19-006305 Tyval Assisted Living Facility, Llc vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, April 30, 2020.

Summary: Unlawful physical restraints and lack of supervision and training justified revocation and maximum fines for two Class II violations. Fines for uncorrected Class III violations and nonrenewal of license for omissions in renewal application also warranted.

Mary J. Howard, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive North , Suite 330A

St. Petersburg, Florida 33701

For Tyval Assisted Living Facility, LLC (“Tyval”) :

Shaddrick A. Hasto n, Esquire

Ullman Bursa Law

3812 Coconut Palm Drive , Suite 200

Tampa, Florida 33619

S TATEMENT O F T HE I SSUE S

As to Ca se No. 19 - 5096, whether Tyval committed the deficiencies alleged

in the Administrative Complain t ; and, if so, whether Tyval’s license to

operate an assisted living facility (“ALF”) should be revoked, and/or whether

Tyval is subject to administrative fines and survey fees ; and, if so, the

amount of the administrative fines and survey fees to be imposed. As to

Cas e No. 20 - 0014, whether Tyval committed the deficiencies alleged in the

Administrative Complain t ; and, if so, whether Tyval is subject to

administrat ive fine s ; and, if so, the amount of the administrative fines to be

imposed. As to Case No. 19 - 6305, whether Tyval’s application for renewal of

its ALF license should be denied .

P RELIMINARY S TATEMENT

On August 13, 2019, AHCA issued an Administrative Com plaint against

Tyval, notifying it of AHCA’s intent to revoke Tyval’s ALF license and to impose administrative fines in the sum of $10,000.00 and survey fees in the

amount of $500.00 , based upon two Class II deficient practices identified by

AHCA during it s survey conducted at Tyval from January 15 through 18 ,

2019.

1 On September 3, 2019, Tyval timely filed a Petition for Formal

1 In the Joint Pre - Hearing Statement, the parties stipulated that the August 2019

Administrative Complaint wa s deemed to be amended to include a claim by AHCA for survey

fees in the amount of $500.00 .

Hearing. Subsequently, AHCA forward the matter to DOAH to assign an

administrative law judge to conduct the final hearing. The mat ter was

assigned to the undersigned under Case No. 19 - 5096. On September 26, 2019,

the undersigned set the final hearing for November 25 and 26, 2019. On

November 7, 2019, AHCA filed an unopposed motion to continue the final

hearing. On November 15, 2019, the undersigned entered an Order granting

the motion and reset the final hearing for January 30 and 31, 2020.

On October 10, 2019, AHCA issued a second Administrative Complaint

against Tyval, notifying it of AHCA’s intent to impose administrative fines i n

the sum of $1,500.00, based upon three uncorrected Class III deficient

practices identified by AHCA during its surveys conducted at T yval on

January 15 through 18, 2019, March 2, 2019, and May 21, 2019. On

November 1, 2019, Tyval timely filed a Petition for Formal Hearing. Subsequently, AHCA forward ed the matter to DOAH to assign an

administrative law judge to conduct the final hearing. The matter was

initially assigned to Administrative Law Judge June C. McKinney u nder

Case No. 20 - 0014.

On October 1, 2 019, AHCA issued a Notice of Intent to Deem Renewal

Application Incomplete and Withdrawn f rom Further Consideration to Tyval.

On October 22, 2019, Tyval timely filed a Petition for Formal Hearing. Subsequently, AHCA forwarded the matter to DOAH to assign a n

administrative law judge to conduct the final hearing. The matter was

initially assigned to Administrative Law Judge June C. McKinney under

Case No. 19 - 6305.

On December 3, 2019, the parties filed a joint motion to consolidate

Case Nos. 19 - 5096 and 19 - 6305. On December 4, 2019, Case No. 19 - 6305 was

transferred to the undersigned for all further proceedings. On December 9,

2019, the undersigned entered an Order consolidating Case Nos. 19 - 5096 and

19 - 6305 and rescheduling the final hearing for February 19 through 21, 2020 .

