17-001589
Agency For Health Care Administration vs.
Rsc Hidden Oaks Of Fort Myers, D/B/A Hidden Oaks Of Fort Myers
Status: Closed
Recommended Order on Tuesday, September 26, 2017.
Recommended Order on Tuesday, September 26, 2017.
1S TATE OF FLORIDA
5DIVISION OF ADMINISTRATIVE HEARINGS
9AGENCY FOR HEALTH CARE
13ADMINISTRATION,
14Petitioner,
15vs. Case No. 17 - 1589
21RSC HIDDEN OAKS OF FORT MYERS,
27d/b/a HIDDEN OAKS OF FORT MYERS,
33Respondent.
34_______________________________/
35RSC HIDDEN OAKS OF FOR T MYERS,
42d/b/a HIDDEN OAKS OF FORT MYERS,
48Petitioner,
49vs. Case No. 17 - 1591
55AGENCY FOR HEALTH CARE
59ADMINISTRATION,
60Respondent.
61_______________________________/
62RECOMMENDED ORDER
64Pursuant to notice, a final hearing was held in this matter
75before Lynne A. Quimby - Pennock, Administrative Law Judge with the
86Division of Administrative Hearings (DOAH), on June 19 and 20,
962017, in Fort Myers, Florida.
101APPEARANCES
102For the Agency for Health Care Administration :
110Tho mas J. Walsh, II, Esquire
116Agency for Health Care Administration
121Suite 330
123525 Mirror Lake Drive North
128St. Petersburg, Florida 33701
132For RSC Hidden Oaks of Fort Myers, d/b/a Hidden Oaks of
143Fort Myers :
146Shaddrick Haston, Esquire
149Suite 103
1511618 Mahan Cent er Boulevard
156Tallahassee, Florida 32308
159STATEMENT OF THE ISSUE S
164The issues in these consolidated cases are whether the
173Agency for Health Care Administration (AHCA or Agency) should
182discipline (including the imposition of administrative fines and
190survey f ees) RSC Hidden Oaks Fort Myers LLC, d/b/a Hidden Oaks of
203Fort Myers (Hidden Oaks) , for the statutory and rule violations
213alleged in the December 29, 2016 , Administrative Complaint ; and
222whether AHCA should renew the assisted living facility (ALF)
231license h eld by Hidden Oaks.
237PRELIMINARY STATEMENT
239On December 29, 2016, AHCA issued an eight - count
249Administrative Complaint (AC) seeking to impose an administrative
257fine of $4,500.00 and survey fees of $1,500.00 on Hidden Oaks .
271AHCA sought to impose the administr ative fine and survey fees
282pursuant to sections 429.19(2)(b), (2) (c), (7), and (10), Florida
292Statutes (2016 ). Hidden Oaks timely filed a P etition for F ormal
305Hearing (P etition) contesting the factual basis in the AC. On
316Mar ch 16, 2017, AHCA referred the P etition to DOAH, where it was
330designated DOAH Case No. 17 - 1589.
337On January 17, 2017, AHCA issued a ÐNotice of Intent to Deny
349for the Assisted Living Facility Renewal ApplicationÑ (NOID) to
358Hidden Oaks. The NOID alleged Hidden Oaks failed to meet the
369minim um licensure requirements pursuant to: section 408, p art II,
380Florida Statutes; section 429, p art III, Florida Statutes (2016) ;
390and Florida Administrative Code Rule 59A - 35. Further, the NOID
401advised that pursuant to sections Ð 408.815(1)(c), 429.14(h), Ñ an d
412rule 59A - 35.060(6)(c), the renewal application was denied. Hidden
422Oaks timely requested a hearing, and on March 16, 2017, the matter
434was referred to DOAH, where it was designated DOAH Case No. 17 -
4471591.
448The parties filed a ÐJoint Response to Initial Orde r and
459Joint Motion to ConsolidateÑ on March 24, 2017. On March 27,
4702017, an Order was issued consolidating the two cases. A Joint
481Motion for Continuance was filed on April 27, 2017 , which was
492denied. Thereafter, AHCA filed a Motion to Relinquish
500Jurisdi ction and Hidden Oaks timely filed its response. A case
511status telephonic hearing was held on May 12, 2017. As a result
523of the telephonic hearing, an Order Canceling the May 17 and 18,
5352017 , hearing was issued. On May 16, 2017 , an Order Re scheduling
547Hea ring was issued.
551On May 26, 2017, AHCA filed a Motion for Sanctions based on
563Hidden Oaks Ó failure to file responses to discovery requests. A
574telephonic motion hearing was held on June 5, 2017, and a separate
586Order Imposing Sanctions Against Hidden Oaks wa s issued on June 6,
5982017. 1/
600At hearing, AHCA called the following witnesses to testify:
609Jonathon Kummer, environmental specialist II (ES) for the Florida
618Department of Health (DOH); AHCA employees: Jon Seehawer, an AHCA
628field office manager; Nancy Furdell , Claire McGillivray, and
636Daniel Turbyfill, AHCA s urveyors; Laura Werts, a n AHCA health
647facility evaluator supervisor; Jon Alter, a n AHCA health facility
657evaluator; and Robin Heimann, Wendy Snyder, Paul Asdale, and Lisa
667Humphrie s, AHCA r egi stered n urse (RN ) specialists. Hidden Oaks
680called the following witnesses to testify on its behalf: Rob
690Icard, Hidden OaksÓ current facility administrator ; and Argen is
699Gomez, Hidden OaksÓ director of maintenance.
705AHCAÓs Exhibits A thro ugh V 2/ were received in evidence.
716Hidden Oaks Exh ibits A through I and K ( pages 1, 2, 4, 5, 7, 8,
733and 37 through 40) were received in evidence . 3/
743At the conclusion of the first day of hearing, Hidden OaksÓ
754counsel made an ore tenus motion asking th e undersigned to make an
767onsite visit. T he undersigned took the motion under advisement,
777and at the start of the second hearing day, the ore tenus motion
790was denied.
792Hidden Oaks subpoenaed its former executive director,
799Danielle Inman , to testify at the hearing. Ms. Inman f ailed to
811appear and H idden OaksÓ counsel motioned for the hearing record to
823remain open to allow Ms. InmanÓs deposition to be taken. Counsel
834for AHCA did not object, and Hidden Oaks was granted 30 days
846(until July 20, 2017) in which to depose Ms. Inman.
856On July 19, 2017, Hidd en Oaks filed a motion seeking to close
869the hearing record and to establish an alternate date for the
880post - hearing proposed orders to be filed. The Inman deposition
891transcript was not filed , and by an Order dated July 20, 2017, the
904hearing record was clos ed. The alternate date for submission of
915post - hearing orders was not set because the hearing transcript had
927not been filed and no submission date had been set .
938The two - volume hearing Transcript was filed on July 31, 2017.
950On August 1, 2017, the parties w ere advised, via a Notice of
963Filing, that any proposed orders were to be filed on or before the
976close of business on August 21, 2017. Each party timely filed
987their proposed order, and each has been reviewed in the
997preparation of this Recommended Order. 4 /
1004Unless otherwise stated, all statutory references are to the
1013codification of the Florida Statutes in effect at the time of the
1025alleged violations. All rule references are to the Florida
1034Administrative Code rules in effect at the time of the alleged
1045violat ions.
