17-001559 Mila Alf, Llc, D/B/A Dixie Lodge Assisted Living Facility vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, May 10, 2018.

Summary: The Second Amended Notice of Intent to Deny license should be rescinded. Recommend approval of change of ownership application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILA ALF, LLC, d/b/a DIXIE LODGE

ASSISTED LIVING FACILITY,

Petitioner,

vs. Case No. 17 - 1559

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

R ECOMMENDED ORDER

Pursuant to notice, on January 29 and 30 , 2018 , a fina l

hearing was held in this case, pursuant to section 120.57,

Florida Statutes (2017), 1/ before Admi nistrative Law Judge

Yolonda Y. Green of the Florida Division of Administrative

Hea ri ngs (ÐD ivisionÑ), in DeL and , Florida.

APPEARANCES

For Petitioner: John F. Gilroy, III, Esquire

John F. Gilroy, III, P.A.

Post Office Box 14227

Tallahassee, Florida 32317

For Respondent: Thomas J. W alsh, II, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive North , Suite 330D

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

Whether PetitionerÓs application for change of own ership

should be granted or denied on the basis of the allegations set

forth in the Second Amended Notice of Intent to Deny (Ð Second

Amended NOIDÑ) .

PRELIMINARY STATEMENT

On March 21, 2016 , the Agency for Health Care

Administration (ÐAHCA , Ñ the ÐAgency , Ñ or ÐRespondentÑ ) issued

its Second Amended NOID for Mila ALF, LLC, d/b/a Dixie Lodge

Assisted Living Facility Ós (ÐDixie LodgeÑ or ÐPetitionerÑ )

application for change of ownership (ÐCHOWÑ). As grounds for

the intended denial, AHCA cited 21 deficiencies f ound in the

CHOW survey conducted on September 9, 2015 , and the fol low - up

surve y conducted on November 6, 2015. This matter was scheduled

for an informal hearing to be conduct ed on March 16, 2017. On

March 13, 2017, Dixie Lodge filed a Ð Request for Forma l

Administrative Hearing (Revert fro m Current Informal Hearing)Ñ ,

which was granted by the Informal Hearing O fficer. On March 15,

2017, this matter was referred to the Div ision for a final

hearing.

The hearing was scheduled on May 24 and 25, 2017. On

Ap ril 13, 2017, Petitioner filed its Motion for Relinquishment

and Motion for Continuance. The continuance was granted and the

hearing was rescheduled for July 11 and 12, 2017. After

additional motions for continuance, the case was rescheduled for

he aring on January 29 and 30, 2018 .

On October 2, 2017, in anticipation of the hearing, the

parties filed a Joint Pre - hearing Stipulation in which they

agreed to a statement of facts admitted. The agreed facts are

included in the Findings of Fact below to the ex tent relevant.

The hearing convened as scheduled on January 29, 2018 , and

continued unti l comp letion on January 30, 2018 . At hearing,

Dixie Lodge presented the testimony of five witnesses ,

including : Marifrances Gullo, RN - C, MSN, FNP - BC (an expert) ;

Edw a rd Kornuszko, PsyD (an expert); Annie Ward ( a Dixie Lodge

employee) ; and Jeff Yuzefpolsk y (owner of Dixie Lodge) . Andrea

Gockley, PsyD (a consultant employed by Mental Health Center of

Florida) was initially offered as an expert. However,

Petitioner wit hdrew that request before the undersigned ruled on

whether she met the qualifications to testify as an expert.

Ms. Gockley testified as a fact witness. Dixie Lodge offered

Exhibits P - 1 through P - 6, which were admitted. AHCA presented

the testimony of th e following four witnesses: Robert Dickson

(an AHCA field office manager); Lesley Linder (an AHCA health

facility evaluator); Jana Meyering (an AHCA operations

management consultant); and Linda Walker, R.N. (an AHCA

registered nurse specialist). AHCA off ered Exhibits R - 1 and

R - 2, which were admitted.

A transcript of the hearing was ordered. At the

conclusion of the hearing, the parties requested a 20 - day

deadline within which to fil e p roposed recommended o rders

(ÐPROsÑ) , which was granted.

Th e three - volume Transcript was filed on February 12, 2018.

Both parties time ly filed t heir PROs , which have been carefully

considered in the preparation of this Recommended Order.

FINDING S OF FACT

The following Findings of F act are based on exhibits

admi tted into evidence, testimony offered by witnesses, and

admitted facts set forth in the prehearing stipulation .

Parties

1. The Agency is the regulatory authority responsible for

licensure of assisted living facilities (ÐALFsÑ) and enforcement

of applicab le state statutes and rules governing assisted living

facilities pursuant to c hapters 408, p art II , and 429, p art I,

Florida Statutes, and c hapters 58A - 5 and 59A - 35, Florida

Administrative Code .

2 . In carrying out its responsibilities, AHCA conducts

insp ections (commonly referred to as surveys) of licensed ALFs

to determine compliance with the regulatory requirements. The

AgencyÓs evaluation, or survey, of an ALF may include review of

resident records, direct observations of the residents, and

interviews with facility staff persons. Surveys may be

performed to investigate complaints or to determine compliance

as part of a change of ownership process.

3 . While the purpose of the survey may vary, any

n oncompliance found is documented in a standard Agency form

entitled Ð Statement of Deficiencies and Plan of Correction

(ÐStatement of DeficienciesÑ) . 2/ The form is prepared by the

surveyor(s) upon completing the survey. Deficiencies are noted

on the form and classified by a nume ric or alphanumeric

identifie r commonly called a ÐT ag.Ñ The Tag identifies the

applicable regulatory standard that the surveyors use to support

the alleged deficiency or violation. Deficiencies must be

categorized as Class I, Class II, Class III, Class IV, or

unclassified deficienci es. § 408.813(2), Fla. Stat. In

general, the class corr elates to the nature and severity of the

deficiency.