On January 13, 2020, the parties filed their J oint R esponse to I nitial

Or der in Case No. 20 - 0014. On January 21, 2020, Case No. 20 - 0014 was

transferred to the undersigned for all further proceedings. On January 27, 2020, the undersigne d entered an Order consolidating Case Nos. 19 - 5096,

19 - 6305, and 20 - 0014, and an amended notice of hearing to reflect the issues

for the final hearing in all three cases.

The final hearing was held on February 19 and 20, 2020, with both parties

present . At the hearing, AHCA presented the testimony of Tikel Wedges -

Phoenix, Paul Valerio, Nicolas Frias, Dr. Arthur Bautista, Keisha Woods, and

Erika Potter - Morgan. AHCA’s Exhibits 1 through 29, 31 through 40, and 42

were received into evidence. Tyval presente d the testimony of Val rie Powell.

Tyval’s Exhibits 1 and 2 were received into evidence.

The three - volume final hearing Transcript was filed at DOAH on March 6,

2020. On March 12, 2020, AHCA filed an unopposed motion to extend the

deadline until March 27, 2020, for the parties to file proposed recommended

orders. On March 13, 2020, the undersigned entered an Order granting the

motion. The parties timely filed their proposed recommended orders, which

were given consideration in the preparation of this Recom mended Order.

On February 10, 2020, the parties filed their Joint Pre - Hearing

Stipulation, in which they stipulated to certain facts. These facts have been

incorporated into this Recommended Order as indicated below.

Unless otherwise stated, as to Case Nos. 19 - 5096 and 20 - 0014, all

statutory and rule references are to the statutes and rules in effect at the

time of the alleged violations. As to Case No. 19 - 6305 , all statutory and rule

refe rences are to the 2019 versions. 2

F INDINGS O F F ACT

1. AHCA is t he state agency responsible for licensing ALFs in Florida and

enforcement of applicable state statutes and administrative rules pursuant to

chapters 408, part II, and 429, part I , Florida Statutes, and Florida

Administrative Code C hapters 58A - 5 and 59A - 36.

2. At all times material hereto, Tyval has been licensed by AHCA to

operate a six - bed ALF located at 3526 Genevra Avenue, Boynton Beach,

Florida 33436. Tyval’s facility is located within a single family three - bedroom

home. As a licensed ALF , Tyval is req uired to comply with all applicable state

statutes and administrative rules.

3. AHCA conducts inspections, commonly called surveys, of licensed

providers and applicants for licensure to determine compliance with the

regulatory scheme governing such facil ities. AHCA personnel typically

conduct the surveys, which may involve an on - site tour of the facility,

observing residents, reviewing resident records, reviewing staff files,

conducting interviews, and documenting the survey findings. There are

different types of surveys, including complaint surveys, monitoring surveys,

and revisit surveys.

4 . A deficiency or deficient practice is a violation of an applicable statute

or rule resulting from a survey. AHCA must classify deficiencies according to

the nature and severity of the violation.

5. Pursuant to section 408.813(2), deficiencies are classified as Class I, II,

III, and IV. A Class I violation poses an imminent danger to the resident or a

2 See Lavernia v. Dep’t of Prof ’l Reg . , Bd. of Med. , 616 So. 2d 53, 54 (Fla. 1st DCA 1993).

substantial probability of death or serious physica l or emotional harm to the

resident. A Class II violation directly threat ens the physical or emotional

health, safety, or security of the resident . A Class III violation indirect ly or

potential ly threat ens the physical or emotional health, safety, or security of

the res ident.

The January 15 through 18, 2019, Survey

6 . On January 15 through 18, 2019, AHCA conducted a n unannounced

complaint survey at Tyval ’s facility . The complaint was made to AHCA by

Paul Valerio, an investigator with the Florida Attorney General’s off ice, who

went to the facility on January 14, 2019, to investigate an unrelated

complaint .

7 . Upon his arrival at the facility on the morning of January 14, 2019,

Mr. Valerio spoke with Stacy Smith , who was the only Tyval staff member

present at the facili ty.