1047Prior to the hearing, the parties submitted a pre - hearing
1058stipulation. Relevant factual stipulations are included in the
1066Findings of Fact . 5 /
1072FINDING S OF FACT
10761. Hidden Oaks holds an ALF license issued by AHCA ,
1086number 5531. Hidden Oaks is located at 3625 Hidden Tree Lane,
1097Fort Myers, Flo rida, and has a capacity of 110 beds. At all times
1111material hereto, Hidden Oaks was required to comply with all
1121applicable rules and statute s for its continued operation.
11302. AHCA is the state agency charged with t he licensure and
1142regulatory oversight of ALFs and enforcement of applicable state
1151statutes and rules governing ALFs pursuant to chapters 429,
1160part I, and 408, p art II, and Florida Administrative Code
1171Chapters 59A - 5 and 59A - 35.
11793. AHCA is responsible for conducting ALF surveys annually
1188to determine compliance with Florida Statutes and rules. Surveys
1197may be classified as annual inspections or complaint
1205investigations. Section 408.813(2) provides that AHCA must
1212classify deficiencies (violations) according to the nature and
1220scope of the deficiency when the criteria for the facility
1230operations are not met. A Class II violation is defined as:
1241[ T ] hose conditions or occurrences related to
1250the operation and maintenance of a provider or
1258to the care of clients wh ich the agency
1267determines directly threaten the physical or
1273emotional health, safety, or security of the
1280clients, other than class I violations. The
1287agency shall impose an administrative fine as
1294provided by law for a cited class II
1302violation. A fine shal l be levied
1309notwithstanding the correction of the
1314violation.
1315A Class III violation is defined as:
1322[ T ] hose conditions or occurrences related to
1331the operation and maintenance of a provider or
1339to the care of clients which the agency
1347determines indirectly or potentially threaten
1352the physical or emotional health, safety, or
1359security of clients, other than class I or
1367class II violations. The agency shall impose
1374an administrative fine as provided in this
1381section for a cited class III violation. A
1389citation for a class III violation must
1396specify the time within which the violation is
1404required to be corrected. If a class III
1412violation is corrected within the time
1418specified, a fine may not be imposed.
1425§ 408.813(2)(b) and (2) (c).
14304 . AHCA takes specific steps in s urveying facilities and
1441making decisions as to appropriate actions to be undertaken. Once
1451AHCA writes a citation, enumerating the violations, the facility
1460is given 30 days to make the corrections or repairs. After the
147230 - day period ends, AHCA revisits t he facility to check on the
1486violations that prompted the citation(s). In typical cases, the
1495cited facility has responded to the citation(s), and the first
1505revisit finds the violations corrected; that ends the process. In
1515the event the original violations have not been corrected and/or
1525additional violations are discovered, another revisit may occur.
15335. In addition to the AHCA surveys, DOH is charged with
1544conducting environmental health inspections to ensure the health
1552quality of ALFs. These health inspec tions are conducted on an
1563annual basis. Should a health inspection be deemed
1571unsatisfactory , DOH provides a date certain for the facility to be
1582re - inspected. High - risk violations could include trip hazards;
1593abrasion hazards; sanitation conditions related to human or animal
1602waste products (urine or feces); cleanliness of bed linens
1611(including mattresses and box springs); and sanitary procedures of
1620the housekeeping staff. Low - risk violations could include
1629furniture that no longer has a cleanable surface or insufficient
1639room lighting without any other hazard present.
16466. On October 29, 2015, Surveyor Furdell conducted an
1655unannounced complaint survey at Hidden Oaks. During this survey,
1664the facility was found to have the following deficiencies: dirty,
1674staine d or frayed carpets; dirty or stained floors in rooms and
1686bathrooms; floor linoleum peeling up near toilets ; cracks in other
1696linoleum; holes or nails in various walls; rusted out and
1706inoperable stoves; dirty, missing or broken dresser drawers; dirty
1715window s or curtains; closet doors missing in some rooms; and a
1727lack of toilet paper in most bathrooms in the memory care unit. A
1740citation was issued based on these Class III deficiencies.
17497. On November 18, 2015, ES Kummer conducted an inspection
1759of Hidden Oak s. ES Kummer observed the following violations:
1769significant maintenance deficiencies; a lack of vermin control;
1777soiled bedding, towels and personal items; and loose medication or
1787toxic substances issues. Based on these observations, the
1795inspection was m arked unsatisfactory. A notice of violation was
1805issued to Hidden Oaks and signed for by Argenis Gomez. Hidden
1816Oaks was advised that a revisit would be on December 8, 2015.
18288. On December 8, 2015, ES Kummer conducted a re - inspection
1840of Hidden Oaks. ES K ummer observed the following cleanliness
1850issues: dirty sheets and linens; dirty walls; dirty floors;
1859soiled mattresses; the strong smell of urine; and feces on
1869mattresses. He also saw loose medications and other possible trip
1879hazards. Based on the numbe r of violations observed, Hidden Oaks
1890was advised the inspection was unsatisfactory, and if the
1899violations were not corrected by a revisit date of December 22,
19102015, the matter would be referred to the legal department.
19209. On December 9, 2015, an unannoun ced follow - up survey was
1933conducted at Hidden Oaks by Agency S urveyor McGillivray. During
1943this survey, the facility was found to have the following
1953deficiencies in the memory care unit: a strong urine odor 6 / ;
1965dried feces on a residentÓs shoes; missing win dow blind wands or
1977no curtains 7 / ; ceiling lights were not working; ceiling vents were
1989dirty; ceiling tiles were stained; a shower wall was caving in;
2000and some floors and walls were in disrepair. Additionally , she
2010observed: dirty mattresses; torn box - spri ngs; missing dresser
2020drawer handles; stained carpets and floors; dust on the walls; and
2031a loose shower grab bar. A citation was issued based on these
2043Class III deficiencies.
204610. As part of her duties, A gency S urve yor McGillivray also
2059observed other regul atory violations involving medication issues
2067for Hidden Oaks residents.
2071 One resident, whose health assessment documented a need
2080for as sistance with her medication, actual ly had the
2090medication sitting next to her beds ide.
2097 Residents were refusing to take the ir medication, however
2107there was no documentation that their health care
2115professionals were notified of the refusal, or that the
2124refusal was documented in the residentsÓ medica tion
2132observation record (MOR).
2135 Another resident was not receiving medication bec ause
2144there was none in the medication cart. There was no
2154indication that the health care professional had been
2162contacted to obtain a refill.
2167A citation was issued based on these multiple Class III
2177deficiencies.
217811. On December 22, 2015, ES Kummer conduct ed a re -
2190inspection of Hidden Oaks. ES Kummer again observed serious
2199violations regarding cleanliness and maintenance issues.
2205ES Kummer observed fecal matter in the same area as it was seen
2218in his prior inspections. Based on the number of violations
2228obs erved, Hidden Oaks was advised the inspection was
2237unsatisfactory . Hidden Oaks was advised that a return inspection
2247would be on January 12, 2016.
225312. On January 12, 2016, ES Kummer conducted a re -
2264inspection of Hidden Oaks. ES Kummer again observed cleanl iness
2274issues: feces present on residentÓs shoes and wall; dirty
2283mattress covers, bed linens, tub, and sink; and ants in the
2294kitchenette . He also found maintenance issues : floors peeling
2304near toilets (moisture present); loose toilets; broken windows;
2312and insufficient lighting. For some reason, ES Kummer checked
2321ÐSatisfactory,Ñ yet provided four pages of issues that needed to
2332be corrected.