4 . Dixie Lodge s ubmitted an application se eking to change

ownership of its facility in July 2015 and was issued a

provisional license to operat e Dixie Lodge as an ALF. A t all

times material hereto , Dixie Lodge was an ALF under the

l icensing authority of AHCA.

5 . Dixie Lodge has been licensed under previous owners for

approximately 30 years. To date, Dixie Lodge operates a 77 - bed

ALF with lim ited mental health specialty services .

6 . AHCA conducted surveys of Dixie Lodge as it related to

Dixie LodgeÓs CHOW application, commonly referred to as a CHOW

survey . The Agency conducted two surveys of Dixie LodgeÓs

assisted living facility . T he Agen cy conducted a CHOW survey on

September 9, 2015 . On November 6, 2015, the Agency conducted a

follow - up survey to determine whe ther Dixie Lodge had corrected

cited deficiencies.

7 . AHCAÓs surveyors documented deficiencies and cited

Dixie Lodge for viol ating statutory and rule requirements in

several areas of operation. The deficiencies are incorporated

in the Statement of Deficiencies , which were prepared after each

survey .

8 . When a CHOW survey reveals deficiencies , the Agency can

deny the upgrade f rom a provisiona l license to a standard

license. If a provider has three or more Class II violations ,

such as alleged in this matter, the Agency may deny the upgrade

to a standard license . A Class III violation warrants a follow -

up visit to give the lice nsee or applicant an opportunity to fix

the alleged deficiency . The Agency may also consider the

severity of the violation.

Allegations Regarding Class II Deficiencies

9 . The AHCA surve yor, Lesly Linder , who participated in

the CHOW survey on September 9, 2015 , found several

deficiencies . As set forth in the Statement of Deficiencies for

September 9, 2015 , Dixie Lodge was cited for three Class II

deficiencies in the follo wing areas : (Tag A0025) resident care -

supervision ; (Tag A0032) resident care - elope ment standard s; and

(Tag A0165) risk management and quality assurance .

Tag A0032: Resident Care and Supervision

10 . Resident care and supervision is addressed in section

429.26(7) as follows:

(7) 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

dementia 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 services to

treat the condition .

11 . Resi dent care and s upervision is also adressed in

Florida Administrative Code R ule 58A - 5.1082(1) as follows:

An assisted living facility must provide

care and services appropriate to the needs

of residents accepted for admission to the

facility.

(1) SUPERVIS ION. Facilities must offer

personal supervision as appropriate for each

resident, including the following:

(a) Monitoring of the quantity and quality

of resident diets in accordance with Rule

58A - 5.020, F.A.C.

(b) Daily observation by designated staf f

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

residentÓs whereabouts. The resident may

travel ind ependently in the community.

(d) Contacting the residentÓs health care

provider and other appropriate party such as

the residentÓs family, guardian, health care

surrogate, or case manager if the resident

exhibits a significant change; contacting

the resi dentÓs 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 sig nificant 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.

12 . During the survey, the surveyor reviewed a sampling of

18 residentsÓ records, and interviewed several facility

employees. The allegations r egarding resident care superv ision

were related to Resident No. 16 and Resident No. 17.

13 . During the survey on September 9, 2015, Ms. L inder

interviewed Employee A and documented in the Statement of

Deficiencies that the employee stated that ÐResiden t No. 16 had

wandered from the facility about five months ago and the police

returned him to the facility.Ñ Based on Employee AÓs statement,

it was determined that Resident No. 16 engaged in elopement

approximately five months prior to Petitioner assumin g ownership

of the facility.

14 . Ms. Lindner docume nted the elopement of Resident

No. 16 as a def iciency, even though Petitioner was not the owner

of the facility at that time.

15 . When asked whether AHCA is seek ing to hold Petitioner

responsible for the p urported elopement of Resident No. 16,

AHCAÓs field office m anager , Mr. Dickson , stated, ÐI donÓ t

believe so.Ñ

16 . The evidence presented at hearing demonstrates that

Petitioner was not responsible for the facility at the time

Resident No. 16 e loped from the facility and , thus, was not

responsible for elopement of Resident No. 16.

17 . The surveyor also inte rviewed Employee F on

September 9, 2015. During the interview, Employee F t old the

surveyor that Resident No. 17 had left the facility wit hout

notifying staff.

18. Specifically, Dixie Lodge maintained a ÐReport Book,Ñ

which included documentation of incidents during each shift. In

the book, the staff documented that on September 3, 2015, they

had not seen Resident No. 17 on the property f or the entire day.

The staff then documented their efforts to locate Resident

No. 17. Staff documented that they called the hospital and the

local jail to determine the location of Resident No. 17. After

these calls, the staff contacted law enforcement and law

enforcement returned Resident No. 17 to the facility. Based on

the evidence of record, there was sufficient evidence to

demonstrate that the Dixie Lodge staff had a general awareness

of the whereabouts of Resident No. 17.

19. A review of the Rep ort Book revealed that Resident

No. 17 had also eloped from the facility on September 8, 2015,

and had not been found at the time of the survey on September 9,

2015, at 3:30 p.m. At that time, the timeline for a one - day

adverse incident had not expired. The surveyor interviewed the

t hen a dministrator for Dixie Lodge and she disclosed that the

facility does not have contact information for next of kin or a

case manager for Resident No. 17. Even if the a dministrator had

the contact information, Dixie Lodge would not be required to

contact them (regarding the elopement) , unless the resident was

discharged or had moved out. Here, Resident No. 17 had eloped

but returned to the facility.