8 . Mr. Valerio then walked around the inside of the facility , at which time

he observed two residents (Resident No s . 1 and 2) in the living room area

sitting in separate recliner chairs with bedsheets tied around their waists .

The bedsheets were secur ed by knots tied to t he back of the recliners.

Mr . Va l erio observed that t he two residents were unable to exit the chairs on

their own.

9 . Mr. Valerio was concerned when he saw the two residents tied to their

chairs, so he took pictures of them (AHCA’s Ex hibit Nos. 14 and 15) and

subsequently reported his concerns to AHCA .

10 . While Mr. Valerio was still at the facility on January 14, 2019,

Valrie Powell, the administrator of Tyval , arrived at the facility. Mr. Valerio

introduced himself to Ms. Powell and explained the purpose of his visit.

During the visit, Mr. Valerio requested financial documents from Ms. Powell.

Ms. Powell then walked through the living room area to a back room and, in

doing so, walked past the two restrained residents. Ms. Powell was s till at the

facility when Mr. Valerio left. When Mr. Valerio left the facility, he observed

the two residents still tied to their chairs. At no point during Mr. Valerio’s

visit did Ms. Powell remove the restraints or instruct Ms. Smith to remove

the restra ints.

1 1 . The next morning, January 15, 2019, Nicolas Frias, an AHCA medical

and health care analyst, arrived at Tyval to conduct the survey in response to

Mr. Valerio ’ s complaint. Upon his arrival , Mr. Frias explained the purpose of

the visit and request ed records. Mr. Frias conducted his physical survey at

the facility on January 15 and 16, 2019.

1 2 . Mr. Frias could not interview Resident Nos. 1 and 2 because they were

mentally incapable of being interviewed. Mr. Frias interviewed Resident

No. 3, who rec alled seeing Resident No. 1 previously being tied with a

bedsheet to a chair. On January 16, 2019, Ms. Powell informed Mr. Frias that

she was not aware of any residents being restrained and that Ms. Smith had

not reported any incidents on January 14, 2019. However, Ms. Powell

acknowledged that residents are susceptible to harm if they are restrained.

1 3 . During his survey, Mr. Frias observed a half - bed rail attached to

Resident No. 2’s bed. Mr. Frias took a photograph of Resident No. 2’s bed and the half - bed rail attached to the bed . AHCA’s Ex . 17.

14. Resident No. 2 was incapable of p roperly utilizing or avoiding the half -

bed rail without assistance , and there was no physician’s order or consent

from the resident or resident’s representative to allow for the use of the half -

bed rail.

15. During his survey , Mr. Frias also observed that Tyval s taff members

had not been adequately trained to recognize and report abuse and neglect of

residents, and they were not familiar with the State of Florida’s abuse pre vention hotline. In addition, staff member files lacked adequate

documentation of training regarding assisting resident s with self -

administration of medications and staff member files were unavailable for

review .

16. During his survey , Mr. Frias also obs erved that resident medications

were stored on the top of the medication cart located in the dining room of the

facility, and therefore, the medications were accessible by any person who

was inside the dining room facility. Staff members also had not recei ve d

adequate training regarding assisting residents with self - administration of

medication s .

17. During his survey , Mr. Frias also observed that Tyval’s comprehensive

emergency management plan (“CEMP”) dated October 29, 2018, indicated

that the facility ne eded to have 32 gallons of fuel immediately available to

operate its power generator for 96 hours in the event of an emergency. However, Mr. Frias observed a power generator inside a shed located on the

south side of the property with only 25 gallons of fu el stored inside the shed.

Mr. Frias also observed that Tyval did not have a portable generator on the

property, and that Tyval failed to prepare a detailed emergency

environmental control plan (“EECP”) to address the event of loss of primary

power in the facility during an emergency.

1 8 . AHCA cited Tyval with two Class II deficiencies resulting from the

January 15 through 18, 2019, survey.