233413. On Februar y 9, 2016, an unannounced follow - up survey
2346was conducted at Hidden Oaks by RN Heimann. This survey wa s
2358completed to determine whether the issues cited during AHCAÓs
2367December 9, 2015 , survey had been corrected. The following
2376deficiencies were observed: laminate flooring continued to be in
2385disrepai r (peeling up and/ or uneven in places); walls were in
2397disr epair 8 / ; carpets remained stained; ceiling tiles were stained;
2408and a strong urine odor was present in the memory care unit. A
2421citation was issued based on these Class III deficiencies.
243014. On March 28, 2016, an unannounced follow - up survey was
2442conducted at Hidden Oaks by RN Snyder. This survey was completed
2453to determine whether the issues cited during the February 9,
24632016 , survey had been corrected. The following deficiencies
2471remained outstanding: the flooring continued to be in disrepair;
2480the walls an d ceiling continued to be in disrepair; and there was
2493a smell of urine. A citation was issued based on these Class III
2506deficiencies.
250715. Between May 23 and 26, 2016, an unannounced follow - up
2519survey was conducted at Hidden Oaks by supervisor Werts. This
2529survey was completed in conjunction with a complaint survey and
2539in collaboration with the county health department to determine
2548whether the issues cited during the previous three revisits had
2558been corrected. The following violations were observed: carpet s
2567remained in disrepair; holes still found in the walls; and a
2578sprinkler head and other electrical outlets were not flush with
2588the walls. She also observed: feces on floors, shoes, clothing
2598or smeared on walls; ceiling tiles dropped in at least one room
2610because of a water leak; peeling wallpaper; and urine stains on
2621the floor. In one room, dead bed bugs were seen on the mattress
2634and the floor was damaged. When the mattress was raised, a
2645container with dried urine was found. In another room, the
2655carpet was damaged such that it presented a tripping hazard to
2666all who entered. Supervisor Werts photographed the bedbugs,
2674floor damage, carpet damage, sprinkler head, and ceiling tile
2683damage.
268416. Supervis or Werts observed a Hidden Oaks employee with a
2695mop and liquid solution, cleaning up urine or feces in one room.
2707That same employee then went to the next room and, without
2718changing or cleaning the mop and liquid solution, used the same
2729to mop the next area.
273417. Supervisor Werts, who has over 30 years of exper ience,
2745issued a citation regarding resid entÓs rights, based on the long -
2757term deficiencies noted above. The citation was for failing to
2767have a safe and clean living environment .
277518. ES Kummer conducted an annual inspect ion of Hidden Oaks
2786from May 23 throu gh May 26, 2016. ES Kummer observed: dirty
2798beds and linens; rust - c olored water; feces (including a soiled
2810adult diaper in the bushes in the facilityÓs garden area) ; loose
2821medications; full sharps container; trip hazards; cracked
2828flooring; and dogs in the facility without proper rabies
2837vaccinations or documentation of same. ES Kummer saw staff using
2847the same bucket of water to clean urine and feces off the floor
2860in one room, and then go to another room and use the same bucket
2874to clean that floor. The pho tographs attached to AHCAÓs
2884Exhibit M provided an appalling picture of the living conditions
2894at Hidden Oaks. Based on the number of violations observed,
2904Hidden Oaks was advised the inspect ion was unsatisfactory, and
2914was advised that a return inspection w ould be on July 5, 2016.
292719. On July 5, 2016, ES Kummer conducted a re - inspection
2939of Hidden Oaks. He returned on July 6, 2016 , to complete the
2951re - inspection. During the two - day inspection ES Kummer again
2963observed: trips hazards; abrasion hazards; dir ty floors;
2971loose grab bars; and cleanliness issues throughout the areas.
2980ES Kummer also observed Hidden Oaks staff using a bucket of water
2992and mop to clean up urine in one room and then using the same
3006bucket of water and mop to clean in another area. T he
3018photographs attached to AHCAÓs Exhibit N provided a grim picture
3028of the living conditions at Hidden Oaks. Based on the number of
3040violations observed, Hidden Oaks was advised the inspec tion was
3050unsatisfactory, and was advised that a return inspection wo uld be
3061on July 26, 2016.
306520. On July 26, 2016, ES Kummer conducted a re - inspection
3077of Hidden Oaks. He also returned on July 27, 2016 , to complete
3089the re - inspection. He did not observe any appreciable
3099improvement in the conditions at Hidden Oaks. His ob servations
3109included: dirty floors; floors in disrepair; furniture in
3117disrepair; wet underwear hanging from a door handle; and feces on
3128different surfaces. ES Kummer also smelled urine throughout the
3137facility. The photographs attached to AHCAÓs Exhibit O provided
3146an unattractive picture of the living conditions at Hidden Oaks.
3156Based on the number of violations observed, Hidden Oaks was
3166advised the inspection was unsatisfactory. Hidden Oaks was
3174advised that a return inspection would be on August 22, 2016 .
318621. On July 27, 2016, an unannounced follow - up survey was
3198conducted at Hidden Oaks by RN Asdale. This s urvey was conducted
3210as a follow - up to prior surveys combined with three complaints.
3222The following deficiencies were observed: rusty facets, sinks o r
3232drains; dirty floors; dirty carpets; soiled, ripped, stained or
3241missing mattress covers; stained mattresses; pinwheel worms in
3249common areas and rooms; doors in disrepair; and caulking in
3259disrepair or missing altogether. These violations are classified
3267a s Class III.
327122. During this survey, RN Asdale found two residents who
3281were not receiving their medication s according to their health
3291assessment forms. One resident had returned to Hidden Oaks with
3301a prescription for a pain killer. His prescription ran out and
3312for four days he did not receive the prescribed pain medication.
3323The other resident did not receive her seizure medication for
3333three or four days. These violations are classified as Class II.
334423. RN Humphries was also at Hidden Oaks during the
3354July 27, 2016 , survey. The following violations were observed:
3363numerous pinwheel worms on the carpets, in sink drains, in shower
3374drains, and in the ceiling fixtures. These violations were
3383Class III.
338524. RN Humphries also conducted medications complian ce
3393reviews. She determined that one resident needed medication
3401which was not being administered . Regarding a different
3410resident, RN Humphries could not determine from the MOR whether
3420the resident was continually refusing her medication or the
3429medication wasnÓt being provided. These violations were
3436Class III.
343825. On August 29, 2016, ES Kummer conducted a re - inspection
3450of Hidden Oaks. ES Kummer observed: trips hazards; abrasion
3459hazards; dirty floors; loose grab bars; and cleanliness issues
3468throughout t he facility. The photographs attached to AHCAÓs
3477Exhibit P showed the substandard living conditions at Hidden
3486Oaks. Based on the number of violations observed, Hidden Oaks
3496was advised the inspection was unsatisfactory, and the matter was
3506r eferred to legal .
351126. On October 6, 2016, an unannounced follow - up survey was
3523conducted at Hidden Oaks by health facility evaluator Alter.
3532Evaluator Alter performed a staff training review. Three members
3541of the Hid den Oaks staff, who had been on site for at least four
3556m onths , did not have certificates evidencing they had received
3566proper training to perform their duties. When staff is not
3576properly trained, staff cannot provide proper care, which could
3585cause injury or harm to residents. These violations are
3594Class III.
35962 7. Additionally, Evaluator Alter noted that Hidden Oaks
3605staff was not posting the daily menus for residents, as required.
3616Residents could not know what options they had for each meal.
3627This violation is a Class III.