Tag A0032: Elopement Standards

20 . Elop e ment is when a resident le aves a facility without

following facility policies and procedures and without the

knowledge of facility staff.

21 . The elope ment standards are described in r ule 58A -

5.0182(8), which provides as follows :

(8) ELOPEMENT STANDARDS

(a) Residents Assessed at Risk for

Elopement. 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.

1. As part of its resident elopement

response policies and proce dures, the

facility 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 facilityÓs name,

address, and telephone number. Staff

attention must be directed towards residents

assessed at high risk for elopement, with

special attention given to those with

AlzheimerÓs disease or related disorders

assessed at high risk.

2. At a minimum, the facility must have a

photo identification of at risk residents on

file that is accessible to all facility

staff and law enforcement as necessary. The

facilityÓs file must contain the residentÓs

photo identification within 10 days of

admission or within 10 days of being

assessed at risk for elopement subsequent to

admission. The pho to identification may be

provided by the facility, the resident, or

the residentÓs representative.

(b) Facility Resident Elopement Response

Policies and Procedures. The facility must

develop detailed written policies and

procedures for responding to a r esident

elopement. At a minimum, the policies and

procedures must provide for:

1. An immediate search of the facility and

premises,

2. The identification of staff responsible

for implementing each part of the elopement

response policies and procedures , including

specific duties and responsibilities,

3. The identifi cation of staff responsible

for contacting law enforcement, the

residentÓs family, guardian, health 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.

22 . AHCA alleged that Dixie Lodge failed to follow its

elopement policies and procedures for Resident No s . 16 and 17 .

The Statement of Deficienci es also alleged that Dixie Lodge

failed to ensure that at least two elopement drills per year had

been conducted with all staff at the facility.

23 . Regarding Resident No. 16, evidence of record

demonstrates that Petitioner was not responsible for the

fa cility at the time Resident No. 16 eloped from the facility

and , thus, was not responsible for elopement of Resident No. 16.

24 . Although the elopement occurred before Petitioner

assumed ownership of the facility, Resident No. 16 was

designated as being at risk for elopement. A s such, the

facility was required to have photo identification (ID) on file

for the Resident . Investigation by the AHCA su rveyor revealed

that there was a photo on file but that it was of such poor

quality that the photo was not r eadily recognizable. The

surveyor did not provide further description of the photo.

Dixie Lodge Ós owner, Jeff Yuzefpolsky, t estified that because

Resident No. 16 had been incarcerated, his picture would be

immediately accessible, if needed, from the Depa rtment of

Corrections Ó inmate database, and that Mr. Yuzefpolsky was

familiar with accessing such photographs. While there was

testimony offered regarding the photo, the photo was not offered

into evidence. Based on the evidence in the record, the

unders igned finds there was not sufficient evidence to

demonstrate that Dixie Lodge failed to maintain a photo ID for

Resident No. 16.

25 . Regarding Resident N o. 17, Dixie Lodge had an

elopement policies and procedure manual and the staff followed

their polic ies and procedures as it relates to Resident No. 17.

26. Regarding the elopement drills, Ms. Walker discovered

documentation of two elopement drills. While the drills did not

include record of the staff who participated, there is not a

requirement for such in the elopement standards. Dixie Lodge

met the requirement by completing the drills and maintaining

documentation of the drills.

27 . T he undersigned finds that the citation for deficiency

Tag A 0032, a Class II deficiency, was not supported by the

evidence in the record .

Tag A0165: Risk Management - Adverse Incident Report

28 . AHCA also alleged that Dixie Lodge failed to prepare

and file adverse incident reports.

29 . Each ALF is required to file adverse incident reports

as set forth i n section 429.23 , which , in pertinent part,

provides:

(1) Every facility licensed under this part

may, as part of its administrative

functions, voluntarily establish a risk

management and quality assurance program,

the purpose of which is to assess resident

care practices, facility incident reports,

deficiencie s cited by the agency, adverse

incident reports, and resident grievances

and develop plans of action to correct and

respond quickly to identify quality

differences.

(2) Every facility licensed under this part

is required to maintain adverse incident

repo rts. For purposes of this section, the

term, Ðadverse incidentÑ means:

(a) An event over which facility personnel

could exercise control rather than as a

result of the residentÓs condition and

results in:

1. Death;

2. Brain or spinal damage;

3. Perma nent disfigurement;

4. Fracture or dislocation of bones or

joints;

5. Any condition that required medical

attention to which the resident has not

given his or her consent, including failure

to honor advanced directives;

6. Any condition that requires th e transfer

of the resident from the facility to a unit

providing more acute care due to the

incident rather than the residentÓs

condition before the incident; or

7. An event that is reported to law

enforcement or its personnel for

investigation; or

(b) Resident elopement, if the elopement

places the resident at risk of harm or

injury .

(3) Licensed facilities shall provide

within 1 business day after the occurrence

of an adverse incident, by electronic mail,

facsimile, or United States mail, a

prelimina ry report to the agency on all

adverse incidents specified under this

section. The report must include

information regarding the identity of the

affected resident, the type of adverse

incident, and the status of the facilityÓs

investigation of the inciden t.

(4) Licensed facilities shall provide

within 15 days, by electronic mail,

facsimile, or United States mail, a full

report to the agency on all adverse

incidents specified in this section. The

report must include the results of the

facilityÓs investigation i nto the adverse

incident.

30 . R ule 58A - 5.0241 iden tifies the requirements for filing

adverse incident reports as follows:

(1) INITIAL ADVERSE INCIDENT REPORT. The

preliminary adverse incident report required

by Section 429.23(3), F.S., must be

submit ted within 1 business day after the

incident pursuant to Rule 59A - 35.110,

F.A.C., which requires online reporting .

