14-001339 Agency For Health Care Administration vs. Avalon's Assisted Living, Llc, D/B/A Avalon's Assisted Living, D/B/A Avalon's Assisted Living At Avalon Park Status: Closed Recommended Order on Wednesday, January 21, 2015.

Summary: AHCA proved by clear and convincing evidence that ALF was not in compliance and should not have license renewed. Fines assessed for violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AVALON ' S ASSISTED LIVING, LLC,

d/b/a AVALON ' S ASSISTED LIVING,

Petitioner,

vs. Case No . 14 - 0610

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

AGENCY FOR HEALTH CARE

ADMINISTRATION ,

Petitioner,

vs. Case No. 14 - 1339

AVALON ' S ASSISTED LIVING, LLC,

d/b/a AVALON ' S ASSISTED LIVING,

d/b/a AVALON ' S ASSISTED LIVING

AT AVALON PARK ,

Respondent.

_______________________________/

R ECOMMENDED ORDER

On August 19 through 2 1 , 2014, a final administrative

hearing was held in these cases in Orlando, Florida, before

J. Lawrence Johnston, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner Agency f or Health Care Administration:

Thomas J. Walsh, II, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330G

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Edwin David Selby, Esquire

Agency for Health Care Administratio n

Sebring Building, Third Floor, Room 330

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

For Respondent Avalon ' s Assisted Living, LLC:

John E. Terrel, Esquire

John E. Terrel, P.A.

Suite 11 - 116

1700 North Monroe Street

Tallahassee, Fl orida 32303

STATEMENT OF THE ISSUE S

The issues in these cases are whether the Agency for Health

Care Administration (AHCA or Agency ) should renew the assisted

living facility (ALF) and limited nursing services (LNS) licenses

held by Avalon ' s Assisted Liv ing, LLC, d/b/a Avalon ' s Assisted

Living (Avalon), and whether AHCA should fine Avalon for alleged

statutory and rule violations.

PRELIMINARY STATEMENT

In February 2013, Avalon applied to AHCA to renew its

biennial ALF and LNS licenses for 2013 and 2014. In December

2013, AHCA gave Avalon notice that it intended to deny the

application on several statutory grounds. Avalon requested a

hearing, and the matter was referred to the Division of

Administrative Hearings (DOAH) , where it was designated DOAH

C ase 14 - 0610.

AHCA also filed an Administrative Complaint against Avalon

alleging several statutory and rule violations that made up some

of the grounds for denying license renewal. Avalon requested a

hearing, and the matter was referred to DOAH, designated DOAH

C ase 14 - 1339, and consolidated with DOAH C ase 14 - 0610.

AHCA ' s notice of intent to deny (NOID) was based on:

deficiencies from 2010 that were cited in a biennial survey done

in 2012 when Avalon applied to renew its biennial licenses for

2010 through 2012; 1/ deficiencies from 2013 that were cited in the

biennial survey done in July 2013 for the renewal application for

2013 - 2014; deficiencies cited in a complaint investigation

initiated in September 2013 as a result of an incident that

occurred while t he deficiencies cited in the July 2013 survey

were pending, not having been corrected and cleared; deficiencies

cited in a complaint investigation initiated in October 2013,

while the September 2013 complaint investigation was still

pending; and the denial of an application for licensure filed by

Avalon ' s Assisted Living III (Avalon III), which was controlled

by individuals having a controlling interest in Avalon. Prior to

the final hearing, Avalon moved in limine to preclude AHCA from

relying on the 2010 deficiencies because they were corrected and

Avalon ' s licenses were renewed for 2010 through 2012. In

response to the Motion i n Limine , AHCA dropped the 2010

deficiencies and any reliance on them from its grounds for

denying renewal of Avalon ' s licenses i n this case.

AHCA ' s Administrative Complaint (DOAH C ase 14 - 1339) is based

on essentially the September and October 2013 complaint

investigations.

At the final hearing, AHCA presented the testimony of the

following witnesses: Michael D . , son of D.D., t he alleged victim

in the October 2013 complaint investigation; Mary Loftus, a

Florida Hospital social worker who was involved in the discharge

of R.M., the alleged victim in the September 2013 complaint

investigation; Vilma Pellot, an AHCA surveyor who was involved in

the 2013 biennial survey and the October 2013 complaint

investigation; Myrtus Furbert, who worked on the staff of

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

(Avalon II), which was controlled by individuals having a

contro lling interest in Avalon and Avalon III , and who testified

regarding the September 2013 complaint investigation; Renee

Fortinberry, an Orange County Sheriff ' s Office detective who

testified regarding the September 2013 investigation; Kathleen

Carroll, an A HCA surveyor and complaint investigator who

testified regarding the 2013 biennial survey and September 2013

complaint investigation; Colleen Monroe, R.N., an AHCA surveyor

and complaint investigator who testified regarding the 2013

biennial survey and Sept ember 2013 complaint investigation;

Lorraine Henry, an AHCA supervisor over the Orland o field office ,

responsible for the surveys and complaint investigations at issue

in this case; and Catherine Avery, R.N., who works in AHCA ' s

Tallahassee headquarters as an ALF manager, oversees the Orlando

field office regarding its activities in regard to this case, and

represented AHCA ' s position on the NOID and Administrative

Complaint in this case. Agency Exhibits 1 through 21 were

received in evidence. 2/

Avalon ca lled Mr. Robert Walker, Jr., and Mrs. Chiqquittia

Carter - Walker in its case - in - chief. Avalon also was allowed to

cross - examine some of AHCA ' s witnesses beyond the scope of direct

as part of Avalon ' s case - in - chief. Avalon Exhibits 1 through 4,

7 through 1 1, 16, 19, and 20 were received in evidence. Avalon

Exhibit 2 is the deposition of Mary Bowen, an AHCA health

services and facilities consultant, which was received in lieu of

in - person testimony. Avalon also was allowed to submit,

post - hearing and in li eu of live testimony, the transcript of the

pre - hearing deposition of Hazel Pinard - Davis, R.N., who worked at

Avalon, subject to the ruling on AHCA ' s objections. AHCA moved

to strike the deposition transcript when it was filed, and the

motion to strike wa s denied.