363328. Agency S urveyor Turbyfill is a re gistered nurse who
3644also participated in t he survey at Hidden Oaks in Fort Myers with
3657Evaluator Alter. Agency S urveyor Turbyfill conducted a
3665medication review and discovered that medication ordered to be
3674provided two hours before the morning meal was actua lly being
3685given after the meal had been eaten. Hidden OaksÓ staff was not
3697following the doctorÓs orders. The effectiveness of the
3705medication may be altered by some foods. Additionally, on two
3715occasions, Agency S urveyor Turbyfill observed that staff was not
3725telling residents what medication they were being given.
373329. Argenis Gomez worked for Ðthe company (Hidden Oaks)
3742about three years.Ñ He initially worked as a Ðmed techÑ and
3753resident caregiver (RCA) for Hidden Oaks. While working as the
3763med tech and RCA, he would come in on weekends to do odd jobs,
3777such as paint ing . The prior executive director noted his work
3789and hired Mr. Gomez as the maintenance director. 9 / Mr. Gomez does
3802not have any prior training to be a maintenance director.
3812Further, he admit ted that once he became the maintenance director
3823he found there was too much work for one person, and a part - time
3838assistant was h ired. There are now three full - time maintenance
3850workers at Hidden Oaks.
385430. It remains unclear when Hidden Oaks actually enga ged
3864Mr. Gomez as its maintenance director. During his testimony , he
3874claimed to be the maintenance director for about a year, which
3885would be about June 2016, give or take a month or two. However,
3898testimony by both ES Kummer and Mr. Gomez corroborate that
3908Mr. Gomez accompanied the inspectors when they arrived at Hidden
3918Oaks. Evidence as to how long Mr. Gomez had been working as the
3931maintenance director is found on AHCA Exhibit I, which reflects
3941that he signed the November 18, 2015 , inspection report. The
3951undersigned finds that it is highly improbable that a Ðmed techÑ
3962or RCA would have the authority to accept a citation or
3973inspection report.
397531. Mr. Gomez acknowledged the multiple violations at
3983Hidden Oaks to include: feces inside and around the grounds , the
3994disrepair of various furnishings, the smell of urine within
4003Hidden Oaks, and the lack of caulking at certain fixtures.
4013Mr. Gomez took notes as to what needed to be addressed, but
4025conceded that he did not have time to check on what should have
4038been corrected. In some instances , outside contractors were
4046necessary, but some repairs were inadequate at best . Mr. Gomez
4057did not have the time to check on those repairs .
406832 . In addition to his maintenance duties, Mr. Gomez was
4079also in charge of supervising the housekeeping staff. He again
4089admitted that he could not effectively supervise the four
4098housekeepers. Thereafter, Hidden Oaks eng aged a housekeeper
4106supervisor.
410733. To his credit, Mr. Gomez determined the cause of the
4118l oose toilets. He determined th at prior workers failed to fix
4130the moisture issues at various toilets. Prior workers had merely
4140placed more flooring over the old flooring, instead of rippi ng
4151out the water - damaged flooring at the base of the toilet.
4163However, despite determining how to c orrect t he problem,
4173Mr. Gomez did not correct it, and the problem persisted .
418434. On November 29, 2016, ES Kummer conducted a re -
4195inspection of Hidden Oaks. ES Kummer observed: trips hazards;
4204abrasion hazards; dirty floors; loose grab bars; leaks at the
4214water main; and cleanliness issues throughout the facility. The
4223photographs attached to AHCAÓs Exhibit Q showed the living
4232conditions at Hidden Oaks. Based on the number of violations
4242observed, Hidden Oaks was advised the inspection was
4250unsatisfactory, a nd the matter was referred to legal.
425935. In January 2017, RN Humphries conducted an unannounced
4268follow - up survey at Hidden Oaks. With respect to one resident,
4280Hidden OaksÓ staff was not providing medication as prescribed in
4290the resident Ó s health assessme nt form. The direction was for the
4303medication to be administered Ðon an empty stomach,Ñ which is
4314usually two to four hour s before meals, to allow for proper
4326absorption. In this instance, the resident was provided the
4335medication at 7:15 a.m., and went to breakfast at 7:30 a.m.
434636. There were numerous surveys or inspections conducted on
4355Hidden Oaks over 15 months. Each survey or inspection recorded
4365numerous violations, either Class II or Class III, which Hidden
4375Oaks failed to timely address.
4380CONCLUSIONS O F LAW
438437 . The Division of Administrative Hearings has jurisdiction
4393over the parties to and the subject matter of this proceeding
4404pursuant to sections 120.569 and 120.57(1), Florida Statutes.
441238. This case combines an AC to assess fines on various
4423grounds (DOAH Case No. 17 - 1589) and the denial of an application
4436to renew an ALF on some of the same grounds (DOAH Case No. 17 -
44511591). A threshold legal issue to be determined is the burden of
4463proof to apply.
446639 . The burden of proof in DOAH Case No. 17 - 1589 is o n AHCA
4483to prove the allegations in its Administrative Complaint by clear
4493and convincing evidence. Dep Ó t of Banking & Fin. v. Osborne Stern
4506& Co. , 670 So. 2d 932, 933 - 34 (Fla. 1996) ; Ferris v. Turlington ,
4520510 So. 2d 292 (Fla. 1987).
452640 . The Supreme Court has stated:
4533Clear and convincing evidence requires that
4539the evidence must be found to be credible; the
4548facts to which the witnesses testify must be
4556distinctly remembered; the testimony must be
4562precise and lacking in confusion as to the
4570facts in issue. T he evidence must be of such
4580a weight that it produces in the mind of the
4590trier of fact a firm belief or conviction,
4598without hesitancy, as to the truth of the
4606allegations sought to be established.
4611In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomo witz v.
4624Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
463441. The burden of proof in DOAH Case No. 17 - 1591 is on AHCA ,
4649as its stated intention is to deny the renewal of Hidden OaksÓ
4661license is tantamount to revoking the license. See Wilson v. Pest
4672Contro l CommÓ n , 199 So. 2d 777, 781 (Fla. 4th 1967). AHCA Ós
4686burden of persuasion on this issue is by clear and convincing
4697evidence. Coke v. Dep Ó t of Child. & Fam. Servs. , 704 So. 2d 726
4712(Fla. 5th DCA 1998); Dubin v. DepÓ t of Bus. Reg. , 262 So. 2d 273,
4727274 (Fla . 1st DCA 1972); DepÓ t of Banking & Fin., Div. of Sec. &
4743Investor Prot. v. Osborne Stern & Co. , supra .
475242. Section 429.28 provides in pertinent part:
4759(1) No resident of a facility shall be
4767deprived of any civil or legal rights,
4774benefits, or privileges gu aranteed by law,
4781the Constitution of the State of Florida, or
4789the Constitution of the United States as a
4797resident of a facility. Every resident of a
4805facility shall have the right to:
4811(a) Live in a safe and decent living
4819environment, free from abuse and neglect.
4825(b) Be treated with consideration and
4831respect and with due recognition of personal
4838dignity, individuality, and the need for
4844privacy.
4845* * *
4848(3) (c) During any calendar year in which no
4857survey is conducted, the agency shall conduct
4864at lea st one monitoring visit of each facility
4873cited in the previous year for a class I or
4883class II violation, or more than three
4890uncorrected class III violations.
489443. Rule 58A - 5.0185 provides in pertinent part:
4903Pursuant to Sections 429.255 and 429.256,
4909F.S., and this rule, licensed facilities may
4916assist with the self - administration or
4923administration of medications to residents in
4929a facility. A resident may not be compelled
4937to take medications but may be counseled in
4945accordance with this rule.