1 9 . Tyval was cited for a Class II deficient practice (Tag 0030) for failing

to honor resident rights and provide a safe and decent living environment free from abuse and neglect, including the use of physical restraints, in

violation of section 429.28 and rule 58A - 5.0182(6).

3

20 . Tyval was also cited for a Class II deficient practice (Tag 0077) for

Ms. Powell’s fai lure to provide adequate management of staff by not ensuring

staff members were adequately trained to recognize and report incidents of

abuse and neglect, and for Ms. Powell’s failure to implement actions to

3 On July 1, 2019, rule 58A - 5.0182(6) was transferred to rule 59A - 36.00 7(6).

continually honor resident rights to prevent haz ardous situations, in

violation of section 429.52 and rule 58A - 5.019(1). 4

21 . AHCA also cited Tyval with a Class II I deficiency (Tag 0055) for

failing to adequately store resident medications , by not keeping the

medications locked in the medication cart a t all times, in violation of

rule 58A - 5.0185(6). 5

2 2 . AHCA also cited Tyval with a Class III deficiency (Tag 0161) for

failing to maintain a staff member’s personnel record, in violation of

section 429.275(2) and rule 58A - 5.024(2). 6

2 3 . AHCA also cited Tyval with a Class III deficiency (Tag 0200) for

failing to prepare a detailed EECP to address the event of loss of primary

electrical power in the facility because of an emergency, in violation of

rule 58A - 5.036 . 7

March 2 and May 21 , 2019 , Revisit Survey s

24. On March 2, 2019, Mr. Frias conducted a revisit survey at Tyval.

During the March 2019 revisit survey, Ms. Powell informed Mr. Frias that she terminated Ms. Smith, a staff member who had restrained residents.

25. During th e March 2, 2019, revisit su rvey, Mr. Frias observed that a

staff member’s personnel record failed to indicate she held a current and valid cardio pulmonary resuscitation (“ CPR ”) certification. This employee

worked alone in the facility each week from Friday to Monday. Rule 58A -

5.0191 (5) requires that a staff member who holds a valid card documenting CPR certification be in the facility at all times.

8

4 On July 1, 2019, rule 58A - 5.019(1) was transferred to rule 59A - 36.010(1).

5 On July 1, 2019, rule 58A - 5.0185(6) was transferred to rule 59A - 36.008(6).

6 On July 1, 2019, rule 58A - 5.024(2) was transferred to rule 59A - 36.015(2).

7 On July 1, 2019 , rule 58A - 5.036 was transferred to rule 59A - 36.025.

8 On July 1, 2019, rule 58A - 5.0191(5) was transferred to rule 59A - 36.011(5).

26. During th e March 2, 2019, revisit survey, Mr. Frias observed that

Tyval had still not prepared a detailed EECP to address the eve nt of loss of

primary electrical power in the facility because of an emergency, in violation

of rule 58A - 5.036 .

27. AHCA cited Tyval with an uncorrected Class III deficient practice

(Tag 0161) for failing to maintain a personnel record for a staff membe r ,

which contained the staff member’s valid CPR certification in violation of

section 429.275(2) and rule 58A - 5.024(2).

28. AHCA also cited Tyval with an uncorrected Class III deficient practice

(Tag 0200) for failing to prepare a detailed EECP to address the event

involving the loss of primary electrical power in the facility during an

emergency in violation of rule 58A - 5.036.

29 . During the May 21, 2019, revisit survey, Tyval provided a detailed

EECP , dated March 21, 2019, and a letter from the local eme rgency

management agency , dated April 17, 2019, approving this EECP. At the

May 21, 2019, revisit survey, Mr. Frias observed a propane tank and a

portable power generato r , which was connected to the propane tank.

Mr. Frias also observed an electrical switc h attached to the exterior wall of

the facility’s building. Nevertheless, AHCA cited Tyval with an uncorrected

Class III deficient practice (Tag 0200) following the May 21, 2019, revisit survey for Tyval’s purported failure to acquire an alternate power so urce and

fuel supply that was in accordance with the Florida Building Code, in violation of rule 58A - 5.036.

