15-004847 Agency For Health Care Administration vs. Flamingo Park Manor, Llc Status: Closed Recommended Order on Monday, May 9, 2016.

Summary: Petitioner failed to prove, by clear and convincing evidence, that Respondent did not provide appropriate supervision for assisted living facility resident, or that Respondent did not follow its own elopement policy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case No. 15 - 4847

FLAMINGO PARK MANOR, LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (201 4 ), 1/

before Cathy M. Sellers, an Administrative Law Judge ( " ALJ " )

of the Division of Administrative Hearings ( " DOAH " ) , by video

teleconference on Febr u ary 12, 2016 , at sites in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Nelson E. Rodney, Esquire

Agency for Health Care Administration

8333 Northwest 53rd Street, Suite 300

Miami, Florida 33166

For Respondent: Peter A. Lewis, Esquire

Law Offices of Peter A. Lewis, P.L.

3023 North Shannon Lakes Drive, Suite 101

Tallahassee, Florida 32309

STATEMENT OF THE ISSUE S

(1) Whether Respondent violated section 429.2 6(7), Florida

Statutes, and Florida Administrative Code Rule 58A - 5.0182(1) by

failing to appropriately supervise one of its residents, and, if

so, the penalty that should be imposed.

(2) Whether Respondent failed to follow its own elopement

policy, in violation of Florida Administrative Code Rule 58A -

5.0182(8), and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On April 14, 2015, Petitioner, Agency for Health Care

Administration , issued and served on Respondent, Flamingo Park

Manor, LLC, a two - count Ad ministrative Complaint. Respondent

timely requested an administrative hearing, and the matter was

referred to DOAH for assignment of an ALJ to conduct a hearing

pursuant to sections 120.569 and 120.57(1). The final hearing

initially w as set for November 13, 2015. However, pursuant to

requests for continuance, which were granted for good cause, the

hearing was held on February 12, 2016.

Petitioner presented the testimony of James Byrd Williams

and Arlene Mayo - Davis in its case - in - chie f, and presented the

testimony of Claudia Pace on rebuttal. Petitioner ' s Exhibits 1

through 4 were admitted over Respondent ' s standing hearsay

objection, as applicable. Respondent presented the testimony of

George Hernandez, Jr., Ph.D.; Alaine Dominguez ; and Gina

Quinones. Respondent ' s Exhibits 1 through 5 were admitted over

Petitioner ' s standing hearsay objection, as applicable.

The one - volume Transcript was filed on March 2, 2016.

Pursuant to motion, the time for filing proposed recommended

orders w as extended to April 5, 2016. The parties timely filed

their proposed recommended orders, which were duly considered in

preparing this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner, Agency for Health Care Administration, is

the state agency statutorily charged with regulating assisted

living facilities ( " ALFs " ) in the state of Florida.

2. Respondent, Flamingo Park Manor, LLC, is a 72 - bed

limited mental health 2/ ALF licensed pursuant to License

No. AL7308 and subject to regulation by Petitioner pursuant to

chapter 429, Florida Statutes, and Florida Administrative Code

C hapter 58A - 5. It is located at 3051 East 4th Avenue, Hialeah,

Florida 33013.

II. The Administrative Complaint

3. As the result of a comp laint survey conducted on or

about February 3, 2015, Petitioner served an Administrative

Complaint on Respondent on April 14, 2015.

4. The Administrative Complaint charged Respondent with a

Class I violat ion of section 429.26(7) and rule 58A - 5.0182(1)

fo r failing to appropriately supervise one of its facility

residents, R.R., resulting in Respondent not knowing R.R.'s

whereabouts for five days.

5. The Administrative Complaint also charged Respondent

with a Class II violat ion of rule 58A - 5.0182(8) for failing to

follow its own elopement policy and procedures during the time

that R.R. was absent from Respondent ' s facility.

6. The Administrative Complaint seeks to impos e

administrative penalties of $5,000 for the alleged Class I

violation and $2,5 00 for th e alleged Class II violation. 3/

I I I. The Events Giving Rise to this Proceeding

7 . R.R., a 3 8 - year - old male, admitted himself to , and

became a resident of , Respondent ' s ALF on May 15, 2014. He was

classified as a mental health resident. 4 / He had been diagnosed

with schizophrenia and had been prescribed medicatio ns to

address this c ondition .