4949* * *
4952(3) ASSISTANCE WITH SELF - ADMINISTRATION.
4958(a) Any unlicensed person providing
4963assistance with self administration of
4968medication must be 18 years of age or older,
4977trained to assist with self administered
4983medication pursuant to the training
4988requirements of Rule 58A - 5.0191, F.A.C., and
4996must be available to assist residents with
5003self - administered medications in accordance
5009with procedures described in Section 429.256,
5015F.S. and this rule.
5019(b) In addition to the specifications of
5026Section 429.256(3), F.S., assi stance with
5032self - administration of medication includes
5038verbally prompting a resident to take
5044medications as prescribed.
5047(c) In order to facilitate assistance with
5054self - administration, trained staff may prepare
5061and make available such items as water, juic e,
5070cups, and spoons. Trained staff may also
5077return unused doses to the medication
5083container. Medication, which appears to have
5089been contaminated, must not be returned to the
5097container.
5098(d) Trained staff must observe the resident
5105take the medication. A ny concerns about the
5113residentÓs reaction to the medication or
5119suspected noncompliance must be reported to
5125the residentÓs health care provider and
5131documented in the residentÓs record.
5136(e) When a resident who receives assistance
5143with medication is away fr om the facility and
5152from facility staff, the following options are
5159available to enable the resident to take
5166medication as prescribed:
51691. The health care provider may prescribe a
5177medication schedule that coincides with the
5183residentÓs presence in the facil ity;
51892. The medication container may be given to
5197the resident, a friend, or family member upon
5205leaving the facility, with this fact noted in
5213the residentÓs medication record;
52173. The medication may be transferred to a
5225pill organizer pursuant to the requ irements of
5233subsection (2), and given to the resident, a
5241friend, or family member upon leaving the
5248facility, with this fact noted in the
5255residentÓs medication record; or
52594. Medications may be separately prescribed
5265and dispensed in an easier to use form, such
5274as unit dose packaging;
5278(f) Assistance with self - administration of
5285medication does not include the activities
5291detailed in Section 429.256(4), F.S.
52961. As used in Section 429.256(4)(h), F.S.,
5303the term Ðcompetent residentÑ means that the
5310resident is cognizant of when a medication is
5318required and understands the purpose for
5324taking the medication.
53272. As used in Section 429.256(4)(i), F.S.,
5334the terms ÐjudgmentÑ and ÐdiscretionÑ mean
5340interpreting vital signs and evaluating or
5346assessing a residentÓs cond ition.
5351* * *
5354(5) MEDICATION RECORDS.
5357(a) For residents who use a pill organizer
5365managed in subsection (2), the facility must
5372keep either the original labeled medication
5378container; or a medication listing with the
5385prescription number, the name and address of
5392the issuing pharmacy, the health care
5398providerÓs name, the residentÓs name, the date
5405dispensed, the name and strength of the drug,
5413and the directions for use.
5418(b) The facility must maintain a daily
5425medication observation record (MOR) for e ach
5432resident who receives assistance with self -
5439administration of medications or medication
5444administration. A medication observation
5448record must include the name of the resident
5456and any known allergies the resident may have;
5464the name of the residentÓs heal th care
5472provider, the health care providerÓs telephone
5478number; the name, strength, and directions for
5485use of each medication; and a chart for
5493recording each time the medication is taken,
5500any missed dosages, refusals to take
5506medication as prescribed, or med ication
5512errors. The medication observation record
5517must be immediately updated each time the
5524medication is offered or administered.
5529(c) For medications that serve as chemical
5536restraints, the facility must, pursuant to
5542Section 429.41, F.S., maintain a rec ord of the
5551prescribing physicianÓs annual evaluation of
5556the use of the medication.
5561* * *
5564(7) MEDICATION LABELING AND ORDERS.
5569(a) The facility may not store prescription
5576drugs for self - administration, assistance with
5583self - administration, or admi nistration unless
5590it is properly labeled and dispensed in
5597accordance with Chapters 465 and 499, F.S. and
5605Rule 64B16 - 28.108, F.A.C. If a customized
5613patient medication package is prepared for a
5620resident, and separated into individual
5625medicinal drug containe rs, then the following
5632information must be recorded on each
5638individual container:
56401. The residentÓs name; and
56452. Identification of each medicinal drug in
5652the container.
5654(b) Except with respect to the use of pill
5663organizers as described in subsection (2), no
5670individual other than a pharmacist may
5676transfer medications from one storage
5681container to another.
5684(c) If the directions for use are Ðas neededÑ
5693or Ðas directed,Ñ the health care provider
5701must be contacted and requested to provide
5708revised instruc tions. For an Ðas neededÑ
5715prescription, the circumstances under which it
5721would be appropriate for the resident to
5728request the medication and any limitations
5734must be specified; for example, Ðas needed for
5742pain, not to exceed 4 tablets per day.Ñ The
5751revise d instructions, including the date they
5758were obtained from the health care provider
5765and the signature of the staff who obtained
5773them, must be noted in the medication record,
5781or a revised label must be obtained from the
5790pharmacist.
5791(d) Any change in direc tions for use of a
5801medication for which the facility is providing
5808assistance with self - administration or
5814administering medication must be accompanied
5819by a written medication order issued and
5826signed by the residentÓs health care provider,
5833or a faxed or elec tronic copy of such order.
5843The new directions must promptly be recorded
5850in the residentÓs medication observation
5855record. The facility may then place an
5862ÐalertÑ label on the medication container that
5869directs staff to examine the revised
5875directions for use in the medication
5881observation record, or obtain a revised label
5888from the pharmacist.
5891(e) A nurse may take a medication order by
5900telephone. Such order must be promptly
5906documented in the residentÓs medication
5911observation record. The facility must obtain
5917a written medication order from the health
5924care provider within 10 working days. A faxed
5932or electronic copy of a signed order is
5940acceptable.
5941(f) The facility must make every reasonable
5948effort to ensure that prescriptions for
5954residents who receive assis tance with self -
5962administration of medication or medication
5967administration are filled or refilled in a
5974timely manner.
5976(g) Pursuant to Section 465.0276(5), F.S. and
5983Rule 61N - 1.006, F.A.C., sample or
5990complimentary prescription drugs that are
5995dispensed by a health care provider, must be
6003kept in their original manufacturerÓs
6008packaging, which must include the
6013practitionerÓs name, the residentÓs name for
6019whom they were dispensed, and the date they
6027were dispensed. If the sample or
6033complimentary prescription drug s are not
6039dispensed in the manufacturerÓs labeled
6044package, they must be kept in a container that
6053bears a label containing the following:
60591. PractitionerÓs name;
60622. ResidentÓs name;
60653. Date dispensed;
60684. Name and strength of the drug;
60755. Directions for use; and
60806. Expiration date.
6083(h) Pursuant to Section 465.0276(2)(c), F.S.,
6089before dispensing any sample or complimentary
6095prescription drug, the residentÓs health care
6101provider must provide the resident with a
6108written prescription, or a faxed or el ectronic
6116copy of such order.
612044. Florida Administrative Code Rule 58A - 5.019 provides in
6130pertinent part:
6132(2) STAFF.
6134* * *
6137(b) Staff must be qualified to perform their
6145assigned duties consistent with their level of
6152education, training, preparat ion, and
6157experience. Staff providing services
6161requiring licensing or certification must be
6167appropriately licensed or certified. All
6172staff must exercise their responsibilities,
6177consistent with their qualifications, to
6182observe residents, to document observ ations on
6189the appropriate residentÓs record, and to
6195report the observations to the residentÓs
6201health care provider in accordance with this
6208rule chapter.