A Transcript of the final hearing was filed on October 16,

2014, and unopposed motions to extend the time for filing

proposed recommended orders were granted. The parties ' proposed

recommended orders filed on December 18, 2014, have been

consi dered in the preparation of this Recommended Order.

FINDING S OF FACT

1. Avalon ' s Assisted Living, LLC, d/b/a Avalon ' s Assisted

Living (Avalon) holds a biennial assisted living facility (ALF)

and limited nursing services (LNS) license issued by AHCA.

Ava lon ' s ALF is in a residence at 1250 Willow Branch Drive in

Orlando, Florida. It has a licensed capacity of six beds. There

are six bedrooms in the residence. Four are designated as

" licensed " on the ALF ' s floor plan. Two bedrooms are designated

as " unl icensed. " In February 2013, Avalon applied to AHCA to

renew its license for the years 2013 through 2014. 3/

2. In July 2013, AHCA conducted a biennial survey to

determine whether Avalon ' s license should be renewed. Several

deficiencies were noted, inc luding: Tag A0007, Class III,

admitting a resident who was ineligible due to inability to

transfer from bed to wheelchair with assistance; Tag A0008,

Class III, a missing AHCA F orm 1823 health assessment; Tag A0009,

Class IV, failure to have a resident si gn a contract for six

months after admission; Tag A0030, Class III, using bedrails

without a doctor ' s order to confine a resident in bed; Tag A0076,

Class III, not having a written policy requiring staff to

immediately contact hospice if a resident receivi ng hospice

services suffers cardiopulmonary arrest; Tag A0083, Class III,

not having documentation that staff on duty had current CPR and

first - aid training; and Tag A0162, Class III, not having

documentation of a resident ' s informed consent as to whether a

nurse would oversee Avalon ' s assistance with self - administration

of medication. Avalon did not take issue with the deficiencies

or classifications at the time and took prompt action to correct

them. 4/

3. In September 2013, AHCA conducted a follow - up survey,

which disclosed that the deficiencies noted in July 2013 were

corrected or no longer existed. As a result, Avalon was not

fined for those deficiencies. However, during the follow - up

survey, it came to the attention of AHCA that an individual,

id entified by his initials, R.M., to preserve confidentiality,

went missing from an ALF operated nearby at 13230 Early Frost

Circle by Avalon ' s Assisted Living II, LLC, d/b/a Avalon ' s

Assisted Living II (Avalon II). Avalon and Avalon II had the

same adminis trator, Chiqquit t ia Carter - Walker, who had a

controlling interest in both facilities. R.M. could not be found

despite an all - out police search. As a result, AHCA initiated a

complaint investigation and declined to grant Avalon ' s renewal

application pendi ng completion of the investigation. 5/

4. In October 2013, while the September 2013 incident was

being investigated, another apparent deficiency came to the

attention of AHCA ' s surveyors. They noticed that an 81 - year - old

resident of Avalon ' s ALF, who i s identified by her initials,

D.D., to preserve confidentiality, had metal surgical staples in

her scalp from her forehead to the crown of her head. There

appeared to be dried blood around the staples. At about this

time, Avalon ' s administrator, Mrs. Car ter - Walker, observed that

D.D. was unable to transfer from bed to wheelchair, which was not

normal for her, and appropriately decided to arrange for the

resident to be taken to the hospital by ambulance. Further

investigation into the metal staples reveal ed to the surveyors

that they had been placed in the resident ' s scalp when she was

hospitalized in July 2013 for medical attention to a head wound

incurred when she fell while a resident of Avalon. AHCA

initiated a complaint investigation into the reason why the

staples remained in the resident ' s scalp for three months, which

became another reason for AHCA ' s denial of Avalon ' s renewal

application pending completion of the investigation.

September 2013 Complaint Investigation Re garding R.M.

5. The R.M. i nvestigation resulted in six alleged

deficiencies: Tag A025 (Resident Care - Supervision), Class II,

inadequate resident care and supervision; Tag A0004 (Licensure -

Requirements), unclassified, placing R.M. in an unlicensed room

and/or exceeding licensed bed capacity at Avalon ' s ALF; Tag A077

( Staffing Standards - Administrators), Class III, inadequate

supervision of the ALF by the administrator; Tag A079 (Staffing

Standards - Levels), Class III, inadequate staffing for the

residents, including R.M.; Tag A160 (Records - Facility),

Class III, not listing R.M. as a resident on the

admission/discharge log; Tag A167 (Resident Contracts),

Class III, not having a resident contract for R.M.; Tag A190

(Administrative Enforcement), Class III, having staff not

coope rate with AHCA ' s investigation; and Tag AZ815 (Background

Screening; Prohibited Offenses), unclassified, letting Robert

Walker provide personal care or services directly to R.M. after

being arrested and awaiting disposition on several felony

charges.

6. Essential to all of the charges arising out of the

September complaint investigation is R.M. ' s alleged status as a

resident. Avalon ' s position is that he was a non - resident renter

of one of the unlicensed beds, not a resident of its ALF.