(2) FULL ADVERSE INCIDENT REPORT. For each

adverse incident reported in subsection (1)

above, the facility must submit a full

report withi n 15 days of the incident. The

full report must be submitted pursuant to

Rule 59A - 35.110, F.A.C., which requires

online reporting .

31 . AHCA alleged that Dixie Lodge was required to file an

adverse incident report for elopemen t incidents involving

Reside nt No s. 16 and 17 and an injury related to Resident No. 3.

32 . During the survey, the surveyor observed Resident

No. 3 with a one - inch laceration above his left eye that was

covered in dr ied blood. On September 9, 2015 , at 12:14 p.m.,

the surv eyor con ducted an interview of E mployee A. The surveyor

asked the assistant administrator about the laceration on

Resident No. 3Ós eye. The assistant administrator responded

that she learned of the injury at 10:30 a.m. AHCA took issue

with the lack of an advers e incident report. However, the

timeframe for preparing and filing a report had not expired.

Thus , AHCA did not demonstrate by clear and convincing evidence

the alleged deficiency for failure to file an adverse inci dent

report regarding Resident No. 3 .

33 . As ref e renced above , the adverse incident requirements

related to Resident No. 16 should not be imputed to Petitioner,

as Petitioner was not the owner of Dixie Lodge at the time of

the incident that would trigger the compliance requirement.

34 . At the time of the survey, approximate ly five days

after Resident No. 17 eloped, there was no documentation that a

one - day adverse incident report had been filed. The elopement

required a one - day adverse in cident report because

Resident No. 17 eloped and the incident involved law

enforcement. Thus, a citation for failure to complete an

adverse in cident report for the September 3, 2015, elopement

incident involving Resident No. 17, a C lass I I violation , is

supported by clear and convincing evidence .

35 . A review of the Report Book also revealed that

Resident No. 17 had eloped from the facility on September 8,

2015, and had not been found at the time of the survey on

September 9, 2015 , at 3:30 p.m. Although Resident No. 17 had

eloped , t he timeline for a on e - day adverse incident report had

not expired. Thus, t he Class II citation for failing to file a

one - day adverse incident report for the September 8, 2015 ,

elopement incident involving Resident No. 17 incident was not

supported by the evidence .

Allegatio ns Regarding Class III Deficiencies

36 . In addition to the Class II defi ciencies, the surveyor

cited 18 Class II I defi ciencies in the following areas:

(A0008) admissions - health assessment ; (A0026) resident care -

social and leisure activities ; (A0029) re sident care - nursing

services; (A0030) resident care - rights and facility procedures;

(A0052) medication - assistance with self - administration;

(A0054) medication - record s; (A0056) medication - labeling and

orders; (A0076) do not resuscitate orders; (A0077) staff ing

standards - administrators; (A0078) staffing standards - staff;

(A0081) training - staff in - service; (A0082) training - HIV/AIDS;

(A0083) training - first aid and CPR; (A0090) training - do not

resuscitate orders; (A0093) food service - dietary standards;

(A0160) re cords - facility; (A0 161) records - staff; and

(A0167) resident contracts.

37 . Section 400.23(8)(c) provides in part: ÐA citation

for a class III deficiency must specify the time within which

the deficiency is required to be corrected. If a class III

defici ency is corrected within the time specified, a civil

penalty may not be imposed.Ñ Section 408.811(4) provides that a

deficiency must be corrected within 30 calendar days after the

provider is notified of inspection results unless an alternative

timeframe is required or approved by the agency. Section

408.811(5) provides: Ð The agency may require an applicant or

licensee to submit a plan of correction for deficiencies. If

required, the plan of correction must be filed with the agency

within 10 calendar da ys after notification unless an alternative

timeframe is required .Ñ

38 . On September 17, 2015, AHCA sent Dixie Lodge a

Directed Plan of Correction (ÐDPOCÑ) .

39 . However, the DPOC was not offered at hearing. There

was testimony regarding the content of the DPOC , but that

testimony alone , without corroborating admissible evidence, is

not sufficient to support a finding of fact regarding

PetitionerÓs failure to comply with the DPOC .

40 . The Findings of F act below are made regarding the

Class III deficien cies alleged in subsection 2, paragraph 1 , of

the Seconded Amended NOID .

Tag A0008 : Admission - Health A ssessment

41. AHCA alleged that Dixie Lodge failed to ensure that it

obtained and maintained complete health assessments for Dixie

Lodge residents. Spe cifically, the Amended NOID alleged that

the file s for two residents were missing health assessments.

42. The first resident, Resident No. 16, allegedly had

been re - admitted after a seven - month absence from the facility

without an updated health assessme nt. While the r eadmission and

the initial time frame for updating the health assessment expired

before Petitioner took possession of the property, the facility

was responsible for updating the records so information is

available for the facility to determi ne the appropriate ness of

the residentÓs continuous stay in the facility. There is clear

and convincing evidence to demonstrate that Dixie Lodge violated

Tag A008 and that it indirectly or potentially poses a risk to

patients.

Tag A0026 : Resident Care - Social and Leisure

Activities

43. AHCA alleged that Dixie Lodge failed to ensure that

residents were provided a minimum weekly number of hours of

leisure and social activities. The log book reflected there were

no activities offered during the month of September 2015. There

is sufficient evidence to demonstrate that Dixie Lodge failed to

provide a minimum weekly number of hours of leisure and social

activities. Dixie Lodge Ó s failure to provide leisure and social

activities constitutes an indirect o r potential risk to

residents.

Tag A0029 : Resident Care - Nursing Services

44. AHCA alleged that Dixie Lodge failed to ensure that it

provided nursing services as required for resident care by

permitting a certified nursing assistant to change wound

dress ings instead of a nurse. The certified nursing assistant

did not testify, n or did the administrator. Therefore, there

was no admissible evidence to support the allegation.