6210(c) All staff must comply with the training
6218requirements of Rule 58A - 5.0191, F.A.C.
622545. Rule 58A - 5. 191 provides in pertinent part:
6235(2) STAFF IN - SERVICE TRAINING. Facility
6242administrators or managers shall provide or
6248arrange for the following in - service training
6256to facility staff:
6259(a) Staff who provide direct care to
6266residents, other than nurses, cer tified
6272nursing assistants, or home health aides
6278trained in accordance with Rule 59A - 8.0095,
6286F.A.C., must receive a minimum of 1 hour
6294in - service training in infection control,
6301including universal precautions, and facility
6306sanitation procedures before provi ding
6311personal care to residents. Documentation of
6317compliance with the staff training
6322requirements of 29 CFR 1910.1030, relating to
6329blood borne pathogens, may be used to meet
6337this requirement.
6339(b) Staff who provide direct care to
6346residents must receive a minimum of 1 hour
6354in - service training within 30 days of
6362employment that covers the following subjects:
63681. Reporting major incidents.
63722. Reporting adverse incidents.
63763. Facility emergency procedures including
6381chain - of - command and staff roles relatin g to
6392emergency evacuation.
6394(c) Staff who provide direct care to
6401residents, who have not taken the core
6408training program, shall receive a minimum of
64151 hour in - service training within 30 days of
6425employment that covers the following subjects:
64311. Resident rights in an assisted living
6438facility.
64392. Recognizing and reporting resident abuse,
6445neglect, and exploitation.
6448(d) Staff who provide direct care to
6455residents, other than nurses, CNAs, or home
6462health aides trained in accordance with
6468Rule 59A - 8.0095, F .A.C., must receive 3 hours
6478of in - service training within 30 days of
6487employment that covers the following subjects:
64931. Resident behavior and needs.
64982. Providing assistance with the activities
6504of daily living.
6507(e) Staff who prepare or serve food, who have
6516not taken the assisted living facility core
6523training must receive a minimum of 1 - hour - in -
6535service training within 30 days of employment
6542in safe food handling practices.
6547(f) All facility staff shall receive in -
6555service training regarding the facilityÓs
6560resident elopement response policies and
6565procedures within thirty (30) days of
6571employment.
65721. All facility staff shall be provided with
6580a copy of the facilityÓs resident elopement
6587response policies and procedures.
65912. All facility staff shall demonstra te an
6599understanding and competency in the
6604implementation of the elopement response
6609policies and procedures.
6612* * *
6615(12) TRAININ G DOCUMENTATION AND MONITORING.
6621(a) Except as otherwise noted, certificates,
6627or copies of certificates, of any traini ng
6635required by this rule must be documented in
6643the facilityÓs personnel files. The
6648documentation must include the following:
66531. The title of the training program;
66602. The subject matter of the training
6667program;
66683. The training program agenda;
66734. Th e number of hours of the training
6682program;
66835. The traineeÓs name, dates of
6689participation, and location of the training
6695program;
66966. The training providerÓs name, dated
6702signature and credentials, and professional
6707license number, if applicable.
6711(b) Upon successful completion of training
6717pursuant to this rule, the training provider
6724must issue a certificate to the trainee as
6732specified in this rule.
6736(c) The facility must provide the Department
6743of Elder Affairs and the Agency for Health
6751Care Administration with training
6755documentation and training certificates for
6760review, as requested. The department and
6766agency reserve the right to attend and monitor
6774all facility in - service training, which is
6782intended to meet regulatory requirements.
678746 . Rule 58A - 5.023 pr ovides in pertinent part:
6798(3) OTHER REQUIREMENTS.
6801(a) All facilities must:
68051. Provide a safe living environment pursuant
6812to Section 429.28(1)(a), F.S.;
68162. Be maintained free of hazards; and
68233. Ensure that all existing architectural,
6829mechanical, e lectrical and structural systems,
6835and appurtenances are maintained in good
6841working order.
6843* * *
6846(e) Facilities must make available linens and
6853personal laundry services for residents who
6859require such services. Linens provided by a
6866facility must be free of tears, stains and
6874must not be threadbare.
687847 . Rule 58A - 5.024 provides in pertinent part:
6888(2) STAFF RECORDS.
6891(a) Personnel records for each staff member
6898must contain, at a minimum, a copy of the
6907employment application, with references
6911furni shed, and documentation verifying freedom
6917from signs or symptoms of communicable
6923disease. In addition, records must contain
6929the following, as applicable:
69331. Documentation of compliance with all staff
6940training and continuing education required by
6946Rule 58 A - 5.0191, F.A.C.;
69522. Copies of all licenses or certifications
6959for all staff providing services that require
6966licensing or certification;
69693. Documentation of compliance with level 2
6976background screening for all staff subject
6982to screening requirements as specified in
6988Section 429.174, F.S. and Rule 58A - 5.0 19,
6997F.A.C.;
69984. For facilities with a licensed capacity of
700617 or more residents, a copy of the job
7015description given to each staff member
7021pursuant to Rule 58A - 5.019, F.A.C.;
70285. Documentation verifying direct care staff
7034and administrator participation in resident
7039elopement drills pursuant to paragraph 58A -
70465.0182(8)(c), F.A.C.
704848 . Rule 59A - 35.060, Licensure Application Process, provides
7058in pertinent part:
7061( 6) An application is considered complete
7068upon receipt of:
7071(a) All required documents and information
7077and appropriate fee;
7080(b) All required background screening
7085results; and,
7087(c) Completion of a satisfactory inspection
7093if required by authorizing statutes or rules.
7100Satisfactory inspection means n o regulatory
7106violations exist, or all prior violations
7112found have been determined by the Agency to be
7121corrected.
712249 . Section 408. 813 provides in pertinent part:
7131Administrative fines; violations. Ï As a penalty
7138for any violation of this part, authorizing
7145st atutes, or applicable rules, the agency may
7153impose an administrative fine.
7157* * *
7160(2) Violations of this part, authorizing
7166statutes, or applicable rules shall be
7172classified according to the nature of the
7179violation and the gravity of its probable
7186effect on clients. The scope of a violation
7194may be cited as an isolated, patterned, or
7202widespread deficiency. An isolated deficiency
7207is a deficiency affecting one or a very
7215limited number of clients, or involving one or
7223a very limited number of staff, or a situation
7232that occurred only occasionally or in a very
7240limited number of locations. A patterned
7246deficiency is a deficiency in which more than
7254a very limited number of clients are affected,
7262or more than a very limited number of staff
7271are involved, or th e situation has occurred in
7280several locations, or the same client or
7287clients have been affected by repeated
7293occurrences of the same deficient practice but
7300the effect of the deficient practice is not
7308found to be pervasive throughout the provider.
7315A widespr ead deficiency is a deficiency in
7323which the problems causing the deficiency are
7330pervasive in the provider or represent
7336systemic failure that has affected or has the
7344potential to affect a large portion of the
7352providerÓs clients. This subsection does not
7358af fect the legislative determination of the
7365amount of a fine imposed under authorizing
7372statutes. Violations shall be classified on
7378the written notice as follows:
7383* * *
7386(b) Class ÐIIÑ violations are those
7392conditions or occurrences related to the
7398op eration and maintenance of a provider or to
7407the care of clients which the agency
7414determines directly threaten the physical or
7420emotional health, safety, or security of the
7427clients, other than class I violations. The
7434agency shall impose an administrative fi ne as
7442provided by law for a cited class II
7450violation. A fine shall be levied
7456notwithstanding the correction of the
7461violation.
