18-000435 Angelcare With A Vision vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, May 31, 2018.

Summary: Petitioner did not prove existence of good cause warranting an extension of time concerning its licensure application responses.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELCARE WITH A VISION,

Petitioner,

vs. Case No. 18 - 0435

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notic e, a final administrative hearing was

conducted in this case before Administrative Law Judge R. Bruce

McKibben of the Division of Administrative Hearings (ÐDOAHÑ) , on

April 16, 2018, in Tallahassee, Florida.

APPEARANCES

For Petitioner: John E. Terrel, Esq uire

John E. Terrel, P.A.

Suite 11 - 116

1700 North Monroe Street

Tallahassee, Florida 32303

For Respondent: D. Carlton Enfinger, Esquire

Agency for Health Care Administr ation

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this case is whether the withdrawal of a

licensure application filed by Petitioner, Angelcare With A

V ision (ÐAngelcareÑ), by Respondent, Agency for Health Care

Administration (ÐAHCAÑ or the ÐAgencyÑ), was warranted.

PRELIMINARY STATEMENT

In correspondence dated September 7, 2017, the Agency

notified Angelcare that its application for licensure as an

assis ted living facility ( ÐALFÑ) had been deemed incomplete and

was being withdrawn from further consideration. The effect of

the correspondence was that AngelcareÓs request for a license

could not be approved. Angelcare timely filed a Petition for

Formal Adm inistrative Hearing, which was forwarded to DOAH on

January 26, 2018. The case was assigned to the undersigned

Administrative Law Judge and a final hearing was conducted as

set forth above.

At final hearing, Angelcare calle d three witnesses:

Tammy Ceasor ; Isabelle Kalms ; and Caszie Hart . Angelcare

Exhibits 1 through 6 and 8 through 12 were admitted into

evidence. AHCA did not call any additional witnesses; its

Exhibits 8 and 9 were admitted. Joint Exh ibit 1 was admitted.

Official r ecognition was taken of Executive Order No. 17 - 235.

The T ranscript of the final hearing was filed at DOAH on

May 15, 2018. T he parties each timely filed a Proposed

Recommended O rder and each was considered in the preparation of

this Recommended Order.

FINDING S OF FACT

1 . Angelcare is a Florida not - for - profit corporation,

incorporated on June 4, 2015. It has remained a corporation in

good standing since that date. The primary officer/director of

the corporation is Tammy Ceasor.

2 . AHCA is the state agency re sponsible for, inter alia,

the licensing and monitoring of ALFs in this state.

3 . On November 14, 2016, Angelcare submitted an

application to AHCA for licensure of a n eight - bed ALF, to be

located at 1817 Aaron Road, Tallahassee, Florida. AHCA notifi ed

Angelcare through Tammy Ceasor that there were ÐissuesÑ

associated with the application. The parties engaged in

protracted discussions concerning those issues and, on August 4,

2017, entered into a Se ttlement Agreement - Î adopted by Final

Order - Î resolvin g the issues. Pursuant to terms of the agreement

between the parties , AHCA recommenced its review of AngelcareÓs

application for licensure .

4 . On the same date the Final Order was entered , AHCA

issued an omissions letter, setting forth items that we re still

required from Angelcare in order to complete the licensure

application. Responsive information or documentation from

Angelcare was due at AHCA on or before August 25, 2017.

5 . On August 24, 2017 (just one day before its omissions

responses were due at AHCA) , Angelcare notified AHCA by way of

email that it was unable to obtain an inspection from the fire

department , which had Ðtoo many pressing matters to complete the

inspection after being contacted earlier this month.Ñ Angelcare

therefore requested an extension until September 1, 2017, to

submit the inspection report. I sabelle Kalms, the AHCA

reviewer with whom Angelcare had been working, responded via

email that the extension request was granted; Angelcare had

until September 1 , 2017, to submit the fire inspection report.

Later that same day, Angelcare requested that all omissions

responses be due on August 29, 2017; Ms. Kalms granted that

request as well.

6 . By email on August 29, 2017, at 5:54 p.m.,

Angelcare - Î through its atto rney John Terrell -- asked for Ðfurther

indulgence by AHCAÑ concerning the omissions responses. 1/

Attorney Terrell noted that the passage of time since the

application was first submitted had resulted in some changes ,

including a change in location of the p roposed ALF . T he

location of the ALF would be in Chattahooch e e, Florida , rather

than in Tallahassee , Florida, as originally plann ed , although

the August 29 , 2017, email did not expressly identify the new

location . Attorney Terrell also noted that the fir e inspection

w ould be completed by September 1 , 2017, and that the county

health inspection had been scheduled as well . That being the

case, Attorney Terrell asked that the due date for all omissions

responses be extended to September 1, 2017 , just two da ys hence .