Tag A0030 : Resident Care - Rights and Facility

Procedures

45. AHCA alleged Di xie Lodge failed to ensure resident sÓ

rights were addressed. Specifically, it is alleged that

residents had grievances regarding not being paid for gardening

labor performed , and Dixie LodgeÓs th en administrator

acknowledged those grievances. In addition, a resident reported

a grievance regarding the residentÓs roommate. T he

a dministrator acknowledged the grievances and admitted the

grievances were not documented. As a result, Dixie failed to

ensure resident s Ó rights were implemented.

Tag A0052 : Medication - Assistance /Self - Administration

46. AHCA alleged that Dixie Lodge failed to ensure that it

provided assistance with self - administration of medications for

residents . Specifically, Dixie Lodge failed to assist a

resident with self - administration of Depak ene (an anti - seizure

medication) . The resident self - administered two doses of the

medication without assistance . As a result , Dixie Lodge failed

to meet the parameters for self - administration.

Tag A0054 : Medication - Records

47. AHCA alleged that Dixi e Lodge fai led to maintain

accurate and up - to - date medication observation r ecords for

residents receiving assistance with self - administration of

medications by failing to properly document medication

administration. The medication administration records w ere not

offered at hearing. However, the surveyor testified about her

observation s while conducting the survey. Dixie Lodge did not

dispute her testimony. Thus, the evidence was clear and

convincing that Dixie Lodge failed to maintain accurate and up -

to - date medication observation records related to administration

of anti - psychotic medications .

Tag A0056 : Medication - Labeling and Orders

48. AHCA alleged that Dixie Lodge failed to ensure th at it

complied with requ ir ements to take reasonable steps to timely

re - fill medication prescriptions for residents. It was further

alleged that Dixie Lodge had not scheduled a face - to - face visit

for a patient as required to obtain a prescription refill.

However, there were no records offered at hearing to support the

allegations. The surveyorÓs testimony was based on an intervie w

she conducted with a resident and her review of medical records,

which was not corroborated by any admissible evidence. There is

no clear and convincing admissible evidence in the record to

support the violation.

Tag A0076 : Do Not Resuscitate Orders

49. AHCA alleged that Dixie Lodge failed to develop and

implement a policy and procedure related to ÐDo Not Resuscitate

Orders (ÐDNRs) .Ñ The AHCA surveyor relied upon statements made

durin g an interview by phone of Dixie Lodge employees. The

employees interviewed did not testify at hear ing. The testimony

presented by the surveyor was based on uncorroborated hear say ,

which could not be relied upon for a finding of fact.

Tag A0077 : R egardi ng Staffing S tandards - A dministrators

50. The surveyor noted that the administrator of record

failed to provide adequate supervision over the facility by

failing to notify the Agency of an adverse incident report for

three of the p atients sampled (i.e., Re sident No s. 3, 16,

and 17). The facts of the incidents are set forth above.

5 1. Regarding Resident No. 3, the evidence offered at

hearing was sufficient to demonstrate that the deficiency found

was appropriate. Regarding Resident No. 16, Petitioner w as not

the owner of the facility at the time of the residentÓs

elopement and , thus, Petitioner is not responsible for the

incident that occurred prior to it assuming ownership of the

facility. Regarding Resident No. 17, the evidence offered at

hearing was sufficient to demonstrate that the cited deficiency

was appropriate.

5 2. On November 6, 2015, the Agency conducted a follow - up

survey wherein the surveyor cited an uncorrected deficiency

regarding Tag A0077. No evidence was offered at hearing to

refut e the allegation that the deficiency was not corrected.

Thus, the Class III uncorrected deficiency citation was

appropriate. The evidence offered at hearing was sufficient to

demonstrate that the cited deficiency was appropriate.

Tag A0078 : Staffing S tandards - Staff

53. AHCA alleged that Dixie Lodge failed to ensure within

30 days that it had obtained and maintained in t he personnel

file of each direct health care provider , verification that the

staff member was free from commun icable disease. The sur veyor

testified that she reviewed the records for two staff members

and discovered there was no documentation in the personnel file

of the staff members to demonstrate complianc e with the

communicable disease - testing requirement. The evidence

presented at hearing support s a violation for the a llegations

related to Tag A0078, which is an indirect risk to residents.

Tag A 0081 : Training - Staff In - Service

54. AHCA alleged that Dixie Lodge failed to ensure that

staff members completed requir ed in - service trai ning programs,

including training related to HIV and AIDS. An employeeÓs file

contained a roster of staff members who completed a training

course in HIV and AIDS. Although the roster was not dated and

did not incl ude a certificate of completion, there wa s evidence

to demonstrate that the employee had completed the training.

Based on the evidence presented at hearing, t here was no clear

and convincing evidence that Petitioner failed to provide HIV

and AIDS training to staff.

Tag A0082 : Training - HIV/AIDS

55. AHCA alleged that Dixie Lodge failed to ensure that a

staff member had completed a req uired HIV/AIDS course within

30 days of employment. Specifically, the personnel file for

Employee B included a training roster which reflected that she

received the training. The surveyor noted that there was no

date on the roster and no certificate of completion. The

evidence of record demonstrates that Employee B completed the

training. Regarding maintaining documentation, the roster was

not offered into evidenc e to determine whether the requisite

information was included on the roster. In addition, Petitioner

had not assumed ownership of the facility during the time frame

that the training was required and , thus, there was not

sufficient evidence presented at he aring to demonstrate that

Petitioner is responsible for the alleged deficiency.