8 . On the day he was admitted to the ALF, Respondent ' s

administrator completed an Elopement Risk Assessment Form, which

evaluated R.R. ' s risk for elopement 5 / from the facility. At that

time, R.R. was determined not to constitute an elopement risk. 6 /

9 . On June 1, 2014, by Joyce Gonzalez, a doctor of

osteopathic medicine, performed a health assessment of R.R. She

completed the Resident Health Ass essment for Assisted Living

Facilities , AHCA Recommended Form 1823 ( " Form 1823 " ) , as

required by rule .

10 . Gonzalez noted on Form 1823 that R.R. had been

diagnosed with schizophrenia and asthma , and that he heard

voices and exhibited poor judgment.

1 1 . R.R. was evaluated as " independent " for the following

activities of daily living: ambulation, bathing, eating,

toileting, and transferring. She evaluated him as " needs

supervision " for dressing, and " needs assistance " for self - care

(grooming).

1 2 . Gonzalez answered " yes " i n response to the question

" [i] n your professional opinion , can this individual ' s needs be

met in an assisted living facility, which is not a medical or

psychiatric facility? "

1 3 . R.R. was evaluated as " independent " for the s elf - care

tasks of shopping, making phone calls, handling personal

affairs, and handling financial affairs.

1 4 . In the " General Oversight " section of Form 1823, which

constitutes an evaluation of the frequency with which R.R.

needed general oversight by Respondent ' s staff, R.R. was

determined to need the following services on a daily basis :

observing wellbeing, observing whereabouts, and reminders for

daily tasks. 7 /

1 5 . On the " Self - Care and General Oversight Ï Medications "

section of R.R. ' s Form 1823, Gonzalez listed three medications

that R.R. was to receive , some twice daily. Gonzalez indicated

on Form 1823 that R.R. needed the assistance of Respondent ' s

staff to self - administ e r his medications.

1 6 . The Form 1823 completed for R.R. s tates that he did

not constitut e an elopement risk.

1 7 . R.R. was involuntarily admitted to a mental health

treatment facility (i.e., " Baker - Acted " ) from May 16 through

May 20 and September 29 through October 3, 2014. Both time s ,

after being discharged , he resumed living at Respondent ' s ALF.

1 8 . When R.R. was discharged from the mental health

treatment facility on October 3, 2014, he was taking an anti -

psychotic medication to treat his schizophrenia and medications

to alleviate the side eff ects of his anti - psychotic medication.

The written patient discharge instructions he received, which

were included in Respondent ' s medical information files for

R.R., included descriptions of the medications he had been

prescribed. These instructions sta ted that these medications

needed to be taken as directed.

19. The evidence establishes that despite his mental

health condition, R.R. was an independent resident who was

lucid, alert, self - aware, and oriented regarding time and place.

As was the case for the other residents at Respondent ' s ALF,

R.R. received his meals when he was present in the facility . He

also received assistance from Respondent ' s staff in self -

administering his medications , which he was free to refuse to

take, and h e received supervision and guidance in grooming and

dressing himself. In other respects, consistent with the

evaluation recorded on Form 1823, R.R. functioned independent ly .

20. W hen R.R. was present in the ALF , his wellbeing and

whereabouts were obser ved on a daily basis, as documented by the

room census es , medication log s , shift reports, and resident

observation logs that Respondent kept on R.R.

21 . During his residency at the ALF, R.R. left the

facility at various times of the day , on an almost daily basis .

He often would be gone for many hours and would return to the

facility.

2 2 . According to Respondent ' s staff, R.R. told them that

he took long walks in the community and that at times, he

visited his parents at their home.

2 3 . The credible evidence establishes that during R.R. 's

five - month residency at the ALF, although he requently left and

often was gone for many hours at a time , he had been absent more

than 48 hours only twice , 8 / and absent between 24 hours and

48 hours three times , 9 / prior to his departure on October 15,

2014.

2 4 . If R.R. was not in the facility at the time he was to

take his medications, he did not receive them. The medication

observation records for R.R. show numerous days throughout his

residency o n which he did not receive some or all of his

medications.

2 5 . Sometime during the day on October 15, 2014, R.R. left

the ALF .

2 6 . R.R. received the morning doses of his medications and

attended a mental health counseling session before he left that

day .

