3020, the Statement of Deficiencies ,

which included a detailed summary of the applicable rules

violated and facts supporting the finding of deficiencies . The

cover letter indicated that two tags, A 054 and A 056, regarding

medication records, labeling and orders, were considered Class II

deficiencies. As such, AHCA directed P etitioner to comply with a

designated corrective action plan within five days.

3 5 . When delivering the Statement of Deficiencies,

Forrestor explained to Mrs. Spaw that the medication - related

deficiencies were upgraded by his supervisor from Level III to

Level II. Forrestor's supervisor was not physically present at

the survey but reviewed the results reported by Forrestor and

Frias and upgra ded the classifications based upon her training

and familiarity as a licensed practical nurse with medication

issues.

3 6 . The corrective action plan required Petitioner to

provide a medication training course, approved by the Department

of Elder Affairs, to staff. It also required P etitioner to

ensure all unlicensed staff maintains a minim um of two hours of

continuing education training on providing assistance with self -

administered medication. The plan also directed Petitioner to

obtain the consultation of a pharmacist to ensure all staff

providing assistance with self - administered medication is

following the guidelines of section 429.256 and that such

consultation must be no less than three months in length .

3 7 . Petitioner immediately hired a pharmacy consultant and

implemented training for staff. The consultant also reviewed the

resident's medical records to make sure they were in compliance

with applicable rules. However, Petitioner did not notify AHCA

of its compliance efforts nor did AHCA conduct a re - inspection to

determine whether the plan was being followed.

3 8 . Mrs. Spaw was very surprised to receive the extensive

statement of deficiencies. In particular, she was dismayed that

the facility was cited with two C lass II violations when the

surve yors had indicated at the exit interview that the purported

deficiencies were C lass III violations. According to Mrs. Spaw,

she is not aware of any other facility in her vicinity which ha s

received C lass II designations for the types of deficiencies for

w hich her facility is cited. 4/ Mrs. Spaw and Forrester had no

conversation regarding the findings when he hand - delivered the

June 20, 2013 , correspondence from A HCA.

3 9 . Mrs. Spaw felt that the survey findings reflected a

bias or animus against her facili ty. However, there was

absolutely no evidence of this presented at the final hearing.

Both Forrester and Frias testified that they had no prior

instruction with regard to how to conduct the survey other than

when it was scheduled. They also testified th at they conducted

the survey at P etitioner's facility in the same fashion that they

have conducted numerous other re - licensure surveys.

40 . Petitioner did not contest the underlying facts which

support ed the deficiencies. However, P etitioner suggests tha t

these are relatively minor errors which occurred because a staff

member was very nervous due to the surveyors being present and

following them while dispensing medications. Notably, the staff

person who was involved in the majority of the MOR errors and

medication delays did not testify.

41 . Petitioner also argues that many of the deficiencies

cited are based upon the same fa cts . For example , there are

several deficiencies related to the incident of a pill being

found on the floor. However, as explain ed by Forrester, factual

observations may be listed repeatedly because they demonstrate

different areas of non - compliance with laws or rules. The s ame

incident may be referenced in support of different tag numbers

because there are a variety of laws and r ules involved.

Notice of Intent to Deny

4 2 . After reviewing the results of Petitioner's re -

licensure survey, Alfred met with Haston to discuss Petitioner's

re - licensure application. Haston reviewed the results and saw

there were two Class II and eight Cl ass III violations. Although

Haston wanted Petitioner's facility to remain open because he

believes Mrs. Spaw "takes care of patients no one else wants" and

there is a need for LMH beds in Petitioner's area, Haston decided

to deny re - licensure based upon the failed survey, the

outstanding fine from Serenity Gardens , and the fact that the

license of Serenity Gardens was revoked.

4 3 . AHCA issued a Notice of Intent to Deny on October 2,

2013 , and explained that the denial was based upon the failed

biennial r e - licensure survey, the outstanding fine imposed by

Final Order on March 30, 2012 , and that the applicant (Mrs. Spaw

on behalf of P etitioner) had a controlling interest in Serenity

Gardens, a facility which had its license revoked by Final Order .

CONCLUSIO NS OF LAW

4 4 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 & 120.57, Fla. Stat.

4 5 . As an applicant for a license, Petitioner bears the

burden of proof in this proceeding to demons trate by a

preponderance of the evidence that it satisfied all the

requirements for licensure and was entitled to receive the

license . Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So.

2d 932 (Fla. 1996) ; N.W. Dep't of Child . & Fam . Servs. , 981 So.

2d 599 (Fla. 3rd DCA 2008) . 5/

4 6 . Holding an ALF license is a privilege and not a right

under Florida law. Section 429.01(3) states in pertinent part,

"the principle that a license issued under this part is a public

trust and a privilege and is not an en titlement should guide the

finder of fact or trier of law at any administrative proceeding

or in a court action initiated by the Agency for Health Care

Administration to enforce this part."

4 7 . Section 429.14(3) provides:

The agency may deny a license to any

applicant or controlling interest as defined

in part II of chapter 408 which has or had a

25 - percent or greater financial or ownership

interest in any other facility licensed under

this part, or in any entity licensed by this

state or another state to provide health or

residential care, which facility or entity

during the five years prior to the

application for a license closed due to

financial inability to operate; had a

receiver appointed or a license denied,

suspended, or revoked; was subject to a

mo ratorium, or had an injunctive proceeding

initiated against it.

4 8 . As stipulated by the parties, Mrs. Spaw is a

controlling interest of Petitioner and was a controlling interest

with more than 25 percent ownership interest in Serenity Gardens Ï

a facility which had its license revoked within the last five

years. As such, AHCA has the discretion to deny the renewal

application of Petitioner on this basis alone.