7. Avalon ' s f irst contact with R.M. was through the

discharge staff at Florida Hospital, where he had been admitted

after being involuntarily committed under the Baker Act. After

telephonic communication about whether Avalon could accept R.M.

as a resident in its ALF, Mrs. Carter - Walker and her husband,

Robert Walker, went to the hospital on July 19, 2013, to meet

Mary Loftus, a social worker on the hospital ' s discharge team,

and R.M. At the time, Mr. Walker had pending felony charges that

disqualified him from workin g at the ALF or having direct contact

with residents. 6/ During the meeting , R.M. was cooperative,

pleasant, with euthymic (normal) mood and constricted affect, and

some confusion in thought process. R.M. ' s participation ended

when he agreed to go to Aval on ' s ALF and stated he would look

forward to seeing Mrs. Carter - Walker and her husband on the

following Monday. The social worker then further discussed the

discharge plan with Mrs. Carter - Walker and her husband and noted

R.M. ' s " exit - seeking behavior " up on admission at the hospital -

meaning, he would try to leave the hospital without being

discharged. They also discussed finances, including R.M. ' s

$1,400 a month Social Security benefit and possible eligibility

for Veteran Administration benefits, and R. M. ' s nearest

relatives, his foster " son " and his " daughter - in - law, " Jacqueline

Renea Fulcher, who lived in Polk County. The social worker then

telephoned to arrange for Mrs. Fulcher also to be at the hospital

for the planned discharge.

8. When Mrs. Car ter - Walker and her husband arrived at the

hospital for the discharge on July 23, 2013, they were given an

AHCA F orm 1823, signed by R.M. ' s psychiatrist the day before.

The form stated R.M. ' s needs could be met in an ALF that is not a

medical, nursing, or psychiatric facility. The form stated that

R.M. was born in 1934, had dementia, was forgetful, required fall

precautions, required daily observation for his well - being and

whereabouts, and required daily reminders for important tasks.

The form also liste d R.M. ' s medications, including 81 mg aspirin,

10 mg simvastatin, 25 mg sertraline, and 50 mg hydroxyzine

hydrochloride. The form stated that R.M. did not need help with

taking his medications and could use a pill box. The form stated

that R.M. could mak e phone calls independently and could prepare

meals, shop, and handle personal and financial affairs with

assistance.

9. From the discussions and F orm 1823, it was clear to the

Florida Hospital discharge team that R.M. was being discharged to

Avalon ' s ALF. 7/ This also was the clear understanding of

Mrs. Fulcher. She had asked for a letter signed by R.M. ' s

psychiatrist to use when they went to the bank to access R.M. ' s

funds to pay for the ALF. She thought she would need it to

explain to bank official s in the event R.M. acted out. She

understood that is what happened when staff of R.M. ' s previous

ALF, Sunrise, took him to the bank to access his funds, which

resulted in his involuntary commitment and admission to Florida

Hospital on July 3, 2013. The letter she received stated that

R.M. was diagnosed with dementia disorder with behavioral

disturbances and mood disorder and was unable to make decisions

for daily living.

10. R.M. was discharged to Avalon ' s ALF on July 23, 2013.

Mrs. Carter - Walker and her husband drove to Florida Hospital to

pick R.M. up and drive him to the ALF. R.M. got into the vehicle

with them, and Mr. Walker drove. 8/ Mrs. Fulcher followed in her

car. They made a stop at a Walmart to get clothing for R.M.

While Mrs. Fulcher was parking her car, the other vehicle parked,

and R.M. jumped out and walked quickly or ran into the store,

away from Mrs. Carter - Walker and her husband. Mrs. Fulcher went

into the store after R.M., who seemed agitated and did not seem

to know or trust them . Mrs. Fulcher tried to calm him down and

explain the situation to him. It was decided that R.M. should

continue on in Mrs. Fulcher ' s car. They then stopped at a bank

to try to access R.M. 's funds to pay Avalon, but they were

unsuccessful in doing so be cause they did not have acceptable

identification for R.M. From there, they continued on to

Avalon, 9/ where Mrs. Fulcher was shown the room R.M. would be

staying in, and they discussed R.M. ' s medications, which

Mrs. Carter - Walker said she would obtain fro m the pharmacy, and

his identification, which Mr. Walker said he would retrieve from

Sunrise ALF.

11. The next day, Mrs. Fulcher was supposed to return to

the bank with R.M. and his identification to obtain funds to pay

Avalon, but she had a family med ical emergency and had to fly to

Virginia, where she remained for two weeks. When she returned ,

she tried to contact Avalon by telephone and left messages but

did not get a call back from Avalon.

12. On August 22, 2013, R.M. signed a document making

Mrs . Carter - Walker his Social Security benefit payee, and she

began receiving his Social Security benefits at Avalon. At some

point in time, she generated statements showing that Avalon was

charging R.M., as " tenant, " $774.10 as rent for July 2013 (at the

mo nthly rental rate of $2,000, prorated), and $2,400 for August

and September 2013 (at the monthly rental rate of $2,400).

13. While AHCA surveyors were at Avalon on Willow Branch

Drive on September 11, 2013, conducting a follow - up survey on the

deficienc ies noted in July 2013, they learned that R.M. had

walked away from Avalon II ' s ALF on Early Frost Circle, refused

to come back when asked by the sole staff on duty at the time,

did not return, and could not be found despite an all - out police

search. Aval on ' s staff denied having any knowledge about R.M.

and deferred all questions to Mrs. Carter - Walker. Mrs. Carter -

Walker took the position that R.M. was not a resident of Avalon.

She testified that she conducted her own assessment of R.M. and,

without noti fying either Florida Hospital or Mrs. Fulcher,

determined that he did not require the services of an ALF but

could be an independent renter of one of Avalon ' s unlicensed

beds. She showed surveyors a pillbox she said R.M. used

independently for his medicat ions.

14. The position taken by Avalon as to R.M. 's status is

inconsistent with clear and convincing evidence to the contrary.