Ms. Kalms responded via email on the same day that Ðall

omissions will be due Friday, September 1, 2017.Ñ

7 . On September 1, 2017, at 4:58 p.m., Attorney Terrell

sent an email to Ms. Kalms, attaching the omissions responses

( noting that th e proof of financial ability (ÐPFAÑ) documents,

which were large , would be sent in a separate email). Part of

the PFA material submitted by Angelcare was a copy of a

cashierÓs check in the amount of $14,000 made payable to Angel

Care With A Vision. The c opy of the check submitted by the

parties as Joint Exhibit 1 shows a date stamp from AHCA on

July 27, 2016. That check is dated July 21, 2016, i.e., prior

to the filing of the initial application for licensure which

is at issue in this proceeding . Distur bingly, in Angelcare

Exhibit 2, page 15, there is a copy of the same check , with the

same check number, in the same amount, and with the same

information, but with a date of September 21, 2016. The dates

on the check , written numerically, were Ð 07/21/16 Ñ and

Ð 09/21/1 6 , Ñ respectively. It appears the 9 in the second check

has been physically altered, i.e., the 7 is rounded to look like

a 9. That apparent alteration, coupled with the fact that one

of the identical (but for the date) check s was stamped in at

AHCA two months prior to the licensure application, is very

suspect. Although this check is of no consequence in this case

due to the findings set forth herein , it is troubling that a

seemingly altered check was submitted to AHCA (for whatever

reason).

8 . In his September 1, 2017, email, Attorney Terrell

intimated that a lease and receipts for certain expenditures

would also be sent separately. He noted that while there was no

specific requirement for zoning according to the county, a

letter to tha t effect could not be provided by the county until

September 5, 2017. Further, he said that Angelcare had

Ðencountered difficultiesÑ getting the fire inspection and

county health inspection reports. In lieu of the former, he

attached a letter from a comp any , Tyco Integrated Security,

stating that it would be able to get a fire alarm installed Ðin

three weeks or so.Ñ The installation of a fire alarm was

necessary before a fire inspection could be performed . As to

the county health inspection, Attorney Te rrell said he expected

an inspection to be done on Ð Thursday or Friday of next week.Ñ

(In fact, the inspection was done about three weeks later.)

Attorney Terrell then asked again that ACHA be as accommodating

as possible. Angelcare did not specifically request another

extension at this time, but merely stated (through its attorney)

that Ðwe hope that AHCA can continue to work with us on this

initial license.Ñ

9 . Rather than inferring tha t another extension of time

w a s being requested , AHCA deemed the application incomplete on

September 1, 2017, as Angelcare had not provided all of the

information required by the omissions letter of August 1, 2017 ,

and related extensions . As far as the Agency was concerned,

AngelcareÓs proffered reasons for request ing an extension did

not constitute Ðgood causeÑ for granting Angelcare more time. 2 /

Instead, the application was deemed withdrawn .

10 . AHCA issued its Notice of Intent to Deem Initial

Application Incomplete and Withdrawn (ÐNOIWÑ) on September 7,

20 17, six days after deeming the application withdrawn . The

basis for withdrawing the application from further consideration

was that the information requested in the omissions letter had

not been timely received by AHCA . There is no dispute as to

that fac t. The primary issue in this case then becomes whether

Angelcare provided Ðgood causeÑ for another extension of time

that would allow it to gather the required information .

11 . On the same day the NOIW was issued, Attorney Terrell

sent Ms. Kalm s a n email with Ðadditional documentation for

AngelcareÓs response to the omission letter.Ñ He noted that

Ðthere are some delays concerning the county health inspection

and fire inspection, no doubt due to the impending hurricane in

the Atlantic O cean.Ñ No other support was provided by Angelcare

for the extension request, nor was any competent , credible

evidence provided at final hearing that the hurricane caused

delays in gathering the required information. It may well have,

but there is no credible eviden ce to prove that fact. The

health inspection was ultimately completed on September 26,

2017. A fire inspection letter was issued by the local fire

department on September 29, 2017. A zoning letter was issued by

the Board of County Commissioners on April 5, 2018. All of

these documents were provided to AHCA well after the deadline of

September 1, 2017 , and only after AHCA had already withdrawn the

application from review . None of the letters or inspection

reports alluded to any problems or issues caused by Hurricane

Irma that delayed timely issuance of the letters.

1 2 . Again at final hearing Angelcare alluded to the

hurricane and its possible impact on gathering documentation.

The only evidentiary support provided with their comments

was Executiv e Order No. 17 - 235, issu ed by the Governor on

September 7, 2017. In that Executive Order , the Governor said

that state agencies may suspend regulatory statutes or they may

abrogate the time requirements for licensure applications.