2 7 . Alaine Dominguez, Respondent ' s shift supervisor on

duty that day , and George Hernandez, the psychological counselor

who conducted the mental health counseling sessions at the

facility , both testified, credibly, that R.R. told them he was

leaving for approximately a week to visit his parents at their

home . 10/

2 8 . Dominguez credibly testified that he told R.R. to take

his medications with hi m, but R.R. refused.

2 9 . Respondent ' s staff did not contact R.R. ' s parents to

verify that he was going to visit , or was visiting , them.

30 . Tragically, R.R. was struck by an automobile late o n

the evening of October 15, 2014, while walking in the travel

lanes of Northwest 79th Street. He was seriously injured and

w as taken to Jackson Memorial Hospital, where he died on the

morning of October 16, 2014.

31 . R.R. ' s parents were notified by the hospital on

October 16, 2014, that R.R. had been injured and died.

3 2 . On October 20, 2014 , R.R. ' s mother and sister visited

Respondent ' s facility and questioned staff regarding R.R. ' s

whereabouts . Respondent ' s s taff told them that R.R. had left

the facility a few days ago to visit his parents. A t that

point , R.R. ' s mother informed Respondent ' s staff that R.R. had

been killed almost five days ago .

3 3 . By th e time R.R. ' s mother informed Respondent ' s staff

of his death , R.R. had been absent from the ALF for

approximately five days.

3 4 . Until R.R. ' s mother informed Respondent ' s staff that

he had been killed, they did not know R.R. ' s specific

whereabouts during the period in which he was absent from the

ALF.

3 5 . The evidence establishes that Respondent ' s staff

assumed that , consistent with R.R. ' s statement s to Dominguez and

Hernandez , he had gone to visit his parents at their home.

3 6 . Consequently, Respondent d id not report to R.R. ' s

parents, law enforcement, or any other entity , that R.R. was

absent or missing from the ALF.

3 7 . Petitioner presented the testimony of its health care

evaluator, James Byrd Williams, who performed the February 3,

2015, complaint survey on Respondent ' s ALF. Williams testified

that R.R. ' s mother told him that R.R. did not know the location

of his parents ' ho me , so he could not have gone to visit them. 1 1 /

3 8 . R egardless of whether R.R. knew or did not know the

location of his parents ' ho me , the evidence establishes that

Respondent ' s staff believed that R.R. knew the location of his

parents ' home. Accordingly, it was reasonable for th em to

accept as true R.R. ' s statement that he was leaving the facility

to visit his parents at their home .

3 9 . Respondent ' s staff completed shift reports for

October 15 through October 20, 2014 . Most of the reports note d

that R.R. was "on pass," meaning that he was not present in the

ALF. None of the reports contain ed notations specifically

stating that R.R. was visit ing his parents or when he was

expected to return.

40 . Williams testified that in his opinion, Respondent did

not adequately supervise R.R., based on the fact that R.R. was a

mental health resident, that he frequently left the ALF and was

gone for extended periods of time without Respondent k nowing his

specific whereabouts , that R.R. did not receive his medications

w hen he was out of the ALF , and that Respondent did not contact

hi s parents at their home to verify that R.R. was, in fact, at

their home .

41 . As required by rule, Respondent has prepared and

implemented an elopement policy , 1 2 / which states:

Policy :

It is the policy of this facility to permit

and encourage residents to retain their

independence and not to infringe upon their

right to come and go from the facility as

they please.

Procedure :

1. Residents are informed upon admission

and during their stay to notify staff

members when they leave the facility and

when they will be expected to return.

2. Each new admission and yearly

thereafter, will have an " Elopement Risk

Assessment Form " completed.

3. If elopement risk is determined, the

following acti ons will be taken:

a) an i.d. bracelet will be placed with

his/her name and facility contact

information;

b) a picture will be placed in the

" Elopement Risk Binder " where

pertinent resident information will be

easily available if reporting is needed; a nd

c) all staff members will be informed of

" at risk " residents and the " Elopement Risk

Binder " and its contents.

4. Each case will be evaluated

independently when implementing this policy

taking into consideration the resident ' s

usual outing habits.