7462(c) Class ÐIIIÑ violations are those
7468conditions or occurrences related to the
7474operation and maintenance of a provider or to
7482the care of clients which the agency
7489determines indirectly or potentially threaten
7494the physical or emotional health, safety, or
7501security of clients, other than class I or
7509class II violations. The agency shall impose
7516an administrative fine as provided in this
7523section for a cited class III violation. A
7531citation for a class III violation must
7538specify the time within which the violation is
7546required to be corrected. If a class III
7554violation is corrected within the time
7560specified, a fine may not be imposed.
756750 . Section 429.14 provides in pertinent part:
7575(1) In addition to the requirements of
7582part II of chapter 408, the agency may deny,
7591revoke, and suspend any license issued under
7598this part and impose an administrative fine in
7606the manner provided in chapter 120 against a
7614licensee for a violation of any provision of
7622this part, part II of chapter 408, or
7630applicable rules, or for any of the following
7638actions by a licensee, any person subject to
7646level 2 background screening under s. 408.809,
7653or any facility staff:
7657* * *
7660(h) Failure of the license applicant, the
7667licensee during relicensure, or a licensee
7673that holds a provisional license to meet the
7681minimum license requirements of this part, or
7688related rules, at the time of license
7695application or renewal.
76985 1 . Section 429.19(2) provides in pertinent part:
7707(2) Each violation of this part and adopted
7715rules shall be classified according to the
7722nature of the violation and the gravity of its
7731probable effect on facility residents. The
7737agency shall indicate the classification on
7743the written notice of the violation as
7750follows:
7751* * *
7754(b) Class ÐIIÑ violations are defined in
7761s. 408.813 . The agency shall impose an
7769administrative fine for a cited class II
7776violation in an amount not less than $1,000
7785and no t exceeding $5,000 for each violation.
7794(c) Class ÐIIIÑ violations are defined in
7801s. 408.813 . The agency shall impose an
7809administrative fine for a cited class III
7816violation in an amount not less than $500 and
7825not exceeding $1,000 for each violation.
783252 . Section 408. 815 provides in pertinent part:
7841(1) In addition to the grounds provided in
7849authorizing statutes, grounds that may be used
7856by the agency for denying and revoking a
7864license or change of ownership application
7870include any of the following acti ons by a
7879controlling interest:
7881* * *
7884(c) A violation of this part, authorizing
7891statutes, or applicable rules.
789553 . Count I alleges that Hidden Oaks failed to: provide a
7907safe living environment pursuant to section 429.28(1)(a); be
7915maintained fr ee of hazards; and ensure that all existing
7925architectural, mechanical, electrical and structural systems and
7932appurtenances were main tained in good working order. These
7941violations constituted Class III deficiencies. The allegations
7948were proven by clear an d convincing evidence .
795754 . Count II re - alleges all the paragraphs in C ount I. It
7972allege s that in addition to any administrative fines imposed, AHCA
7983Ðmay assess a survey fee equal to the lesser of one half of a
7997facilityÓs biennial license and bed fee or $ 500, to cover the cost
8010of conductingÑ an initial complaint investigation that is
8018conducted pursuant to section 429.28(3)(c) and results in a
8027finding of the complained violation . The basis to impose t he
8039survey fee was proven.
804355 . Count III alleges that AH CA completed a third re visit
8056survey of Hidden Oaks and found identified deficiencies that were
8066cited on previous surveys, which constituted Class III offenses,
8075as defined i n section 429.19(2)(c), above. The allegations were
8085proven by clear and convincing evidence .
809256 . Cou nt IV was the result of AHCA re visiting Hidden Oaks
8106to determine whether previously cited deficiencies had been
8114corrected. The deficiencies had not been corrected. The
8122allegations were proven by clear and convincing evidence .
81315 7 . Count V detailed conditions found at a third re visit to
8145Hidden Oaks regarding alleged failures Ðto maintain a clean and
8155safe environment for residents . Ñ This continual failure
8164constituted an uncorrected Class III deficient practice for the
8173third time. The all egations were proven by clear and convincing
8184evidence .
818658 . Count VI alleges that AHCA, on another revisit to Hidden
8198Oaks , found its continued failure to ensure a safe and decent
8209living environment, free from abuse and neglect . Th e residents
8220were not bein g treated with consideration and respect regarding
8230their personal dignity, individuality, or the need for privacy in
8240their environs. Hidden Oaks was again cited with a Class III
8251deficiency and afforded the requisite 30 days to correct the
8261conditions. Suc h corrections were not evident when AHCA revisi ted
8272Hidden Oaks 30 days later. The allegations were proven by clear
8283and convincing evidence .
828759 . Count VII alleges that Hidden Oaks failed to ensure that
8299residentsÓ medications were filled o r refilled in a t imely manner.
8311The allegations were proven by clear and convincing evidence .
832160 . Count VIII re - alleges that a survey fee may be imposed
8335should those deficiencies fail to be corrected during the
8344applicable time following notification of the deficiencies. The
8352basis to impose t he survey fee was proven.
836161 . Under section 408.815(1)(d), AHCA may deny a license for
8372a Ð demonstrated pattern of deficient performance. Ñ There is no
8383case law construing this phrase. An a ccepted definition of the
8394word Ð pattern Ñ is: Ð a reliable sample of traits, acts,
8406tendencies, or other characteristics of a person, group, or
8415institution . Ñ Merriam - Webster Online Dictionary (2017 ). The
8426repeated violations amount to a troubling pattern.
84336 2 . The evidence was clear and convincing tha t Hidden Oaks
8446was not in compliance with the minimal requirements to maintain an
8457ALF. The violations noted from the multiple surveys and
8466inspections, while relatively minor , reflect a troubling pattern
8474of deficient performance involving inadequate staffin g, inadequate
8482supervision , and in appropriate attention to the cleanliness and
8491maintenance of the ALF and its residents. Despite notification of
8501the deficiencies, Hidden Oaks failed to appreciate their
8509significance and correct them. Those violations can b e considered
8519in determining whether AHCA proved a pattern of deficient
8528performance that would warrant license discipli ne under section
8537408.815(1)(d) . AHCA proved the allegation by clear and convincing
8547evidence.
85486 3 . Based on these allegations, AHCA seeks to impose
8559$4,500.00 in administrative fines and $1,500.00 in survey fees.
85706 4 . An applicant for renewal of an ALF license must
8582demonstrate compliance with the authorizing statutes and
8589applicable rules during an inspection pursuant to section 408.811,
8598as re quired by authorizing statute s. § 408.806(7)(a), Fla. Stat.
860965 . AHCA presented clear and convi ncing evidence that Hidden
8620Oaks failed to maintain a clean and safe environment for its
8631residents.
863266 . AHCA presented clear and convincing evidence that Hidden
8642Oaks committed multiple C lass III violations within six months and
8653failed to correct those violations in a timely manner.
8662RECOMMENDATION S
8664Based on the foregoing Findings of Fact and Conclusions of
8674Law, it is RECOMMENDED that the Agency for Health Care
8684Adm inistration enter a final order finding that the AC
8694allegations were proven by clear and convincing evidence , fining
8703the facility a total of $6,000.00 ($4,500.00 in administrative
8714fines and $1,500.00 in survey fees) ; and denying Hidden Oaks
8725license renewal application . 10 /
8731DONE AND ENTERED this 2 5th day of September , 2017 , in
8742Tallahassee, Leon County, Florida.