Myrtus Furbert was the sole staff on duty at Avalon II on

September 10, 2013. She testified that R.M. spent the previous

nig ht there, having been brought there by Mrs. Carter - Walker with

a bag of clothing , but no medications. When Ms. Furbert asked

about his medications, Mrs. Carter - Walker told her he had no

medications because Avalon was not being reimbursed for them.

R.M. h ad no cell phone, wallet, or personal or ALF identification

because Mrs. Carter - Walker did not trust him not to lose them.

He also did not have a key to either Avalon on Willow Branch

Drive or Avalon II on Early Frost Circle. When R.M. absconded,

Ms. Fur bert notified Mrs. Carter - Walker, who notified the police,

essentially following Avalon ' s elopement policy for ALF

residents.

15. Ms. Furbert also testified convincingly that she and

other staff were instructed by Mrs. Carter - Walker to be cautious

about discussing potential deficiencies with surveyors and to

defer those kinds of questions, and in particular questions

regarding R.M., to her. Consistent with that testimony, staff at

Avalon told AHCA ' s surveyors that they knew nothing about R.M.,

and Ms. F urbert was not forthright initially when questioned

about him. Mrs. Carter - Walker testified, and Avalon took the

position, that staff did not know anything about R.M. because he

was an independent boarder, not an ALF resident. Her testimony

and Avalon ' s position are rejected as implausible and contrary to

the clear and convincing evidence to the contrary.

16. R.M. was a resident of Avalon ' s ALF, notwithstanding

Avalon ' s position to the contrary and its failure to give him the

services he should have h ad.

17. The facts alleged in the deficiency tags arising out of

the September 2013 complaint investigation were proven by clear

and convincing evidence.

October 2013 Complaint Investigation Regarding D.D.

18. Avalon gave excuses for not having the m etal staples

removed from D.D. ' s scalp for over three months. Mrs. Carter -

Walker testified that the doctor who came monthly to Avalon ' s ALF

stopped accepting D.D. ' s insurance and that she tried to

telephone D.D. ' s son to get the name of her doctor, got no answer

at first, and later talked to him and learned that D.D. had no

other doctor. She testified that she then asked the Florida

Hospital doctor who placed the staples to remove them, but that

doctor declined. She testified that she did not take D.D. t o a

walk - in clinic or emergency room to have the staples removed

because D.D. ' s son had a durable power of attorney, and he would

have to be present to authorize the removal of the staples.

19. D.D. ' s son did not recall getting any telephone calls

from Mrs. Carter - Walker before October 10, 2013, and that he

first learned about the staples when he went to Florida Hospital

the next day. His testimony was clear and convincing and is

accepted. Her testimony was self - serving and is rejected , if it

was inte nded to mean that she took appropriate steps to notify

the son about the staples and ask him to give consent to have

them removed prior to October 10, 2013.

20. The evidence was clear and convincing that it was

inappropriate medically for the staples to remain in D.D. ' s scalp

for three months. Although there was no clear and convincing

evidence that the staples caused an infection or that skin grew

over them so as to require additional surgery to remove them,

both were possible results from leaving the staples in too long.

21. D.D . ' s son relied on Avalon to care for his mother.

Avalon should have taken appropriate steps to have the staples

removed before October 10, 2013.

Pattern of Deficient Performance

22. The tags noted in the July 2013 re - li censure survey

reflect several relatively minor deficiencies, some little more

than paperwork deficiencies, which were corrected promptly. They

do not, in themselves, reflect a pattern of deficient

performance.

23. The tags from the September 2013 comp laint

investigation involving R.M. arose from an isolated incident, in

that there was no evidence that any resident eloped before or

since. However, the tags include more than just an elopement.

The deficiencies actually arose from a decision by Mrs. Car ter -

Walker, whether before or after the elopement, not to treat R.M.

appropriately as an ALF resident or provide the ALF services he

should have been given, while she and Avalon collected R.M. ' s

Social Security benefits intended to pay for those services.

Avalon ' s decision was not disclosed to Florida Hospital, to

Mrs. Fulcher, or to AHCA. This decision contributed to R.M. ' s

ultimate elopement. When Avalon ' s actions were disclosed through

R.M. ' s elopement, Mrs. Carter - Walker attempted to manage the

conse quences through her instructions to her ALF staff not to

provide certain information to AHCA ' s surveyors , except through

her.

24. The tags from the October 2013 complaint investigation

involving D.D. arose from an isolated incident, in that there was

n o evidence that any resident was medically neglected before or

since. However, these deficiencies also arose from a decision by

Mrs. Carter - Walker not to provide the ALF services D.D. should

have been given. D.D. ' s son, who was her health care surrogate,

was not kept apprised of D.D. ' s medical condition or asked to

cooperate in having the metal staples removed from his mother ' s

scalp. Avalon also did not disclose metal staples to AHCA

directly or by making reference to them in D.D. ' s ALF records.

AHCA h appened to become aware of them when its surveyors happened

to notice the staples while they and Mrs. Carter - Walker were

attending to D.D. for an apparent change in her medical condition

that occurred while a survey was being conducted. When the

staples w ere noticed and investigated, Mrs. Carter - Walker and

Avalon attempted to avoid responsibility by blaming D.D. ' s son

and her Florida Hospital doctor.

25. The tags arising out of the R.M. and D.D.

investigations, while relatively small in number, reflect a

troubling pattern of deficient performance involving inadequate

supervision and lack of appropriate attention to the needs of ALF

residents, together with attempts to hide the deficient

performance from family members and AHCA, and the development of

an unhealthy relationship with the AHCA surveyors and regulators

that has resulted in a mutual lack of trust.