Tag A0083 : Training - First Aid and CPR

56. AHCA alleged that Dixie Lodge failed to ensure that a

staff member who had completed courses in First Aid and

Cardiopulmonary R esuscitation (ÐCPRÑ) was in the facility at all

time s . The allegation was supported by the record. The failure

to ensure at least one staff member on each shift is trained in

First Aid and CPR presents an indirect or potential risk to

patients.

Tag A 0090 : Training - Do Not Resuscitate Orders (DNRs)

57. AHCA alleged that Dixie Lodge failed to ensure that

staff members timely completed a required training course in

DNRs. The surveyorÓs r eview of the personnel file s of employees

A, B, and C revealed that th e file s did no t include sufficient

documentation to demonstrate that the three employees completed

required training in DNRs. Employees A and C had certificates

indicating that they completed the training , but the

certificates did not include the duration of the course.

Employee BÓs file did not include a certificate indicating she

completed the training within 30 days, as required. Based on

the evidence offered at the final hearing, t here is sufficient

clear and convincing evidence to support the citat ion for

Tag 0090.

Tag A0093 : F ood Service - Dietary Standards

58. AHCA alleged that Dixie Lodge failed to maintain a

three - day supply of food in case of an emerg ency. Specifically,

the surveyor observed that three proteins had expired. The

failure to ens ure sufficient resident nutrition is an indirect

risk to residents. There was clear and convincing evidence to

prove the cited deficiency.

Tag A 0160 : Records - Facility

59. AHCA alleged that Dixie Lodge failed to maintain

facility records for admission an d discharge. Specifically, a

review of the facilityÓs admission and disc harge log incorrectly

reflected that 80 residents resided in the facility. It was

discovered that the discharge log had not been updated to

reflect that five residents no longer resi ded in the facility.

The evidence supports the citation for a deficiency for failure

to properly maintain the discharge log .

Tag A0161 : Records - Staff

60. AHCA alleged that Dixie Lodge failed to maintain

personnel records with required documentation. Sp ecifically,

the Statement of Deficiencies alleges that the personnel files

of four Dixie Lodge employees did not include documentation of

required trainings. The surveyor reviewed personnel files for

the employees. Employees A, B , and C did not include

d ocumentation of first aid or CPR training. Employee DÓs file

did not include updated Level 2 eligibility records. Failure to

maintain proper and complete personnel files for employees does

not pose an indirect risk to residents so as to constitute a

clas s III violation.

Tag A0167 : Resident Contracts

61. AHCA alleged that Dixie Lodge failed to provide 30

days Ó notice prior to an increase in resident rates for

services. The surveyor reviewed the records of two residents

and discovered that the two reside nts receive d notice of the

rate increase less than 30 days before they were implemented .

However, the rate increase occurred prior to Dixie Lodge

assuming ownership of the facility. Thus, Petitioner was not

responsible for the rate increase notice and th erefore, there

was not sufficient evidence to support the deficiency .

Impact on Residents

62 . Petitioner seeks to maintain operation of the faci lity

so as not to prevent a negative impact on residents.

Marifrances Gullo, RN - C, MSN, FNP - BC, is the owner of Advanced

Practical Nursing Services, a behavioral health and addictions

management practice. She was accepted as an expert in the field

of psychiatric mental health nursing, and testified about the

lack of availability of appropriate placements for Di xie Lodge

residents should Dixie Lodge be closed . Nurse Gullo provides

mental health services to facilities such as Dixie Lodge. She

testified that the dislocation of Dixie Lodge residents would

likely lead to extremely detrimental effects on many reside nts .

63 . Edward Kornuszko , PsyD , was accepted as an expert in

the provision of psychiatr ic and mental health services.

Dr. Kornuszko has more than five years of experience seeking

residential placements for patients similarly situated to those

at Dixie Lodge . He testified that the task of placing up to

77 chronically ill Dixie Lodge residents at once would be

Ðnearly impossible.Ñ I f placements were found for resident s who

had been at Dixie Lod ge for at least 5 to 10 years, he would

expect to s ee Ðcons iderable decompensationÑ in these resident s .

Ultimate Findings of Fact

64 . AHCA demonstrated by clear and convincing evidence

that the cited deficiencies were appropriate for Tag A0165, a

Class II deficiency . There was also clear and convincing

evidence to demonstrate that the cited deficiencies were

appropriate for the following Class III deficiencies :

Tag A0008, Tag A 0026, Tag A0030, Tag A0052, Tag A0054,

Tag A0077, Tag A0078 , Tag A0083, Tag A0090, and Tag A0093.

65 . Dixie Lodge demonstrated a pot ential negative impact

on residents should Dixie Lodge close its doors .

CONCLUSIONS OF LAW

66 . The Division has jurisdiction of the parties and

subject matter of these proceedings. §§ 120.569 and 120.57(1),

Fla. Stat. (2017) .

67 . Section 408.806(7)(a) provides , in pertinent part,

" [ a] n 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. Ñ

68 . Section 42 9.19( 2) provides , in pertinent part:

Each violation of this part and adopted

rules shall be classified according to the

nature of the violation and the gravity of

its probable effect on facility residents.

The agency shall indicate the classification

on the w ritten notice of the violation as

follows:

* * *

(b) Class "II" violations are defined in

s. 408.813. The agency shall impose an

administrative fine for a cited class II

violation in an amount not less than $1,000

and not exceeding $5,000 for each viol ation.

(c) Class " III" violations are defined in

s. 408.813. The agency shall impose an

administrative fine for a cited class III

violation in an amount not less than $500

and not exce eding $1,000 for each violation .

69 . Section 429.14(1) provides , in pertinent part:

(1) In addition to the requirements of part

II of chapter 408, the agency may deny,

revoke, and suspend any license issued under

this part and impose an administrative fine

in the manner provided in chapter 120

against a licensee for a v iolation of any

provision of this part, part II of chapter

408, or applicable rules, or for any of the

following actions by a licensee, any person

subject to level 2 background screening

under s. 408.809 , or any facility staff:

(a) An intentional or negligent act

seriously affecting the health, safety, or

welfare of a resident of the facility.