8746S
8747LYNNE A. QUIMBY - PENNOCK
8752Administrative Law Judge
8755Division of Administrative Hearings
8759The DeSoto Building
87621230 Ap alachee Parkway
8766Tallahassee, Florida 32399 - 3060
8771(850) 488 - 9675
8775Fax Filing (850) 921 - 6847
8781www.doah.state.fl.us
8782Filed with the Clerk of the
8788Division of Administrative Hearings
8792this 2 5th day of September, 2017 .
8800ENDNOTE S
88021/ That Order stated in per tine nt part:
88112. The Motion for Sanctions is granted to
8819the extent that AHCA is entitled to
8826attorneyÓs fees and costs as it relates to
8834the review of the late filed material in
8842response to the RFP, the creation and filing
8850of the Motion for Sanctions. Such aff idavit
8858as to the amount of attorneyÓs fees and costs
8867associated with these tasks shall be attached
8874to any proposed recommended order submitted
8880following the hearing in this matter. Hidden
8887Oaks shall be afforded an opportunity to
8894respond solely to AHCAÓs a ffidavit for
8901attorneyÓs fees and costs no later than ten
8909days after such affidavit is filed. The
8916undersigned shall issue an order with respect
8923to the sanctions once the deadline for Hidden
8931OaksÓ response expires.
8934The undersigned did not find an affidavit attached to the
8944proposed recommended order.
89472 / AHCAÓs Exhibits R through V were inspection reports or surveys
8959completed by AHCA, the Department of Health, or the local county
8970health department after the dates listed in either the AC or the
8982NOID. (empha sis added).
89863 / Hidden Oaks provided pictures of its facility , which were
8997taken after the AC and the NOID were issued.
90064/ Hidden OaksÓ proposed recommended order is replete with
9015grammatical and typographical errors making it virtually
9022incomprehensible, and therefore of no assistance to this process.
90315/ Hidden Oaks provided responses to AHCAÓs First Request for
9041Admissions. AHCA attached those responses to the pre - hearing
9051stipulation averring that ÐHidden Oaks has admitted some material
9060facts related to the allegations.Ñ Of the twelve responses
9069provided: one does not reflect any response; five statements are
9079ÐDENIED Ñ ; and of the remaining six responses admitted, one
9089involved two residents paying for their own transportation to
9098physician appointments in contravention to Hidden OaksÓ
9105contractual obligation to provide transportation and five
9112involved employees who failed to receive required training in a
9122timely or documented manner.
91266/ Surveyor McGillivray is a licensed registered nurse with years
9136of exp erience. I n describing the permeating odor of urine, she
9148testified that the odor was so strong ÐIt kind of made my eyes
9161water because the door shut behind me.Ñ
91687/ Missing blinds or a lack of curtains are issues that go
9180directly to each residentsÓ right to privacy and is a personal
9191dignity issue.
91938/ The holes in the walls had been spackled or caulked, but the
9206surface was not sanded, finished or painted, thus creating an
9216abrasion hazard.
92189 / Prior to hiring Mr. Gomez as the maintenance director, Hidden
9230OaksÓ prior maintenance director had been on medical leave for
9240two to three months. Outside service individuals were called in
9250to address issues.
925310 / AHCA should provide for sufficient time to allow the current
9265residents to relocate.
9268COPIES FURNISHED:
9270Shaddrick Haston, Esquire
9273Suite 103
92751618 Mahan Center Boulevard
9279Tallahassee, Florida 32308
9282(eServed)
9283Thomas J. Walsh, II, Esquire
9288Agency for Health Care Administration
9293Suite 330
9295525 Mirror Lake Drive North
9300St. Petersburg, Florida 33701
9304(eServed)
9305R ichard J. Shoop, Agency Clerk
9311Agency for Health Care Administration
93162727 Mahan Drive, Mail Stop 3
9322Tallahassee, Florida 32308
9325(eServed)
9326Justin Senior, Secretary
9329Agency for Health Care Administration
93342727 Mahan Drive, Mail Stop 1
9340Tallahassee, Florida 3230 8
9344(eServed)
9345William Roberts, Acting General Counsel
9350Agency for Health Care Administration
93552727 Mahan Drive, Mail Stop 3
9361Tallahassee, Florida 32308
9364(eServed)
9365Shena L. Grantham, Esquire
9369Agency for Health Care Administration
93742727 Mahan Drive, Mail Stop 3
9380T allahassee, Florida 32308
9384(eServed)
9385Thomas M. Hoeler, Esquire
9389Agency for Health Care Administration
93942727 Mahan Drive, Mail Stop 3
9400Tallahassee, Florida 32308
9403(eServed)
9404NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
9410All parties have the right to submit written exceptions within
942015 days from the date of this Recommended Order. Any exceptions
9431to this Recommended Order should be filed with the agency that
9442will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 11/07/2017
- Proceedings: Agency for Health Care Administration's Exception to Recommended Order filed.
- PDF:
- Date: 09/26/2017
- Proceedings: Amended Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 09/26/2017
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 09/26/2017
- Proceedings: Recommended Order (hearing held June 19 and 20, 2017). CASE CLOSED.
- Date: 07/31/2017
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- PDF:
- Date: 07/19/2017
- Proceedings: Motion to Close Record & Request for Alternative Proposed Recommended Order Date filed.
- Date: 06/19/2017
- Proceedings: CASE STATUS: Hearing Held.
- Date: 06/16/2017
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
- Date: 06/05/2017
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 06/02/2017
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for June 5, 2017; 4:00 p.m.).
- PDF:
- Date: 05/16/2017
- Proceedings: Order Re-scheduling Hearing (hearing set for June 19 and 20, 2017; 9:00 a.m.; Fort Myers, FL).
- Date: 05/12/2017
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 05/10/2017
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for May 12, 2017; 11:00 a.m.).
- PDF:
- Date: 05/10/2017
- Proceedings: Response to Motion to Relinquish Jurisdiction/Motion to Accept Untimely Admissions filed.
- PDF:
- Date: 05/09/2017
- Proceedings: Respondent's Notice of Service of Responses to Respondent's First Set of Discovery Request (filed in Case No. 17-001591).
- PDF:
- Date: 05/09/2017
- Proceedings: Unilateral Pre-hearing Stipulation (filed in Case No. 17-001591).
- PDF:
- Date: 03/29/2017
- Proceedings: Notice of Service of Agency's Second Request for Admissions filed.
Case Information
- Judge:
- LYNNE A. QUIMBY-PENNOCK
- Date Filed:
- 03/16/2017
- Date Assignment:
- 03/17/2017
- Last Docket Entry:
- 11/07/2017
- Location:
- Fort Myers, Florida
- District:
- Middle
- Agency:
- Other
Counsels
-
Shaddrick Haston, Esquire
Suite 103
1618 Mahan Center Boulevard
Tallahassee, FL 32308
(407) 968-5111 -
Thomas J Walsh, II, Esquire
Agency for Health Care Administration
Suite 330
525 Mirror Lake Drive North
St. Petersburg, FL 33701
(727) 552-1525 -
Thomas J Walsh, II, Esquire
Address of Record -
Thomas J. Walsh, II, Esquire
Address of Record -
Shaddrick A. Haston, Esquire
Address of Record -
Shaddrick A Haston, Esquire
Address of Record