Avalon III Amended Final Order

26. Mrs. Carter - Walker had a controlling interest in Avalon

and in Avalon III, which applied for a license to ope rate an ALF

at a third location in Orlando. AHCA gave notice of intent to

deny the application for licensure on several grounds, including:

unlicensed operation of an ALF at 1812 Crown Hill Boulevard in

Orlando in July and August 2009; expiration of the applicant ' s

lease on the facility to be licensed; and the disqualification of

Mr. Walker, who was a controlling interest, administrator , and

financial officer on the application.

27. Avalon III requested a hearing, and a Recommended Order

of Dismissal was entered on the ground that Mrs. Carter - Walker

and Mr. Walker took the Fifth and declined to answer discovery

questions relevant to the grounds for denial of Avalon III ' s

application. As a result, Avalon III essentially chose not to

meet its burden to prove entitlement to licensure. The

Recommended Order of Dismissal was adopted in an Agency Amended

Final Order. Avalon III appealed, and the First District Court

of Appeal issued a per curiam affirmance on December 17, 2014.

Avalon, etc. v. AHCA , Case 1D13 - 5972, per curiam aff ' d (Fla. 1st

DCA Dec. 17, 2014). There was no request for rehearing, and the

M andate issued on January 5, 2015. Id.

CONCLUSIONS OF LAW

28. This case combines the denial of an application to

renew an ALF and LNS license on variou s grounds ( DOAH Case

14 - 0610) and an Administrative Complaint to assess fines on some

of the same grounds ( DOAH Case 14 - 1339). A threshold legal issue

to be determined is the burden of proof to apply.

Burden of Proof

29. AHCA takes the position that bec ause section 429.01(3),

Florida Statutes (2013) , 10/ makes an ALF license " a public trust

and a privilege and . . . not an entitlement " and states that

this principle should guide the trier of fact, the burden of

proof is on Avalon to prove compliance with all applicable

statutes and rules and to prove entitlement to renewal of its

license in DOAH Case 14 - 0610. Avalon takes the position that the

burden is on AHCA to prove alleged violations by clear and

convincing evidence.

30. Davis Family Daycare Home v. Department of Children and

Family Services , 117 So. 3d 464, 467 - 69 (Fla. 2d DCA 2013), was a

case in which the Department of Children and Family Services

(DCF) denied an application to " step up " from a family daycare to

a large daycare license and took the position that its only

burden in the disputed - fact hearing was to present competent,

substantial evidence of alleged violations. The court rejected

DCF ' s position and held that DCF had the burden to prove alleged

violations by clear and convincing ev idence. The court saw a

direct conflict with Haines v. Department of Children and

Families , 983 So. 2d 602, 607 (Fla. 5th DCA 2008), which held

that the preponderance of the evidence standard applied in a

license revocation proceeding, and certified the q uestion to the

Florida Supreme Court, which has accepted jurisdiction. Dep ' t of

Child . & Fam . Servs. v. Davis Fam . Daycare Home , 130 So. 3d 691

(Fla. 2013).

31. If the Supreme Court rules on the certified direct

conflict between the second and fifth di strict courts, it is

unclear whether it will address the interplay between that

conflict (i.e., as to the standard of proof on the governmental

agency to prove alleged violations) and the concept of the

" ultimate burden of persuasion, " which the Supreme Co urt has held

remains on a license applicant. Dep ' t of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996). In N.W. v.

Department of Children and Family Services , 981 So. 2d 599 (Fla.

3d DCA 2008), it was held that the ultimate burden o f persuasion

remains on the applicant for a renewal license. In Coke v.

Department of Children and Family Services , 704 So. 2d 726 (Fla.

5th DCA 1998), it was held that the burden of proof is on the

agency denying an application for a renewal license to p rove the

violations that were the grounds for denial. On this point, the

court in Davis Family Daycare Home noted the similarity between a

license renewal application and an application to step up to a

higher level of a license -- namely, in both cases, the agency

previously found the applicant worthy of licensure. It also

noted that the Davis Family Daycare Home proceeding w as initiated

by the filing of a " self - proclaimed administrative complaint " and

w as determined by the agency to be disciplinary in natu re, which

made section 120.57(1) (j) , Florida Statutes, applicable:

" Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure disciplinary proceedings .

. . . " Based on those factors, which are similar , if not

ide ntical , to the facts of this case, the Davis Family Daycare

Home court placed the burden of proof on DCF.

32. The best way to reconcile and harmonize the conflicting

decisions on the burden and standard of proof is to place the

burden on AHCA to prove alleged violations by clear and

convincing evidence and, if it does, allow Avalon to prove by a

preponderance of the evidence that its license should be renewed,

notwithstanding any violations that are proven.

33. It is clear that the burden in DOAH Ca se 14 - 1339 is on

AHCA to prove the allegations in its Administrative Complaint by

clear and convincing evidence. Dep ' t of Banking & Fin. v.

Osborne Stern & Co. , supra ; Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

34. The Supreme Court has stated:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence mu st be of such

a 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.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

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

License Renewal Requirements

35. An applicant for renewal of an ALF license must

demonstrate compliance with " this part [II of chapter 408,

Florida Statutes, the licensing statute], authorizing statutes,

and applicable rules during an inspection pursuant to section

408.811, as required by authorizing statutes . " § 408.806(7)(a),

Fla. Stat. Section 408.811(1)(b) provides for re - licensure

inspections " biennially unless otherwise specified by authorizing

statute s or applicable rules. " The July 2013 survey was the

biennial inspection for Avalon ' s renewal application that is the

subject of DOAH C ase 14 - 0610. Although the deficiencies noted in

the July 2013 survey were corrected and cleared by the end of

September 2013, it was not possible for AHCA to conclude that

Avalon was in compliance with part II, authorizing statutes, and

applicable rules because the September 2013 complaint

investigation regarding R.M. had been opened and was pending.