* * *

(e) A citation for any of the following

violations as specified in s. 429.19 :

* * *

2. Three or more cited class II violations.

* * *

(k) Any act constituting a ground upon

which application for a license may be

denied.

70 . Section 408.815 provides, in pertinent :

(1) In addition to the grounds provided in

authorizing statutes, grounds that may be

used by the agency for deny ing and revoking

a license or change of ownership application

include any of the following actions by a

controlling interest:

* * *

(b) An intentional or negligent act

mat erially affecting the health or safety of

a client of the provider.

(c) A violat ion of this part, authorizing

statutes, or applicable rules.

(d) A demonstrated pattern of deficient

performance.

71 . AHCA seeks to deny Dixie LodgeÓs CHOW application.

Dixie Lodge has th e burden of proving that it meets all the

requirements for licen sure by the preponderance of the evidence.

72 . I n licensure denial actions, such as here , an agency

is required to prove by the preponderance of the evidence, the

acts or omi ssions, which disqualify the applicant from

licensure. See Fla. DepÓt of Transp . v. J.W.C. Co., Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981); Balino v . DepÓt of Health

and Rehab. Servs. , 348 So. 2d 34 9 (Fla. 1st DCA 1977).

73 . In contrast, the burden of proof to impose an

administrative fine is by clear and convincing evidence. This

principal was explained by the Florida Supreme Court in

Department of Ban king and Finance v. Osborne Stern and Company ,

670 So. 2d 932 (Fla . 1996). The Court wrote, Ð [t] he denial of

registration pursuant to section 517.161(6)(a), Florida Statutes

(1989), is not a sanction for the applicant's violation of the

statute, but rather the application of a regulatory

measure . . . . (citations omitted). The clear and convincing

evidence standard is also inconsistent with the discretionary

authority granted by t he Florida legislature to administrative

agencies responsible for regulating profession u nder th e State's

police power.Ñ Id . at 934. In reaching this conclusion, the

Court quoted from the opinion of Judge Booth in Ferris v.

Turlingto n , 510 So. 2d 292 (Fl a. 1987), explaining:

The general rule is that a party asserting

the affirmative of an issue has the burden

of presentin g evidence as to that issue .

Thus, the majority is correct in its

observation that appellants had the burden

of presenting evidence of their fitness for

registration. The majority is also correct

in its holding that the Department had the

burden of presenting evidence that

appellants had violated certain statutes and

were unfit for registration. The majority's

conclusion , however, that the Department had

the burden of presenting its proof of

appellants' unfitness by clear and

convincing evidence is wholly unsupported by

Florida law and inconsistent with the

fundamental principle that an applicant for

licensure bears the burden of ultimat e

persuasion at each and every step of the

licensure proceedings, regardless of which

party bears the burden of presenting certain

evidence. This holding is also equally

inconsistent with the principle that an

agency has particularly broad discretion in

d etermining the fitness of applicants who

seek to engage in an occupation the conduct

of which is a privilege rather than a right.

74 . The Ðclear and convincingÑ standard requires:

[T]hat 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 explicit and

the witnesses must be lacking in confus ion

as to the facts in issue. The evidence must

be of such weight that it produces in the

m ind of the trier of fact any belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

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

75 . Pursuant to the Amended NOID, AHCA seeks to deny Dixie

LodgeÓs CHOW application on sev eral different grounds.

76 . First, section 408.815( l)(b) provides that the Agency

may revoke or deny assisted living facility licensure where an

intentional or negligent ac t materially affects the health or

safety of a resident . Similarly, section 429.1 4(1)(a ) provides

that the Agency may revoke or deny assisted living facility

licensure where an intentional or negligent act seriously

affects the health, safety, or welfare of a resident.

77 . Here, AHCA demonstrated that Dixie Lodge failed to

prepare an adverse incident report after Resident No. 17 eloped.

This incident, alone, is not sufficient to demonstrate that

Dixie Lodge engaged in intentional or negligent acts affecting

the health, welfare , and safety of residents.

78 . Second , s ec tion 429.14(1) (e) provides that the Agency

may deny, revoke, and suspend any assisted living facility

licensure where the licensee, any person subject to level 2

background screening, or any facility staff are cited for three

or more Class II violations.

79 . Based on t he evidence presented at the final hearing ,

AHCA demonstrated that Dixie Lodge failed to comply with the

requirement to file an adverse incident report related to the

September 3, 2015 , elopement incident involving Resident No. 17.

Based on the foregoing , there was only sufficient evidence to

support one citation for deficient practices.

See § 408.813(2)(b), Fla. Stat. (2015). Therefore, AHCA did not

demonstrate that Dixie Lodge violated section 429.14(1)(e) .

80 . Third, i n addition to the Class II defi c ienc ies ,

section 429.14(1)(h) provides that AHCA may deny, revoke, and

suspend any assisted living facility licensure where a licensee

hold ing provisional licensure fails to meet min imum licensure

requirements of c hapter 429, p art I, gover ning assisted li ving

facilities; c hapter 408, p art II, covering a ll provider type s

under the authority of the Agency's regulation ; and

c hapter 58A - 5, governin g assisted living facilities. Similarly,

s ection 408.815(1)(c) provides that the Agency may revoke or

deny assis ted living facility licensure where the provider has

been shown to have violated the provisions of c hapter 429,

p art I, govern ing assisted living facilities; c hapter 408, p art

II, covering a ll provider type s under the authority of the

AHCA 's regulation; an d chapter 58A - 5, govern ing assisted living

facilities.

