19-002265FL Agency For Persons With Disabilities vs. L And B Solution Care Group Home #3 Owned And Operated By L And B Solutions Care Group Homes, Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, September 30, 2019.

STATE OF FLORIDA

AGENCY FOR PERSONS WITH DISABILITIES

AGENCY FOR PERSONS

WITH DISABILITIES ,

Petitioner,

v. DOAH Case #: 1 9 - 2265FL

L&B SOLUTION CARE

GROUP HOME #3

OWNED AND OPERATED BY

L&B SOLUTIONS CARE

GROUP HOMES, INC . ,

Respondent.

_____________________________/

FINAL ORDER

This case is before the Agency for Persons with Disabilities (“Agency” or

“Petitioner” ) for entry of a Final Order concerning the Agency’s revocation of L&B

Solution Care Group Home #3’s (“Respondent”) license to operate as a group home

facility.

FACTUAL BACKGROUND

1. T he Agency issued an Administrative Complaint against Respondent on

March 1, 2019, seeking to revoke its license to operate a s a group home facility. The

Administrative Complaint is attached as Exhibit A. Respondent timely filed a

Petition for Formal Administrative Hearing and the case was referred to the Division

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of Administrative Hearing’s (“DOAH”) , where it was assigned to an Administrative

Law Judge (“ ALJ ”) .

2. As a result of Respondent’s failure to comply with Petitioner’s discovery

requests and the ALJ’s Order Granting Motion to Compel Discovery Responses , the

ALJ issued an Order Granting Petitioner’s Motion to Deem Matters Admitted

pursuant to Florida Rules of Civil Procedure Rule 1.370.

3. The ALJ issued an Order Closing File and Relinquishing Jurisdiction

(“Order”) on September 30, 2019 . This Order states, “ There is no sworn evidence in

the record to support the defenses raised by Respondent . Likewise, the material facts

supporting the Agency for Persons with Disabilities' Administrative Complaint and

Motion to Relinquish Jurisdiction have been admitted and conclusively established . .

. . [therefore] no genuine is sue as to any material fact(s) exists. ”

4 . The case was subsequently referred for an informal hearing pursuant to

sections 120.569 and 120 .57(2), Florida Statutes , and a hearing was held on

December 5, 2019 . The Agency’s Informal Hearing Officer issued a Recommended

Order on March 2, 2020, recommending revocation of Respondent’s license. The

Recommended Order is attached as Exhibit B .

5. Neither party filed exceptions to the Recommended Order.

6 . Based on the Order Granting Petitioner’s Motion to Deem Matters Admitted ,

the Order Closing File and Relinquishing Jurisdiction , and the Recommended Order,

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it has been established that the Agency for Health Care Administration (“AHCA”)

issued Administrative Complaints against Leonie Nelson (“Ms. Nelson”) ,

Respondent’s President, Secretary, and Treasurer , on January 25, 2012 ; January 27,

2012 ; and August 23, 2016 . Final Orders were entered regarding each of these

Administrative Complaints, each of which imposed an administrative fine against

Ms. Nelson .

7. On the Agency facility license application form, Question 1 reads as follows:

“ Have you or a controlling entity affiliated with this application ever had a license

denied, revoked, or suspended in any county in Fl orida, or any other state or

jurisdiction OR been the subject of disciplinary action, or the party responsible for a

licensed facility receiving an administrative fine? ”

8. On the initial license application form submitted to the Agency, notarized on

April 12, 2017, and on the renewal license application form submitted to the Agency,

notarized on August 15, 2018, Ms. Nelson falsely answered "no" to Q uestion 1 in

the Affidavit portion of the application.

9. AHCA issued an Amended Notice of Intent to Deny for Renewal of an

assisted living facility license to L&B Solution Care, Inc. on January 3, 2018 . On

July 6, 2018, AHCA issued a Final Order to L&B Solution Care, Inc., upholding the

Amended Notice of Intent to Deny for Renewal and denying the licensure renewal

application for an assisted living facility.

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10. On the Agency facility license application form, Question 4 reads as follows:

“Have you ever held a license to operate a residential facility that was revoked or

denied by the Agency for Pe rsons with Disabilities, the Department of Children and

Family Services, or the Agency for Health Care Administration?”

11. On the renewal license application form submitted to the Agency, notarized

on August 15, 2018, Ms. Nelson falsely answered "no" to Q uestion 4 in the Affidavit

portion of the application.