Ms. Kalms , AHCAÓs repre sentative at final hearing, was not

familiar with the Executive Order , which was issued three days

after the omissions responses were due . No findings of fact can

be made as to whether the Executive Order had direct impact on

AHCAÓs handling of AngelcareÓ s application.

13 . T he Executive Order was issued prior to issuance of

the NOIW and also prior to AngelcareÓs submission of information

to AHCA on September 7, 2017. AngelcareÓs final omissions

respons es, under a cover letter dated November 30, 20 17, did

not address the Executive Order. That letter did say th at

ÐAngelcare had requested additional time due to the approaching

hurricane ,Ñ but did not provide an y proof of that statement.

The letter also said, ÐThe hurricane had a [sic] delayed the

sc heduling of the inspections and was an unavoidable event.Ñ

Again, though it would seem a simple matter to provide

substantiation of the claim from the entities providing the

inspection s , no independent proof of the statement was provided.

1 4 . Angel careÓs credibility (and thus the ability to

accept all of its statements as true) is somewhat demeaned by

the issue concerning the twice - dated bank check. Inasmuch as

the check issue raises eyebrows concerning AngelcareÓs

truthfulness, AngelcareÓs uncorro borated statements about the

effect of Hurricane Irma are also suspect. There may be a

plausible explanation for the seemingly altered chec k, but none

was provided at final hearing.

CONCLUSIONS OF LAW

15 . The Division of Administrative Hearings has

juri sdiction over the parties to and the subject matter of this

proceeding. §§ 120.569, 120.5 7 (1) , and 408. 806 , Fla. Stat.

Unless stated otherwise herein, all references to Florida

Statutes will be to the 2017 version.

16 . AHCA is the state agency with resp onsibility for

licensing and monitoring assisted living facilities. § 40 8 . 806 ,

Fla. Stat.

17 . An administrative heari ng involving disputed

issues of material fact is a de novo proceeding in which the

administrative law judge independently evaluates the e vidence

presented. Fla. DepÓt of Transp. v. J.W.C. Co., Inc. , 396 So.

2d 778, 787 (Fla. 1st DCA 1981); § 120.57(1), Fla. Stat.

1 8 . The general rule is that the party asserting the

affirmative of an issue has the burden of presenting evidence as

t o that issue. DepÓt of Banking & Fin., Div. of Sec. & Inv .

Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 (Fla. 1996) .

According to section 120.57(1)(k), ÐFindings of fact shall be

based upon a preponderance of the evidence . . . except as

otherwise p rovided by statute, and shall be based exclusively on

the evidence of record and on m atters officially recognized.Ñ

As the applicant seeking a determinat ion on the status of its

licensure application , Angelcare has the burden of proving, by a

preponderanc e of the evidence, t hat it had shown good cause for

further extensions of time to complete it application and thus

its application should not have been withdrawn .

1 9 . The evidence is clear that Angelcare did not submit

all of the responses mandated by the omissions letter timely.

Although Angelcare alluded to meteorological events that may

have made it difficult to respond timely, there is no competent

evidence to support that claim . Angelcare did not meet its

burden of proof. There is not a prepo nderance of credible

evidence that Hurricane Irma was the reason for Angelcare not

filing its omissions responses on or before the date they were

due. Angelcare did not establish that good cause existed

warranting another extension of time. See § 120.60( 1), Fla.

Stat.

20 . Thus, the AgencyÓs withdrawal of the Angelcare

application for licensure of an ALF was justified. Whether AHCA

could have granted further extensions is not at issue in this

proceeding.

2 1 . Th e recommendation herein does not, however, preclude

Angelcare from filing another application for licensure should

it wish to do so in the future .

RE COMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that :

The Notice of Intent to Deem Initi al Application Incomplete

and Withdrawn from Further Consideration, issued by Respondent,

Agency for Health Care Administration, is upheld. The

application filed by Petitioner, Angelcare with A Vision, is

withdrawn.

DONE AND ENTERED this 31st day of May , 2018 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of May, 2018 .

ENDNOTE S

1/ Tammy Ceasor testified that after the settlement agreement on

August 4, 2017, she had no further direct contact with Ms. Kalms

or anyone else at AHCA. All communications were done through

her attorney, Mr. Terrell.

2/ Section 120.60(1), Florida Statutes, says that, in an

application process, ÐFor good cause show n , the agency shall

grant an extension of ti me for submitting the additional

information.Ñ There is no definition of Ðgood causeÑ in that

statutory section.

COPIES FURNISHED:

D. Carlton Enfinger, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Flo rida 32308

(eServed)

John E. Terrel, Esquire

John E. Terrel, P.A.

Suite 11 - 116

1700 North Monroe Street

Tallahassee, Florida 32303

(eServed)

Kevin Michael Marker, Esquire

Agency for Health Care Administration

Mail Stop 7

2727 Mahan Drive

Tallahassee, F lorida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Justin Senior, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shena Grantham, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.