5. For " At - Risk " identified residents, the

following will take place immediately if

facility staff determines that the

whereabouts of such resident is unknown:

a) a complete grounds search will be

conducted by all staff members present at

the time, dire cted by the Shift Supervisor;

b) a complete neighborhood search will be

conducted by all staff at the time, directed

by the Shift Supervisor;

c) if resident is not located and it has

not been determined that he/she left without

notifying staff, Shift S upervisor or

Administrative staff will be responsible for

notifying law enforcement, resident ' s

family, guardian, health care surrogate,

attending physician and case manager that

the resident ' s whereabouts are not known.

d) an adverse incident report in the AHCA

website will be done.

6. Once the resident has been reported

" missing " with the local authorities, a case

number will be obtained and placed on the

resident ' s chart.

7. A " Quality Improvement/Missing Person

Report Form " will be used to evalua te events

and keep track of all daily calls to

hospitals, shelters, jails etc[.] made to

locate resident.

8. If resident is located by facility staff

prior to law enforcement, then the Shift

Supervisor or Administrative staff will

notify law enforcement, resident ' s family,

guardian, health care surrogate, attending

physician and case manager that the

resident has been located.

9. Residents who are considered to be " not

at risk , " from the elopement risk assessment

form complete [sic] upon admission, are to

be reported missing if ou [ t] of the facility

more than 48 hours. If residents, [sic]

behavior is to leave the facility for long

periods of time and always returns, this is

to be considered to also be " not at risk "

and will be reported missing after 48 hours.

4 2 . Respondent ' s administrator testified that paragraph 1

of Respondent ' s elopement policy superseded all of the other

paragraphs of the policy, so that if a resident told a member of

Respondent ' s staff that he or she was leaving the ALF, that

resident would not be considered to have eloped , even if he or

she were absent longer than the time period specified in

paragraphs 5 and 9 for residents considered "at risk" and "not

at risk" for elopement. Only if the resident did not follow the

procedur e set forth in paragraph 1 when leaving the facility

would the other provisions of the elopement policy apply,

depending on whether the resident was "at risk" or "not at risk"

for elopement.

4 3 . As noted above, n one of the documents prepared by

Responden t to keep track of which residents were present or

absent from the facility , including the shift reports or room

census reports, contained notations regarding where R.R. had

told staff he was going when he left on October 15, 2014, or

when he anticipated returning. However, Respondent ' s

administrator testified that , based on verbal communications

from Dominguez , "we were all aware of how long it was going to

be . "

4 4 . She further testified that if R.R. had told them he

was going to be gone a week and the n was gone for a longer

period , the elopement policy would have been triggered and

Respondent would have contacted R.R. ' s family and law

enforcement a nd filed a missing person report pursuant to the

applicable policy provisions.

I V. Findings of Ultimate Fact

4 5 . Florida courts consistently hold that the issue of

whether an individual ' s or entity ' s actions violate a statute or

deviate from an established standard of conduct is an issue of

ultimate fact to be determined based on the evidence in the

record. See Gross v. Dep ' t of Health , 819 So. 2d 997, 1003

(Fla. 1st DCA 2002); Goin v. Comm ' n on Ethics , 658 So. 2d 1131 ,

1138 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489,

491 (Fla. 1st DCA 1995).

Failure to Provide Appropriate Sup ervis ion

4 6 . Petitioner did not prove, by clear and convincing

evidence, th at Respondent failed to provide appropriate

supervision to R.R. , in violation of section 429.26(7) or

rule 58A - 5.0182(1).

4 7 . Section 429.26(7) states :

The facility must notify a licensed

physician when a resident exhibits signs of

dementia or cognitive impairment or has a

change of condition in order to rule out the

presence of an underlying physiological

condition that may be contributing to such

dement ia or impairment. The notification

must occur within 30 days after the

acknowledgment of such signs by facility

staff. If an underlying condition is

determined to exist, the facility shall

arrange, with the appropriate health care

provider, the necessary care and service s to

treat the condition.

48 . R.R. was diagnosed with schizophrenia before becoming

a resident at Respondent's ALF . H owever, t he evidence does not

establish that R.R. suffered from dementia or cognitive

impairment . To that point, when R.R. was admitte d to the

facility, the evaluating doctor determined that h is needs could

be met in an ALF, rather than a medical facility. T here are no

notations in the resident observation logs or in any other

records that Respondent kept on R.R. indicating that he suffered

from dementia or cognitive impairment.