Before that investiga tion was concluded, another complaint

investigation was opened regarding D.D. It could not be

concluded that Avalon was in compliance with part II, authorizing

statutes, and applicable rules until both those investigation s

were completed.

September 2013 Complaint Investigation Regarding R.M.

36. Avalon is an ALF. § 429.02(5), Fla. Stat. R.M. was a

resident. § 429.02(19) , Fla. Stat . He was discharged from

Florida Hospital to Avalon. Avalon accepted him as a resident.

Avalon did not notify Florida Hospital, AHCA, or R.M. ' s nearest

relative that it was not accepting R.M. as a resident.

37. Avalon was required to provide R.M. with care and

services appropriate to his needs. Fla. Admin. Code

R. 58A - 5.0182. 11/ This included personal supervision. I d.

a t ( 1 ) . Personal supervision includes: daily observation by

designated staff and awareness of the general health, safety, and

physical and emotional well - being of the resident; general

awareness of the resident ' s whereabouts; contacting the

resident ' s health care provider and other appropriate parties,

such as the resident ' s family, guardian, health care surrogate,

or case manager if the resident exhibits a significant change, is

discharged, or moves out; maintaining a written record, updated

as needed , of any significant changes, any illnesses that

resulted in medical attention, changes in the method of

medication administration, or other changes that resulted in the

provision of additional services. Id. at (b) - (e). An ALF is

required to offer superv ision of or assistance with activities

of daily living (ADLs) as needed by the resident. Fla. Admin.

Code R. 58A - 5.0182(4). Supervision means reminding residents to

engage in ADLs and the self - administration of medication and,

when necessary, observing o r providing verbal cuing.

§ 429.02(23) , Fla. Stat . All residents assessed at risk for

elopement or with any history of elopement must be identified so

staff can be alerted to their needs for support and supervision.

Fla. Admin. Code R. 58A - 5.0182(8)(a). An ALF must make, at a

minimum, a daily effort to determine that at - risk residents have

identification on their persons that includes their name and

the facility ' s name, address, and telephone number; staff

attention must be directed towards residents as sessed at high

risk for elopement. Id. at 1.

38. The evidence was clear and convincing that Avalon was

not in compliance with these requirements, which resulted in Tag

A025 (Resident Care - Supervision). This was a Class II

violation because it direc tly threatened R.M. ' s physical or

emotional health, safety, or security (but was not a Class I

violation because it did not present an imminent danger to R.M.

or a substantial probability that death or serious physical or

emotional harm would result) . § 4 08.813(2)(a) - (b) , Fla. Stat .

39. Rule 58A - 5.016(3) prohibits a change in the use of

space that increases or decreases a facility ' s capacity, without

prior approval from AHCA ' s Central Office . Rule 58A - 5.016(4)

prohibits converting an area to resident u se not previously

inspected for such use, without prior approval from AHCA ' s Field

Office . The evidence was clear and convincing that Avalon

violated these rules by placing R.M. in an unlicensed bedroom,

which resulted in Tag A077 (Staffing Standards - Ad ministrators).

This was an unclassified violation under section 408.813(2).

40. Rule 58A - 5.019(4) sets out staffing standards that

required 212 staff hours for the seven Avalon residents

(including R.M.) in September 2013 and also required a written

wo rk schedule reflecting Avalon ' s 24 - hour staffing pattern. The

evidence was clear and convincing that Avalon was not in

compliance with this rule, resulting in Tag A079 (Staffing

Standards - Levels), a Class III violation under section

408.813(2).

41. Rule 58A - 5.024 requires that an ALF maintain and make

available for inspection certain resident records, including an

up - to - date admission and discharge log. The evidence was clear

and convincing that Avalon was not in compliance with this rule

because th e log did not reflect R.M. having been admitted, which

resulted in Tag A0160 (Records - Facility), a Class III violation

under section 408.813(2).

42. Section 429.24 and rule 58A - 5.025 require that ALFs

enter into resident contracts. The evidence was c lear and

convincing that Avalon was not in compliance with this statute

and rule because it had no resident contract with R.M., which

resulted in Tag A0167 (Resident Contracts), a Class III violation

under section 408.813(2).

43. Rule 58A - 5.033 require s that ALF staff cooperate with

AHCA personnel during surveys, complaint investigations,

monitoring visits, implementation of correction plans, license

application and renewal procedures , and other activities

necessary to ensure compliance. AHCA personnel are required to

interview staff privately to determine compliance with resident

care standards. Id. at (1). The evidence was clear and

convincing that Avalon was not in compliance with this rule

because Mrs. Carter - Walker instructed staff not to answer

surveyor questions that might lead to findings of deficiencies ,

except through her, and staff followed those instructions by not

cooperating with AHCA personnel during the R.M. complaint

investigation, which resulted in Tag A0190 (Administrative

Enforcemen t), a Class III violation under section 408.813(2).

44. Section 408.809(1)(e) requires Level 2 background

screening for any person seeking employment with a licensee who

is expected to, or whose responsibilities may require him or her

to, provide person al care or services directly to clients.

Persons required to undergo background screening must not have an

arrest awaiting final disposition on a disqualifying felony

charge. Id. at (4)(a). See also § 435.06(1) - (2) , Fla. Stat .

The evidence was clear a nd convincing that Mr. Walker met with

R.M. at Florida Hospital, drove him part way to Avalon ' s ALF, and

participated in showing R.M. and Mrs. Fulcher where R.M. would be

staying at the ALF. Since he was awaiting the disposition of

disqualifying felony ch arges, this was a violation of the

screening requirements, which resulted in Tag AZ815 (Background

Screening - Prohibited Offenses), an unclassified violation under

section 408.813(2).