4 9 . In relevant part, section 408.831(1) provides:

In addition to any other remedies provided by

law, the agency may deny each application or

suspend or revoke each license, registration,

or certificate of entities regulated or

licensed by it:

(a) I f the applicant, licensee, or a

licensee subject to this part which shares a

common controlling int erest with the

applicant has failed to pay all outstanding

fines, liens, or overpayments assessed by

final order of agency or final order of the

centers for Medicare and Medicaid services,

not subject to further appeal, unless a

repayment plan is approved by the agency.

50 . As discussed herein, it was undisputed that Serenity

Gardens had an outstanding fine of $5 , 000 .00 which is not subject

to further appeal and which remained unpaid as of the date of the

final hearing in this proceeding. Accordingly, AH CA has the

discretion to deny the renewal application of Petitioner solely

for this reason.

51 . Understanding that Petitioner serves a vulnerable

population , which will likely struggle with finding a new place

to live if P etitioner is closed as a result o f denial of its

renewal application, AHCA chose not to immediately deny the

renewal application based upon the closure of S erenity Gardens or

the outstanding fine. Rather, Haston waited for the results of

the biennial licensure survey to make a recommenda tion with

regard to the renewal application.

52 . One of the requirements for renewal licensure is a

demonstration of compliance during a re - licensure survey.

53 . Section 429.17(2) states in pertinent part:

A license shall be renewed in accordance with

pa rt II of chapter 408 and the provision of

satisfactory proof of ability to operate and

conduct the facility in accordance with the

requirements of this part and adopted rules,

including proof that the facility has

received a satisfactory fire safety

inspec tion, conducted by the local authority

having jurisdiction or the State Fire

Marshal, within the preceding 12 months.

54 . In accordance with section 408.806(7)(a), "an applicant

must demonstrate compliance with the requirements in this part,

authorizing statutes, and applicable rules during an inspection

pursuant to s. 408.811, as required by authorizing statutes."

55 . Here, Petitioner did not supply any evidence

establishing that it had met this requirement. To the contrary,

each of PetitionerÓs witnes ses admitted that , at the time of the

re - licensure survey, the facility was not in compliance with

various statu t es and rules. Furthermore, as discussed herein,

the facility was properly cited for ten separate violations of

Florida law.

56 . The fact that several violations were reclassified from

Class III violations to more serious Class II violations does not

alleviate the fact that , regardless of the classification of

these violations, these deficiencies demonstrate that Petitioner

was not in compliance with the applicable rules at the time of

the biennial re - licensure survey. Nor does the fact that

Petitioner immediately took steps to come into compliance after

issuance of the survey report or the fact that AHCA did not

conduct a re - inspection , diminis h the fact that AHCA could have

denied the re - licensure application solely on the basis of the

closure of Serenity Gardens or the outstanding $5,000.00 fine.

57 . Petitioner failed to demonstrate, by a preponderance of

the evidence, that it met the applica ble re - licensure

requirements and that it is entitled to a renewal of its license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Administration enter a final order upholding the denial of

P etitioner's licensure renewal application.

DONE AND ENTERED this 23rd day of May , 2014 , in Tallahassee,

Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Division of Administrative Hearings

T he 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 23rd day of May , 2014 .

ENDNOTE S

1/ Class II v iolations are those conditions or occurrences

related to the operation and maintenance of a provider or to the

care of clients which the agency determines directly threaten the

physical or emotional health, safety, or security of the clients,

other than Cl ass I violations. Class III 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 him directly or potentially threaten ed the

physical or emotional health , safety, or security of clients,

other than Class I or Class II violations.

§ 408.813(2)(b) and (c) , Fla. Stat.

2/ This explanation was contradicted at final hearing by

Mrs. Spaw and Holli Raven who attributed the delay in timely

providing medications t o residents on the staff member being

"nervous" due to the surveyor looking over her shoulder with a

laptop in his hand. Both Forrester and Fr i as testified that they

conducted this investigation in the same manner as they conduct

all other surveys and sat in order to observe staff members

dispensing medications, they necessarily have to stand close to

the staff member and the resident. Mrs. Spaw and the staff

member also suggested that the delay in providing medications was

due to the implementation of a new medication dispensing system

that the facility has since abandoned. Regardless of the reason

for delay the fact that medications were dispensed outside the

time frame prescribed by physicians was uncontroverted.

3 / There was conflicting testimony at the hearing regarding

whether at the exit interview all of the deficiencies were

discussed or only a few. Regardless of the extent of the

conversation, there was no dispute that the surveyors made it

clear that their findings were made subject to supervi sory

review , and Petitioner received a copy of the formal results in

the "Statement of Deficiencies," Respondent's Exhibit 1, by hand

delivery on June 20, 2013.

4 / At final hearing, AHCA stipulated that there have been

occasions when the same t ag number resulted in a Class III rather

than a Class II violation. This information is of limited

relevance because no witness testified regarding the

circumstances surrounding these violations at other facilities .

5/ Petitioner's contention, that a "clear and c onvincing"

standard of proof applies to the analysis of this case, is

rejected. This is not a disciplinary proceeding to revoke the

license of Petitioner. Rather, this proceeding is to determine

whether Petitioner demonstrated by a preponderance of the

e vidence that it met the criteria applicable for re - licensure .

COPIES FURNISHED:

John E. Bradley, Esquire

Agency for Health Care Administration

Fort Knox Building, Mail Stop 3

2727 Mahan Drive, Suite 3431

Tallahassee , Florida 3 2 30 8

Aram Caldarera Bloom , Esquire

Shapiro, Blasi, Wasserman and Gora, P.A.

7777 Glades Road , Suite 400

Boca Raton, Florida 33434

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health 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 SU BMIT 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.