49. Additionally, a lthough R.R. would not receive his

medications on many occasions , Petitioner failed to establish

that R.R. ' s refusal or failure to take his medication somehow

constitute d a "changed condition" that required Respondent to

notify a physician of his condition.

5 0 . Further , even if the evidence had shown that R.R.

exhibited dementia, cognitive impairment, or a changed

condition, Petitioner failed to present evidence establishing

when Respondent's staff acknowledged these conditions for

purposes of commencing the 30 - day statutory notification period .

Accordingly, it cannot be discerned when the notification period

ended for purposes of determining whether Respondent violated

the notif ication requirement .

5 1 . For these reasons , it is determined that Petitioner

failed to prove that Respondent violated section 429.26(7), as

charged in the Administrative Complaint.

52 . Rule 58A - 5.0182(1), which establishes the standard of

care for sup ervision of ALF residents, states in pertinent part :

(1) SUPERVISION. Facilities must offer

personal supervision as appropriate for each

resident, including the following:

* * *

(b) Daily observation by designated staff

of the activities of the resident while on

the premises , and awareness of the general

health, safety, and physical and emotional

well - being of the resident.

(c) Maintaining a general awareness of the

resident ' s whereabouts. The resident may

travel independently in the community .

(d) 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

exhibit s a significant change; contacting

the resident ' s family, guardian, health care

surrogate, or case manager if the resident

is discharged or moves out.

(e) Maintaining a written record, updated

as needed, of any significant changes, any

illnesses that res ulted in medical

attention, changes in the method of

medication administration, or other changes

that resulted in the provision of additional

services.

Fla. Admin. Code R. 58A - 5.0182(1)(emphasis added).

5 3 . The evidence establishes that Respondent appr opriately

supervised R.R. under his specific personal circumstances.

5 4 . As discussed above, when R.R. was present in the

facility , Respondent ' s staff observ ed and documented his

wellbeing and whereabouts. The evidence shows that i n most

respects, R.R. was an independent resi dent who only required

assistance with a limited number of tasks.

5 5 . Although R.R. frequently left the facility for long

periods of time, Respondent ' s staff generally were aware, based

on R.R. ' s statements to them, that he was walking around in the

community ÏÏ which he clearly was entitled to do without being

supervised, pursuant to the plain language of rule 58A -

5.0182(1)(c). 1 3 /

5 6 . With respect to the specific event giving rise to this

proceeding, t he persuasive evidenc e establishes that when R.R.

left the ALF on October 15, 2014, he told Respondent ' s staff

that he was going to be gone for approximately a week to vi sit

his parents at their home, and that Respondent ' s staff had no

reason to question the truth of this statement. The evidence

establishes that Respondent ' s staff believed R.R. was at his

parents ' home. This is sufficient to meet the rule requirement

that Respondent maintain a general awareness of R.R. ' s

whereabouts ÏÏ particularly given that there is no st atute or rule

that would requir e Respondent to "check up on" or v erify that a

resident was at the specific location that he or she purported

to be going when leaving the facility.

5 7 . Petitioner also failed to present evidence showing

that R.R. exhib ited a " significant change " in condition 1 4 / or

that he had been discharged or moved out of the facility, any of

which would have triggered the requirement to notify his health

care provider or family.

5 8 . The evidence also fails to establish that Respondent

failed to maintain adequate written records of significant

changes in R.R. ' s condition, illnesses that R.R. suffered

result ing in medical attention, changes in the method of R.R. ' s

medication administration, or other changes result ing in the

pro vision of additional services . To the contrary, the written

records Respondent kept regarding R.R. ' s condition and

medication administration specifically noted when he had been

Baker - Acted and when he took or did not take his medications.

Petitioner di d not present any evidence showing that these

records were inaccurate or incomplete.

5 9 . For these reasons, Petitioner failed to prove, by

clear and convincing evidence, that Respondent violated

rule 58A - 5. 0182(1), as charged in the Administrative Complaint.

Failure to Follow Elopement Policy

60 . Petitioner also failed to prove, by clear and

convincing evidence, that Respondent violated rule 58A - 5.0182(8)

by failing to follow its own elopement policy with respect to

reporting R.R. missing .