45. Avalon contends that Mr. Walker ' s contact with R.M. was

not a vio lation because, at the time, rule 59A - 35.090(4)(d)

stated: " An alleged offense is not disqualifying until such time

as there has been a disposition. " That rule language, which was

removed by amendment in December 2013, must be harmonized with

the statute s , if possible. That can be done by interpreting the

rule language to mean that the statutory prohibition is lifted

when charges are dismissed.

October 2013 Complaint Investigation Regarding D.D.

46. Avalon was required to provide D.D. with care and

se rvices appropriate to her needs. Fla. Admin. Code

R. 58A - 5.0182. This included personal supervision. Id. at (1).

Personal supervision includes: daily observation by designated

staff and awareness of the general health, safety, and physical

and emotion al well - being of the resident; contacting the

resident ' s health care provider and other appropriate party such

as the resident ' s family, guardian, health care surrogate, or

case manager if the resident exhibits a significant change, is

discharged or moves out; maintaining a written record, updated as

needed, of any significant changes, any illnesses that result in

medical attention, changes in the method of medication

administration, or other changes that result in the provision of

additional services. Id. at (b), (d), and (e). In order to

facilitate resident access to needed health care, an ALF must

assist residents in making appointments for medical services,

provide or arrange transportation to needed medical services.

Id. at (3)(a) - (b). Rule 58A - 5.02 5(1)(j) requires that resident

contracts have a provision that upon a determination by the ALF

administrator that a resident needs services beyond those the

facility is licensed to provide, the resident or the resident ' s

representative, or agency acting on the resident ' s behalf, must

be notified in writing that the resident must make arrangements

for transfer to a care setting that is able to provide services

needed by the resident. The evidence was clear and convincing

that Avalon violated the statute and rule by not taking

appropriate steps to have the metal staples removed from D.D. ' s

scalp for three months, which resulted in Tag A025 (Resident

Care - Supervision), a Class II violation under section

408.815(2)(a) - (b).

47. Avalon argues that the evide nce regarding D.D. does not

support a violation of rule 58A - 5.0182(1)(d) - (e) because the

failure to take steps to remove the metal staples in D.D. ' s scalp

did not amount to a " significant change " under the definition in

rule 58A - 5.0131(32): " a sudden or m ajor shift in behavior or

mood inconsistent with the resident ' s diagnosis, or a

deterioration in health status such as unplanned weight change,

stroke, heart condition, enrollment in hospice, or stage 2, 3, or

4 pressure sore. " On this point, Avalon ' s arg ument has merit.

Violations of rule 58A - 5.0182(1)(d) - (e) were not proven.

July 2013 Re - Licensure Survey

48. The deficiencies tagged as a result of the July 2013

re - licensure survey were proven by clear and convincing evidence.

All those deficiencies were either Class III or Class IV

deficiencies that were promptly corrected and were cleared by

AHCA, and Avalon cannot be fined or disciplined for them. They

can be considered in determining whether AHCA proved a pattern of

deficient performance that wou ld warrant license discipline under

section 408.815(1)(d), Florida Statutes. But see Conclusion of

Law 52, infra .

Amended Final Order Denying Avalon III Application

49. Under section 429.14(3), AHCA " 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 5 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

moratorium; or had an injunctive p roceeding initiated against

it. " The evidence was clear and convincing that this ground for

denial of Avalon ' s re - licensure exists by virtue of the Amended

Final Order entered in DOAH Case 09 - 6342, which was affirmed on

appeal.

50. Avalon argues that s ection 429.14(3) does not apply

because Avalon III did not have a license. That strained

interpretation of the statute is rejected. As used in the

statute, denial of a license means denial of an application for a

license, as well as denial of an applicat ion for renewal of a

license. Contrary to Avalon ' s argument, the wording of section

408.815 supports this conclusion.

Pattern of Deficient Performance

51. Under section 408.815(1)(d), AHCA may deny a license

for a " demonstrated pattern of deficient pe rformance. " There is

no case law construing this phrase. An accepted definition of

the word " pattern " is: " the regular or repeated way in which

something happens or is done. " Merriam - Webster Online Dictionary

(2015).

52. Avalon argues that there was no clear and convincing

evidence of a pattern of deficient performance because R.M. ' s

elopement and D.D. ' s scalp staples were isolated incidents, and

the deficiencies from the July 2013 re - licensure survey were

minor and cleared. The minor, cleared defic iencies noted in the

July 2013 survey do not contribute to the relevant pattern of

deficient performance. The deficiencies arising out of the R.M.

and D.D. complaint investigations reflect a troubling pattern.

See Finding of Fact 23 - 25, supra . It is not necessary for AHCA

to allow such a pattern to continue for a longer period of time

before taking action under section 408.815(1)(d).

Other Grounds for Denial of Application for Renewal

53. Section 429.14(1) authorizes denial or revocation of a

license for: an intentional or negligent act seriously affecting

the health or safety of a resident of a facility; failure to

comply with the background screening standards of part II of

chapter 408 or a violation of part II of chapter 429, section

408.809(1), o r chapter 435; failure of a licensee during

re - licensure to meet the minimum license requirements of part II

of chapter 429, or related rules, at the time of license

application or renewal; or any act constituting a ground to deny

an application for a lice nse. Id. at (a), (f), (h), and (k).

54. Section 408.815(1)(b) - (c) authorizes denial or

revocation of a license for: an intentional or negligent act

materially affecting the health or safety of a client of a

provider (i.e., in this context, a resident of an ALF); or a

violation of part II of chapter 408, authorizing statutes, or

applicable rules.

55. The clear and convincing evidence also proved these

charges and grounds (although they add nothing to the other

proven charges and grounds) .