30. The persuasive evidence adduced at hearing clearly and convincingly

demonstrates that Tyval committed the two Class II violations alleged in th e

Administrative Complaint in Case No. 19 - 5096 . A Tyval staff member’s t ying

of Resident Nos. 1 and 2 to recliner chairs with bed sheets , so they cannot

exit the chairs on their own , and imposing a half - bed rail on Resident No. 2’s

bed without proper conse nt or a physician’s order were improper physical

restraint s , which directly threatened Resident No s . 1 and 2’s physical or

emotion al health, safety, or security . As such, Tyval failed to provide

Resident Nos. 1 and 2 with a safe and decent living environme nt free from

abuse or neglect in violation of section 429.28 and rule 58A - 5.0182(6). These

actions were intentional or negligent acts by Tyval or its staff members ,

which seriously affected the health, safety, or welfare of Resident Nos. 1

and 2. Moreover, as the administrator of Tyval , Ms. Powell failed to provide

adequate management of staff by not ensuring staff members were

adequately trained to recognize and report incidents of abuse and neglect,

and Ms. Powell failed to implement actions to continuall y honor resident

rights to prevent hazardous situations, in violation of section 429.52 and

rule 58A - 5.019(1). Ms. Powell’s actions were intentional or negligent and

seriously affected the health, safety, or welfare of Resident Nos. 1 and 2.

31. The persu asive evidence adduced at hearing clearly and convincingly

de monstrates that Tyval committed an uncorrected Class III deficient

practice by failing to maintain a personnel record for a staff membe r, which

contained the staff member’s valid CPR certificatio n in violation of

section 429.275(2) and rule 58A - 5.024(2). This practice indirectly or

potentially threatened the physical or emotional health, safety, or security of

Tyval residents.

32. The persuasive evidence adduced at hearing clearly and convincingly

demonstrates that Tyval committed an uncorrected Class III deficient

practice by failing to prepare, as of the March 2, 2019, revisit survey, a

detailed EECP to address the event involving the loss of primary electrical power in the facility during an eme rgency in violation of rule 58A - 5.036. This

practice indirectly or potentially threatened the physical or emotional health, safety, or security of Tyval residents.

3 3 . The persuasive evidence adduced at hearing does not clearly and

convincingly demonstra te that Tyval committed an uncorrected Class III

deficient practice by failing to acquire an alternate power source and fuel

supply that was in accordance with Florida’s Building Code , in violation of

rule 58A - 5.036. As detailed above, during the May 21, 2 019, revisit survey,

Tyval provided a detailed EECP , dated March 21, 2019, and a letter from the

local emergency management agenc y, dated April 17, 2019, approving this

EECP. At the May 21, 2019, revisit survey, Mr. Frias observed a portable

power generato r , which was connected to a propane tank . Mr. Frias also

observed an electrical switch attached to the exterior wall of the facility’s

building.

Tyval’s Incomplete Renewal Application

3 4 . On July 16, 2019, Tyval applied to renew its ALF license .

Accompan ying the application was a check written by T yval made payable to

AHCA to purportedly cover the required filing fee for renewal .

3 5 . AHCA did not accept Tyval’s renewal application because the amount

hand written on the legal line of the check (“Seven Hund red and Forty nine ” )

was inconsistent with the amount handwritten in the numerical box o n the

check (“777.49/100”). Based on this inconsistency, AHCA could not deposit

the check, the filing fee payment was not received by AHCA, and AHCA did

not deem the ap plication received.

3 6 . The application specifically advised Tyval that: “ Applications will

not be considered for review until payment has been received. ”

(emphasis in original).

3 7 . The application further advised Tyval that: “ The application will be

withdrawn from review if all the required documents and fees are not

included with your application or received within 21 days of an omission

notice. ” (emphasis in original).

3 8 . On July 22, 2019, AHCA returned the application and check to Tyval

with a cover letter stating the following reason for the return: “LEGAL LINE

DOES NOT MATCH NUMERIC BOX.”