12. On December 30, 2010, the Department of Children and Families (“DCF”)

commenced an investigation into an allegation of neglect of a vulnerable adult

resident of L&B Solution Care Inc. Assisted Liv ing Facility, owned and operated by

the L&B Solution Care, Inc. Ms. Nelson is listed as the President and Treasurer of

L&B Solution Care Inc., a Florida Profit Corporation.

1 3. In the month of December 2010, L.R., a non - ambulatory vulnerable adult

resident of L&B Solution Care Inc. Assisted Living Facility, developed multiple

bedsores .

1 4. On February 24, 2011, DCF closed the investigation with verified findings of

medical neglect against Ms. Nelson, owner and operator of L&B Solution Care Inc.

Ass isted Living Facility.

1 5. On the Agency facility license application form, Question 2 reads as follows:

“ Have you or ownership controlling entity affiliated with this application ever been

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identified as responsible for the abuse, neglect, or abandonment of a child or the

abuse, neglect, or exploitation of a vulnerable adult? ”

1 6. On the initial license application form submitted to the Agency, notarized on

April 12, 2017, and on the renewal license application form submitted to the Agency,

no tarized on August 15, 2018, Ms. Nelson falsely answered "no" to Q uestion 2 in

the Affidavit portion of the application.

CONCLUSIONS OF LAW

17. The Agency has jurisdiction pursuant to sections 120.569 and 120.57(2),

Florida Statutes . As explained in the DOAH Order Closing File and Relinquishing

Jurisdiction, “. . . no genuine issue as to any material fact(s) exists.”

18. Section 393.0673 , Fl orida Stat utes , provides as follows:

(1) The agency may revoke or suspend a license or impose an

administrative fine, not to exceed $1,000 per violation per day, if:

(a) The licensee has:

1. Falsely represented or omitted a material fact in its license

application submitted under s. 393.067;

2. Had prior action taken against it under the Medicaid or Medicare

program; or

3. Failed to comply with the applicable requirements of this chapter

or rules applicable to the licensee; or

(b) The Department of Children and Families has verified that the

lic ensee is responsible for the abuse, neglect, or abandonment of a child

or the abuse, neglect, or exploitation of a vulnerable adult.

19. In addition, Rule 65G - 2.0041, Florida Administrative Code , provides as

follows with respect to disciplinary actions ag ainst licensees:

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(2) Factors considered when determining sanctions to be imposed for a

violation. The Agency shall consider the following factors when

determining the sanctions for a violation:

(a) The gravity of the violation, including whether the incide nt involved

the abuse, neglect, exploitation, abandonment, death, or serious

physical or mental injury of a resident, whether death or serious

physical or mental injury could have resulted from the violation, and

whether the violation has resulted in perma nent or irrevocable injuries,

damage to property, or loss of property or client funds;

(b) The actions already taken or being taken by the licensee to correct

the violations, or the lack of remedial action;

(c) The types, dates, and frequency of previous violations and whether

the violation is a repeat violation;

(d) The number of residents served by the facility and the number of

residents affected or put at risk by the violation;

(e) Whether the licensee wi llfully committed the violation, was aware

of the violation, was willfully ignorant of the violation, or attempted to

conceal the violation;

(f) The licensee’s cooperation with investigating authorities, including

the Agency, the Department of Children and Families, or law

enforcement;

(g) The length of time the violation has existed within the home without

being addressed; and,

(h) The extent to which the licensee was aware of the violation.

. . .

(4) Sanctions. Fines shall be imposed, pursuant to a final order of the

Agency, according to the following three - tiered classification system

for the violation of facility standards as provided by law or

administrative rule. Each day a violation occurs or continues to occur

constitutes a separate violation a nd is subject to a separate and

additional sanction. Violations shall be classified according to the

following criteria:

(a) Class I statutory or rule violations are violations that cause or pose

an immediate threat of death or serious harm to the health, safety or

welfare of a resident and which require immediate correction.