Fines As sessed in DOAH Case 14 - 1339

56. Under section 429.19(2)(b), AHCA shall impose an

administrative fine for Class II violations in an amount not less

than $1,000 or more than $5,000 per violation. AHCA seeks a fine

of $2,500 for the Class II violation regar ding R.M. and $2,000

for the Class II violation regarding D.D. These fines are

reasonable under section 429.19(3).

57. Under section 408.813(3), AHCA may impose an

administrative fine of not more than $500 per unclassified

violation (unless otherwise s pecified by law) . AHCA seeks $500

fines for each of the two unclassified violations arising out the

complaint investigations, which is appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that A HCA enter a final order denying Avalon ' s

license renewal application and fining Avalon $5,500.

DONE AND ENTERED this 21st day of January , 2015 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21 st day of January , 2015 .

ENDNOTE S

1/ Avalon ' s application and AHCA ' s survey for the 2010 - 2012

biennial license renewal were delayed because AHCA ' s revocation

of Avalon ' s license (AHCA C ases 2009009965, 2009009966,

2009011074, 20100002136, and 201000021 38; DOAH C ases 10 - 0528,

10 - 1672, and 10 - 1673) was on appeal to the First District Court

of Appeal ( C ase 1D11 - 1411). The revocation was reversed by the

court in December 2011, and Avalon applied for renewal for the

years 2010 through 2012, which was grante d in February 2013.

2 / Agency Exhibits 6 and 16 were received in evidence, but no

findings of fact are based solely on these documents or hearsay

contained in them , unless the hearsay would have been admissible

over objection in civil actions. § 120.5 7(1)(c), Fla. Stat.

(2014). See Harris v. Game and Fresh Water Fish Comm 'n , 495

So. 2d 806 (Fla. 1st DCA 1986) ; Scott v. Dep ' t of Prof. Reg. ,

603 So. 2d 519 (Fla 1st DCA 1992); Juste v. Dep ' t of HRS ,

520 So. 2d 69 (Fla. 1st DCA 1988).

Agency Exhibit 8, the transcript of the deposition of

Jacqueline Renea Fulcher, the " foster daughter - in - law " of R.M.,

the alleged victim in the September 2013 complaint investigation,

was received. Avalon objected on the ground that the witness was

available to testify at the hearing, but the exhibit supports its

use in lieu of live testimony.

Agency Exhibits 20 and 21, the transcripts of depositions of

Chiqquittia Carter - Walker, who owns Avalon and is its

administrator, were received for rebuttal and impeachment

purpos es, and to support AHCA ' s renewed motion for sanctions on

the ground that Mrs. Carter - Walker frequently took the Fifth and

refused to answer questions during the deposition (AHCA ' s

pre - hearing motion for sanctions having been denied at the

outset of the fi nal hearing) . The renewed motion for sanctions

is denied.

AHCA was allowed to late - file Agency Exhibit 22, AHCA ' s

discovery requests and Avalon ' s responses regarding video

surveillance that were supposed to rebut and impeach the

testimony of Mrs. Carte r - Walker and the position of Avalon that

AHCA could have placed the video surveillance in evidence

(something Avalon also did not do) to resolve some critical

factual disputes between the parties. However, AHCA did not

file Agency Exhibit 22, which is dee med withdrawn.

3/ See Endnote 1, supra .

4/ Avalon took the position that some of the deficiencies were

corrected so quickly that they should not be considered

deficiencies at all. This argument is rejected. They can be

considered in deciding whethe r there was a pattern of deficient

performance. See Conclusion of Law 48. Avalon also argued that

all the Class III tags actually were Class IV. That distinction

need not be determined because all were promptly corrected and

cleared, so it did not matte r if they were Class III or Class IV.

5/ Avalon seemed to be taking the position that, once the

deficiencies noted in the July 2013 survey were cleared, AHCA was

obligated to renew Avalon ' s license, regardless of the new

complaint investigation. This argument, which was not maintained

in Avalon ' s proposed recommended order, is rejected.

6/ By the time of the final hearing, the charges were dropped.

Avalon takes the position that Mr. Walker was not disqualified,

but that position is rejected. See Conclusion of Law 45, infra .

The subsequent nolle prosequi of the charges does not alter

Mr. Walker ' s status in July 2013.

7/ The F orm 1823 stated that the discharge was to Avalon II on

Early Frost Circle, and there was other evidence that R.M. spent

time and even possibly at least one overnight at Avalon II ' s ALF,

but Avalon maintained that R.M. never spent a night at Avalon II,

and AHCA now accepts that R.M. was not a resident at Avalon II.

8/ Mrs. Carter - Walker and her husband denied that he dro ve.

Although who drove probably is not a critical distinction, the

testimony of Mrs. Fulcher is accepted on this point, and it is

found by clear and convincing evidence that Mr. Walker was

driving.

9/ Mrs. Fulcher thought the ALF was on Early Frost Ci rcle, which

would have been Avalon II. If it was, it is not clear from the

evidence if R.M. actually stayed there or how long he stayed

there. See E ndnote 7, supra .

10/ Unless otherwise stated, all statutory references are to the

2013 codification of the Florida Statutes, which reflects the

statutes in effect at the time of the alleged violations.

11/ Unless otherwise stated, all rule references are to the

Florida Administrative Code rules in effect at the time of the

alleged violations.

COPIES FURNISHED:

John E. Terrel, Esquire

John E. Terrel, P.A.

Suite 11 - 116

1700 North Monroe Street

Tallahassee, Florida 32303

(eServed)

Thomas J. Walsh, II, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330G

525 Mirror Lake Drive, Nor th

St. Petersburg, Florida 33701

(eServed)

Edwin David Selby, Esquire

Agency for Health Care Administration

Sebring Building, Third Floor, Room 330

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

(eServed)

Richard J. Shoop, Agency Clerk

Age ncy for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stuart Williams, G eneral Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Re commended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.