3 9 . On August 1, 2019, AHCA received the same renewal application from

Tyval along with another check made payable to AHCA in the amount of

$ 77 7.49 . AHCA deposited the check and was therefore officially in receipt of

the renewal application on August 1, 2019.

40 . Subsequently, Erika Potter - Morgan, a health services and facilities

consultant for AHCA, processed and reviewed the renewal applic ation and

identified the following errors or omissions: (1) s ection 1. B . of the application

did not list Tyval Assisted Living Facility , LLC , as the licensee name;

(2) s ection 2.C. did not list the total number of beds; ( 3 ) the total license fee

was $789.4 9 , so the check received by AHCA on August 1, 2019, was $12.00

short; ( 4 ) failing to submit documented proof of business liability insurance;

( 5 ) failing to submit documentation that Tyval has received a satisfactory

sanitation inspection within the previo us 365 days conducted by the county

health department; and (6) failing to provide the name of a safety liason

contact person regarding Tyval’s EECP.

4 1 . On August 16, 2019, Ms. Potter - Morgan emailed a letter to Ms. Powell

at the email addressed identi fied by Ms. Powell in the renewal application .

The letter outlined the errors and omissions and indicated the application

was incomplete. The letter informed Ms. Powell that if the errors and

omissions were not corrected within 21 calendar days, then the r enewal

application would be withdrawn from consideration. 9

4 2 . The requested documentation was due to AHCA no later than

September 6, 2019. No response to the August 16, 2019, letter was received

by AHCA.

4 3 . On October 1, 2019, AHCA issued the Notice of Intent to Deem

Application Incomplete and Withdrawn based on Tyval’s failure to provide

the documentation and information required by the August 16, 2019, letter.

4 4 . On October 31, 2019, AHCA received additional documentation from

Tyval. H owever, the error in section “B” of the application had not been

corrected and the liability insurance and safety liaison information was not

9 The renewal application specifically provided: “By providing your e - mail address, you agree

to accep t e - mail correspondence from the Agency.”

provided. As of the date of the final hearing, AHCA still had not received a

correction to section “B” of the appl ication, the documentation regarding

liability insurance, or the safety liaison information.

4 5 . In its p roposed r ecommended o rder, Tyval contends that AHCA is

precluded by section 120.60 , Florida Statutes, from denying the renewal

application because it failed to process the app lication within 30 days of

July 16, 2019, and the letter requesting omitted items was not sent to Tyval

until August 16, 2019, more than 30 days after July 16, 2019. However, as

detailed above, Tyval’s application was not deemed received by AHCA on

July 16, 2019, because the check received by AHCA on July 16, 2019, had

inconsistent amounts written on it , so the check could not be deposited by

AHCA and it was instead returned to Tyval. AHCA did not deem Tyval’s

application receive d until August 1, 2019, when Tyval resent its original

renewal application along with a check that AHCA could deposit. The

omissions letter was sent within 30 days of August 1, 2019.

4 6 . In sum, Tyval’s renewal application was incomplete an d, therefore ,

pr operly deemed withdrawn and denied by AHCA .

C ONCLUSIONS O F L AW

4 7 . DOAH has jurisdiction over the subject matter and parties pursuant

to sections 120.569 and 120.57(1), Florida Statutes.

4 8 . A license to operate an ALF is a public trust and a privilege, not an

entitlement. § 429.01(3), Fla. Stat.

4 9 . As to Case Nos. 19 - 5096 and 20 - 0014, AHCA seeks to revoke Tyval’s

ALF license and impose administrative fines and survey fees based on

instances of deficient practices, noted above as “Tags.”

50 . AHCA has t he burden to prove by clear and convincing evidence the

deficient practices alleged in the administrative complaints. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). The clear and convincing evidence

standard requires “that the evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly remembered; the testimony

must be precise and explicit and the witnesses must be lacking in confusion

as to the facts in issue. The evidence must be of such weight that it produces

in the mind of the trier of fact a firm belief or conviction, without hesitancy,

as to the truth of the allegations sought to be established.” Slomowitz v.