81 . These provisions do not mandate Agency action, b ut

rather grants discretion to AHCA by the Legislature's use of the

term Ð may. Ñ This provision does not limit the Agency's

consideration for licens ure action to only violations that reach

the most severe classifications of identified deficient

practice, but encompasses the totality of violations that the

Agency has identified.

82 . The Agency conducted a licensure survey on

September 9, 2015, to det ermine if Dixie Lodge , a provisional

licensee, met the minimum licensure standards of law. In

addition to the single C lass II deficient practices discussed

above, AHCA alleged that Dixie Lodge was non compliant with

18 other requirements.

83 . The Amende d NOID also asserts a s grounds for licensure

denial s ection 429.14(l)(k) , which provides for administrative

penalties for act s constituting a ground upon which applicati on

for a license may be denied.

84 . The Class I II deficient practices involved sever al

areas involving the operation of the facility. As stated by

AHCA in its PRO , t he scope of Dixie LodgeÓ s non compliance

supports the conclusion that Dixie LodgeÓs administrator failed

to exercise control over facility operations to ensure the

provision o f resident care and management of staff.

85 . The Agency has demonstrated that Dixie has failed to

demonstrate that its operations meet the minimum licensure

requirements of law.

86 . Fourth, section 408.815 (l)(d ) provi des that the Agency

may revoke or den y assisted living facility licensure based upon

a demonstrated pattern of deficient practice. The decision to

take licensure action is discretionary with the Agency.

87 . A Ð demonstra ted pattern of deficient practice Ñ is not

defined by law. See § 408.815 (l)(d), Fla. Stat. (2015). The

term Ðdemonstrated pattern of deficient performanceÑ is not

defined in rule or statute. There is no case law, which can be

relied upon to ascertain exactly what would constitute such a

pattern. In AHCA v. W.T. Holdings , Ca se No. 95 - 01 28 (Fla. DOAH

Sept. 30, 1996; AHCA Nov. 4, 1996), Administrative Law Judge

Parrish found a Ðpattern of deficienciesÑ to have existed. I n

that case, each of the deficiencies had been found to exist on

the basis of final orders that had been ent ered, not simply upon

the allegations set forth in a survey report.

88 . Here, the evidence presented at hearing support s the

cited deficiencies fo r a single Class II deficiency, Tag 0165,

and 10 Clas s III deficiencies , including Tag A0008 , Tag A0026,

Ta g A0030, Tag A0052, Tag A0054 , Tag A0077 , Tag A0078 ,

Tag A0083 , Tag A0090, and Tag A0093. The deficiencies

demonstrate issue s during t he provisional licensure . However,

the Second Amen ded NOID reflects that only one uncorrected

deficiency was found in t he follow - up survey. That being the

case, there is insufficient evidence to prove there was a

pattern of deficiencies.

89 . AHCA attempts to allege numerous citations based upon

the tag number under which they are cited. While some of the

defici encies w ere similar in nature , they were based on the same

incident or occurrence an d occurred during the same time frame.

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

clear that Dixie Lodge could be operated more efficiently , there

is insufficient evidence to deny the CHOW application based upon

a pattern of deficient performance. T he number of deficiencies

cited alone does not constitute a Ðpattern of deficient

performance.Ñ This concept fails to consider the nature of the

deficiencies, whether the deficiencies were challenged as

untrue, or whether the facility was provided a reasonable

opportunity to contest or correct the cit ed deficiencies .

91 . Based on the foregoing, Dixie Lodge failed to meet

certain minimum requirements during the provisio nal licensure

process, for which it was properly cited .

92 . However, the analysis does not end there. Dixie Lodge

demonstrated a significant negative impact on residents should

Dixie Lodge close its doors . C onsidering the population it

serves, the rel atively minor nature of the Class II violation

pro ven, and the fact that the evidence of the Class III

violations was uncorrected within the time allowed by AHCA

rules, the potential negative impact on residents would be far

to o great to warrant d enial of the CHOW application. Whether

AHCA elects to issue Dixie Lodge a conditional license is within

AHCAÓs discretion .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Agency for Health

Adm inistration , enter a final o rder rescinding its Amended

Notice of Intent to Deny Change of Ownership Application.

DONE AND ENTERED this 10th day of May , 2018 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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 10th day of May , 2018 .

ENDNOTE S

1/ Unless otherwise provided, citations herein to Florida

Statutes are to the 2017 codification, and citations to rules in

Florida Administrative Code are to the current versions, for

ease of reference.

2/ All of the Statements of Deficie ncies, or survey report s,

were admitted in evidence . However, Petitioner maintained an

objection to any hearsay statements contained within the survey

reports (such as surveyor statements describing what they were

told by residents whom they interviewed). Those statements are

not relied on as the sole basis for any finding of fact, but may

be considered to the extent they supplement or explain other

non - hearsay evidence. Further, any statements that qualify for

an exception to hearsay, such as party admi ssions

( see § 90.803(18), Fla. Stat.), may be relied on for findings of

fact. See Lee v. DepÓt of Health & Rehab. Servs. , 698 So. 2d

1194, 1200 - 1201 (Fla. 1997) (statements made to investigator by

employees regarding matters within the scope of their

empl oyment, contained in an investigative report, were

admissible again st the employer as admissions).

COPIES FURNISHED:

John F. Gilroy, III, Esquire

John F. Gilroy , III, P.A.

Post Office Box 14227

Tallahassee, Florida 32317

(eServed)

Thomas J. Walsh, II, Esquire

Agency for Health Care Administration

Suite 330D

525 Mirror Lake Drive North

St. Petersburg, Florida 33701

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Justin Senior, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Flo rida 32308

(eServed)

Shena Grantham, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahass ee, 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.