1. Class I violations include all instances where the Department of

Children and Families has verified that the licensee is responsible for

abuse, neglect, or abandonment of a child or abuse, neglect or

exploitation of a vulnerable adult. For purposes of this subparagraph, a

licensee is responsible for the action or inaction of a covered person

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resulting in abuse, neglect, exploitation or abandonment when the facts

and circumstances sho w that the covered person’s action, or failure to

act, was at the direction of the licensee, or with the knowledge of the

licensee, or under circumstances where a reasonable person in the

licensees’ position should have known that the covered person’s acti on,

or failure to act, would result in abuse, neglect, abandonment or

exploitation of a resident.

2. Class I violations may be penalized by a moratorium on admissions,

by the suspension, denial or revocation of the license, by the

nonrenewal of licensure, or by a fine of up to $1,000 dollars per day per

violation. Administrative sanctions may be levied notwithstanding

remedial actions taken by the licensee after a Class I violation has

occurred.

3. All Class I violations must be abated or corrected immediat ely after

any covered person acting on behalf of the licensee becomes aware of

the violation other than the covered person who caused or committed

the violation.

(b) Class II violations are violations that do not pose an immediate

threat to the health, saf ety or welfare of a resident, but could reasonably

be expected to cause harm if not corrected. Class II violations include

statutory or rule violations related to the operation and maintenance of

a facility or to the personal care of residents which the Ag ency

determines directly threaten the physical or emotional health, safety, or

security of facility residents, other than Class I violations.

1. Class II violations may be penalized by a fine of up to $500 dollars

per day per violation.

If four or more Cla ss II violations occur within a one year time period,

the Agency may seek the suspension or revocation of the facility’s

license, nonrenewal of licensure, or a moratorium on admissions to the

facility.

2. A fine may be levied notwithstanding the correction of the violation

during the survey if the violation is a repeat Class II violation.

20. As discussed supra paragraph 6 , Respondent had prior action taken against it

under the Medicaid program. AHCA imposed administrative fines against Ms.

Nelson’s assist ed living facility on three occasions between January 25, 2012 and

June 7, 2017 . As discussed supra paragraph 9, AHCA also denied the facility’s

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licensure renewal application on July 6, 2018. Respondent is owned and operated by

the same licensee, Ms. Nelso n. Both the administrative fines and denial of licensure

renewal constitute prior action taken against Respondent under the Medicaid

program .

2 1 . In addition to AHCA’s administrative actions, Respondent also f alsely

represented or omitted material fact s in its initial license application in 2017 and

renewal application in 2018 . As discussed supra paragraph s 7 through 8, Ms. Nelson

represented that she had not been the subject of disciplinary action or the party

responsible for a licensed facility receivi ng an administrative fine . Ms. Nelson also

represented that she had not ever held a license to operate a residential facility that

was revoked or denied by the Agency for Persons with Disabilities, DCF, or AHCA .

See supra paragraphs 10 - 11.

2 2 . DCF also verified that Respondent’s licensee, Ms. Nelson, was responsible

for the medical neglect of a vulnerable adult resident of L&B Solution Care Inc.

Assisted Living Facility. See supra paragraphs 1 2 - 14. Ms. Nelson also falsely

represented on the init ial license application , which was notarized on April 12, 2017 ,

that she had not been identified as responsible for the abuse, neglect, or exploitation

of a vulnerable adult . See supra paragraphs 15 - 16.

2 3 . The Agency may revoke a license or impose an administrative fine up to

$1,000 per violation per day for a violation of s ection 39 3.0673. Respondent has

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been the party responsible for a licensed facility receiving administrative fines, has

held a license to operate a residential facility that was deni ed renewal by AHCA, and

has been identified by DCF as responsible for the abuse, neglect, or exploitation of

a vulnerable adult. In addition, Respondent falsely represented or omitted those

material facts in its license application submitted under s ection 393.067 .

24. As Rule 65G - 2.0041 (4) , Florida Administrative Code , explains, a DCF

verified finding of neglect of a vulnerable adult constitutes a Class I violation. The

other violations constitute Class II violations, which include statutory or rule

violations related to the operation and maintenance of a facility or to the personal

care of residents which the Agency determines directly threaten the physical or

emotional health, safety, or security of facility residents ( oth er than Class I

violations ) .

25. Collectively, Respondent is responsible for violations of sections

393.0673(1)(a)1. and 2. , as well as 393.0673(1)(b) , which means Respondent is

responsible for a Class I violation and nine Class II violations without consideration

of the length of time the violation s existed. See Fla. Admin. Code R. 65G - 2.0041(4)

(stating, “Each day a violation occurs or continues to occur constitute s a separate

violation and is subject to a separate and additional sanction.”).