61 . Rule 58A - 5.0182( 8 ) requires A LFs to develop written

rights and facility procedures for responding to a resident

elopement . Th e rule states in pertinent part:

(b) Facility Resident Elopement Response

Policies and Procedures. The facility must

develop detailed written policies and

procedures for responding to a resident

elopement. At a minimum, the policies and

procedures must provide for:

1. An immediate search of the facility and

premises;

2. The identification of staf f responsible

for implementing each part of the elopement

response policies and procedures, including

specific duties and responsibilities;

3. The identification of staff responsible

for contacting law enforcement, the

resident ' s family, guardian, healt h care

surrogate, and case manager if the resident

is not located pursuant to subparagraph

(8)(b)1.; and

4. The continued care of all residents

within the facility in the event of an

elopement.

62 . "Elopement" is defined as "an occurrence in which a

resident leaves a facility without following facility policies

and procedures ." Fla. Admin. Code R. 58A - 5.0131(14)(emphasis

added).

6 3 . As noted above, Respondent has developed an elopement

policy pursuant to rule 58A - 5.0182(8 ), and the sufficiency of

this policy is not at issue in this proceeding.

6 4 . As a threshold matter, Respondent's elopement policy

requires r esidents to notify staff members when they leave the

facility and when they will be expected to return. If a

r esident complies with this requirement, he or she has followed

the "facility's policies and procedures , " so has not eloped

under rule 58A - 5.0313(14).

6 5 . Here, t he persuasive evidence establishes that when

R.R. left the facility on October 15, 2014, he informed

Respondent ' s staff that he was leaving the facility and that he

expected to return in approximately one week , in compliance with

Respondent ' s policies and procedures regarding notification when

the resident leaves the facility . Therefore, R.R. ' s departure

from the facility that day did not constitute "elopement" as

defined in rule 58A - 5. 0131(14).

6 6 . Because R.R. did not elope from the facility on

October 15, 2014 , he was not considered "missing" for purposes

of triggering paragraph 9 of Respondent ' s elopement policy ,

which would have required Respondent to report him missing after

being out of the facility for 48 hours.

6 7 . For these reasons, Petitioner failed to prove,

by clear and convincing evidence, that Respondent violated

rule 58A - 5.0182(8 ), as charged in the Administrative Complaint.

C ONCLUSIONS OF LAW

6 8 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1).

6 9 . In this proceeding, Petitioner seeks to discipline

Respondent for alleged violations of section 429.26(7) and

rule 58A - 5.0182(1) and (8 ) , and to impose administrative fines

as sanctions for these violations . Thus, Petitioner bears the

ultimate burden of persuasion , by clear and convincing evidence ,

to establish that Respondent committed the alleged violations.

See Coke v. Dep ' t of Child. & Fam. Servs. , 704 So. 2d 726 (Fla.

5th DCA 1998); Dubin v. Dep ' t of Bus. Reg. , 262 So. 2d 273, 274

(Fla. 1st DCA 1972); Dep ' t of Banking & Fin., Div. of Sec. &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996). This standard of proof has been described as

follows:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the fac ts 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 produces in the mind of

the tr ier 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)(citing Slomowitz v.

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

70 . In Count I of the Administrative Complaint, Petitioner

has charged Respondent with violating section 429.26(7) and

rule 58A - 5.0182(1) by failing to provide appropriate supervision

for R.R.

71 . For the reasons discussed above , it is concluded that

Respondent provide d appropriate supervision of R.R., so did not

violat e section 429.26(7) or rule 58A - 5.0182(1).

72 . In Count II of the Administrative Complaint,

Petitioner has charged Respondent with failing to follow its own

elopement policy, in violation of rule 58A - 5.0182(8).

7 3 . For the reasons discussed above, it is concluded that

Respondent followed its elopement policy with respect to R.R.,

so did not violate rule 58A - 5.0182( 8 ).

74 . Accordingly , it is concluded that Petitioner failed to

prove, by cle ar and convincing evidence, that Respondent

committed any of the statutory or rule violations charged in the

Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that Petitioner , Age ncy for Health

Care Administration, enter a final order dismissing the

Administrative Complaint against Respondent, Flamingo Park

Manor, LLC.

DONE AND ENTERED this 9 th day of May , 2016, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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 9 th day of Ma y, 2016.

ENDNOTES

1/ Unless otherwise stated, all references are to the 2014

version of Florida Statutes, which was in effect on the date of

the alleged violations.

