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.


View Dockets  
Summary: Consolidated cases: AHCA substantiated the allegations in the 8-count AC. An admin. fine of $4500 and survey fees of $1500 are appropriate. The Notice of Intent to Deny the ALF license should be upheld based on the repeated deficiencies proven at hearing.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 11/07/2017
Proceedings: Agency for Health Care Administration's Exception to Recommended Order filed.
PDF:
Date: 11/07/2017
Proceedings: Agency Final Order filed.
PDF:
Date: 11/03/2017
Proceedings: Agency Final Order
PDF:
Date: 09/26/2017
Proceedings: Recommended Order
PDF:
Date: 09/26/2017
Proceedings: Amended Recommended Order.
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.
PDF:
Date: 08/21/2017
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 08/21/2017
Proceedings: Agency's Proposed Recommended Order filed.
PDF:
Date: 08/21/2017
Proceedings: Notice of Filing (Affidavits' on Attorney's Fees) filed.
PDF:
Date: 08/01/2017
Proceedings: Notice of Filing Transcript.
Date: 07/31/2017
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 07/20/2017
Proceedings: Order on Pending Motions.
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).
PDF:
Date: 06/14/2017
Proceedings: Joint Pre-Hearing Stipulation filed.
PDF:
Date: 06/07/2017
Proceedings: Notice of Taking Depositions Duces Tecum filed.
PDF:
Date: 06/06/2017
Proceedings: Order Imposing Sanctions Against Petitioner.
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: 05/30/2017
Proceedings: Response to the Agency's Motion to Compel filed.
PDF:
Date: 05/26/2017
Proceedings: Motion for Sanctions filed.
PDF:
Date: 05/16/2017
Proceedings: Notice of Taking Depositions filed.
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).
PDF:
Date: 05/15/2017
Proceedings: Notice of Taking Depositions filed.
PDF:
Date: 05/15/2017
Proceedings: Order Canceling Hearing.
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: 05/09/2017
Proceedings: Motion to Relinquish Jurisdiction filed.
PDF:
Date: 05/09/2017
Proceedings: Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 05/01/2017
Proceedings: Order Denying Continuance of Final Hearing.
PDF:
Date: 04/27/2017
Proceedings: Joint Motion for Continuance filed.
PDF:
Date: 03/29/2017
Proceedings: Notice of Service of Agency's Second Request for Admissions filed.
PDF:
Date: 03/28/2017
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/28/2017
Proceedings: Notice of Hearing (hearing set for May 17 and 18, 2017; 9:00 a.m.; Fort Myers, FL).
PDF:
Date: 03/27/2017
Proceedings: Order of Consolidation (DOAH Case Nos. 17-1589 and 17-1591).
PDF:
Date: 03/17/2017
Proceedings: Initial Order.
PDF:
Date: 03/16/2017
Proceedings: Petition for Formal Hearing filed.
PDF:
Date: 03/16/2017
Proceedings: Administrative Complaint filed.
PDF:
Date: 03/16/2017
Proceedings: Notice (of Agency referral) 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

Related DOAH Cases(s) (2):

Related Florida Statute(s) (19):

Related Florida Rule(s) (1):