2 6 . Rule 65G - 2.0041(2), Florida Administrative Code , requires the Agency to

consider several factors when determining sanctions for violations. T he gravity of

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the violations is severe. Respondent had a verified finding of neglect of a vulnerable

adult where serious physical injury resulted (it is unknown if permanent injuries

resulted) , t here were three separate instances where Respondent had prior action

taken under the Medicaid program in the form of administrative fines , an additional

instance of action taken under the Medicaid program in that AHCA denied the

license renewal of an assisted living facility owned and operated by the same

licensee , and five instances ( two in 2017 and three in 2018) where Respondent

falsely represented those material facts in its license application submitted under

section 393.067.

27. It us unknown ba sed on the record how many residents were served by the

facility, but the violations put all the residents at risk where Respondent

misrepresents material facts to the A gency.

2 8 . N o evidence was presented to address Respondent’s cooperation with the

investigating authorities.

29. While only one of the violations resulted in a serious physical injury of a

resident, the other violations represent a threat to the health, safety , and welfare of

the residents in Respondent’s facility. Respondent’s misrepr esentation of material

facts on the 2017 application and 2018 renewal application also raises concerns

about its compliance with Agency rules and regulations.

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30 . Respondent failed to present any evidence that the licensee is taking or has

taken action to correct the violations.

31 . Respondent is responsible for repeat violations of section 393.0673(1)(a)1.

The licensee mispresented information in not only the 2017 license application but

also the 2018 renewal application. Respondent’s other violations were not repeat

violations. As discussed supra paragraph s 20 through 22 and 25, Respondent is

responsible for several violations, several of whic h are grounds to revoke a license

or invoke an administrative in up to $1,000 per day under section 393.0673 .

3 2 . With respect to whether the licensee willfully committed the violation, was

aware of the violation, was willfully ignorant of the violation, or attempted to

conceal the violation , it is possible that the licensee, Ms. Nelson, was only aware of

some of the violations. For example, she must have been aware that her license

renewal was denied because it would force her to discontinue op erations as an

assisted living facility. As the licensee, it was her duty to answer the questions on

the license application and renewal applications honestly, so to the extent that she

answered “No” to Question 4, this must have been done willfully. See s upra

paragraphs 9 - 11. However, it is possible that she was not aware of the verified

finding of neglect if it never resulted in any agency action. Overall, though, it appears

that Respondent was aware of most, if not all the violations by virtue of their

o utcome, such as being required to pay an administrative fine or cease operations.

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3 3 . Rule 65G - 2.0041(4)(b)1., Florida Administrative Code , provides, “If four or

more Class II violations occur within a one year time period, the Agency may seek

the suspension or revocation of the facility’s license, nonrenewal of licensure, or a

moratorium on admissions to the facility.” There were more four or more Clas s II

violations within a one - year time period at Respondent’s facility. Respondent was

responsible for four Class II violations in 2018, namely, AHCA denied the license

renewal and the licensee falsely represented that she had not received administrative

f ines, had a license denied or revoked, and had not been identified as responsible for

the abuse, neglect, or exploitation of a vulnerable adult. Taking all the violations

together along with all the facts and factors in Rule 65G - 2.0041(2) of the Code , the

Respondent’s violations amount to a fundamental failure to comply with applicable

requirements of chapter 393 and rules applicable to the licensee.

3 4 . These facts were deemed admitted by the DOAH ALJ and, after an informal

hearing, the Informal Hearing Of ficer concluded that revocation of Respondent’s

license to operate as a group home facility is appropriate. Given the facts and reasons

discussed above , the undersigned agrees.

CONCLUSION

Based on the foregoing, it is hereby ORDERED AND ADJUDGED that

Respondent’s license to operate as a group home facility ( 11 - 1252 - GH ) is hereby

REVOKED .

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I HE REBY CERTIFY that a c opy of this Fina w Order l a s provid e d b y

regular US or e lectro nic mail to the a bove in dividuals at the a ddresse s liste d

o n May 29 2020.

_ le Thomps _ _____

Danielle T hompso n , Esq.

Agency Clerk

Agency for P erson s with Disabilities

4030 Esplanade W ay, S uite 3 35 Tallahassee, F L 32399 -0 950

[e-mail]

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