2/ Because Respondent is a limited mental health ALF, its staff

members must be trained to care for residents who have mental

health issues. See § 429.075(1), Fla. Stat.

3/ The Administrative Complaint also states that Petitioner

seeks to fine Respondent pursuant to sections 408.809(1)(e)

and 429.174, Florida Statutes. These statutes address

background screening requirements applicable to employees of

ALFs. However, the Administrative Complaint did not allege any

facts that, if proven, would constitute violations of these

statutes, and Petitioner did not present any evidence regarding

any alleged violations of these statutes.

4/ "Mental health resident" is defined as "an individual who

receives social security disability income due to a mental

disorde r as determined by the Social Security Administration or

receives supplemental security income due to a mental disorder

as determined by the Social Security Administration and receives

optional state supplementation." § 429.02(15), Fla. Stat.

5/ "Elope ment" is defined as "an occurrence in which a resident

leaves a facility without following facility policies and

procedures." Fla. Admin. Code R. 58A - 5.0131(14).

6/ The Elopement Risk Assessment Form instructions state

that the form is to be completed upon admission, 30 days after

admission, and with significant change in condition/mental

health status. As noted, the form was completed the day R.R.

was admitted to Respondent's ALF; however, it cannot be

determined whether Respondent complied with the form's

instructions by completing the form 30 days after R.R.'s

admission to the ALF, because the record does not include a

completed form as of that date. Nonetheless, Petitioner did not

charge Respondent with inaccurately assessing R.R. as not being

at risk for elopement in the Administrative Complaint, and

Petitioner was not permitted at the final hearing to expand the

scope of the charges to include alleged inaccuracy of the

elopement risk assessment for R.R.

7/ The key for oversight frequency in the "General Oversight"

section of Form 1823 consists of "independent, "weekly,"

"daily," and "other."

8/ According to Respondent's room census documents, R.R. was

absent from the ALF for approximately 55 hours star ting at or

before 2 p.m. on June 4, 2014, until midnight on June 7, 2014,

and also was absent from the ALF for approximately 53 hours

starting at or before 5 p.m. on September 10, 2014, until

midnight on September 12, 2014.

9/ According to Respondent's room census documents, R.R. was

absent from the ALF for approximately 33 hours starting at or

before 8 p.m. on July 16, 2014, until 3 a.m. on July 18, 2014;

for approximately 28 hours starting at or before 8 p.m. on

July 19, 20 14, until 10 p.m. on July 20, 2014; and approximately

31 hours starting at 8 p.m. on July 29, 2014, until 3 a.m. on

July 31, 2014.

10/ This testimony is not hearsay because it is not being

offered for the truth of the matter asserted in R.R.'s out - of -

cou rt statement ÏÏ i.e., that he was going to visit his parents at

their home. Rather, the testimony was offered to establish that

Respondent's staff believed that R.R. was going to visit his

parents at their home.

11/ This testimony is hearsay that does not fall within an

exception to the hearsay rule, and there is no other competent

evidence in the record independently establishing that R.R. did

not know the location of his parents' home. Accordingly, this

testimony is not afforded weight.

12/ Petition er has not charged Respondent with having an

insufficient elopement policy.

13/ See also § 429.28(1) , Fla. Stat . This statute states that

every resident of an ALF shall have the right to, among other

things, be treated with consideration and with due r ecognition

of individuality and the need for privacy, and to achieve the

highest possible level of independence, autonomy, and

interaction within the community.

14/ The term "significant change" is defined in rule 58A -

5.0131(32) as:

a sudden or major sh ift in behavior or mood

inconsistent with the residentÓs 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. Ordinary day - to -

day fluctuations in functioning and

behavior, a short - term illness such as a

cold, or the gradual deterioration in the

ability to carry out the activities of daily

living that accompanies the aging process

are not considered significant changes.

COPIES FURNISHED:

Peter A. Lewis, Esquire

Law Offices of Peter A. Lewis, P.L.

3023 North Shannon Lakes Drive, Suite 101

Tallahassee, Florida 32309

(eServed)

Nelson E. Rodney, Esquire

Agency for Health Care Administration

8333 Northwest 53rd Street, Suite 300

Miami, Florida 33166

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stuart Williams, General Counsel

Agency 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)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.