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

5 1 . Section 429.28(1) provides , in pertinent part:

(1) No resident of a facility shall be deprived of any

civil or legal rights, benefits, or privileges

guaranteed by law, the Constitution of the State of

Florida, or the Constitution of the United States as

a resident of a facility. Every resident of a fac ility

shall have the right to:

(a ) Live in a safe and decent living environment,

free from abuse and neglect.

(b) Be treated with consideration and respect and

with due recognition of personal dignity,

individuality, and the need for privacy.

5 2 . Und er section 429.41(1)(k), the use of physical restraints is limited to

half - bed rails as prescribed and documented by the resident’s physician with

the consent of the resident or, if applicable, the resident’s representative.

5 3 . Rule 58A - 5.01 82(6)(g) furt her provides that a facility’s use of half - bed

rails as a physical restraint must be reviewed by the resident’s physician

annually unless the resident chooses to use and can remove or avoid the half -

bed rail without assistance.

5 4 . Section 429.52 requires that ALF facility administrators and their

staff members receive training regarding resident rights and identifying and

reporting abuse, neglect, and exploitation.

5 5 . Rule s 58A - 5.019(1) and 58A - 5.019 1 (3)(c) further require that staff

providing direct car e to residents who have not completed the core training

program, shall receive a minimum of one hour in - service training within 30

days of employment that covers resident rights and facility specific

procedures for recognizing and reporting resident abuse, neglect, and

exploitation.

5 6 . Pursuant to rule 58A - 5.019(1) , a facility administrator is responsible

for the operation and maintenance of the facility, including the management

of all staff and the provision of appropriate care to all residents.

5 7 . A s detailed above, a Tyval staff member’s tying of Resident Nos. 1

and 2 to recliner chairs with bed sheets so that they cannot exit the chairs on

their own and imposing a half - bed rail on Resident No. 2’s bed without proper

consent or a physician’s order we re improper physical restraints , which

directly threatened Resident No s . 1 and 2’s physical or emotional health,

safety, or security. As such, Tyval failed to provide Resident Nos. 1 and 2

with a safe and decent living environment free from abuse or neglec t in

violation of section 429.28 and rule 58A - 5.0182(6). These actions were

intentional or negligent acts by Tyval or its staff member s, which seriously

affected the health, safety, or welfare of Resident Nos. 1 and 2. Moreover, as

the administrator of Tyv al, Ms. Powell failed to provide adequate

management of staff by not ensuring staff members were adequately trained

to recognize and report incidents of abuse and neglect, and Ms. Powell failed

to implement actions to continually honor resident rights to p revent

hazardous situations, in violation of section 429.52 and rule s 58A - 5.019(1)

and 58A - 5.0191(3)(c) . Ms. Powell’s actions were intentional or negligent and

seriously affected the health, safety, or welfare of Resident Nos. 1 and 2.

5 8 . Section 429.275 (2) requires that the facility administrator maintain

personnel records for each staff member , which contains, at a minimum,

documentation of compliance with all training requirements of chapter 429,

part I , or applicable rule, and a copy of all licenses o r certification held by

each staff member.

5 9 . Rule 58A - 5.024 (2) further provides that documentation of compliance

with all staff training and copies of licensing or certifications for all staff be contained within the staff member’s personnel file.

60 . As detailed above, Tyval committed an uncorrected Class III deficient

practice for failing to maintain a personnel record for a staff member which

contained the staff member’s valid CPR certification in violation of

section 429.275(2) and rule 58A - 5.024(2) .

6 1 . Rule 58A - 5.036 (1) requires that an ALF shall prepare a detailed EECP

to serve as a supplement to its CEMP, to address emergency environmental

control in the event of the loss of primary electrical power in the ALF. The

EECP must include information r egarding the acquisition of a sufficient

alternate power source, such as a generator, maintained at the facility, to

ensure that the facility will be equipped to ensure ambient air temperatures

will be maintained at or below 81 degrees Fahrenheit for a min imum of 96

hours in the event of the loss of primary electrical power. The alternative

power source and fuel supply shall be located in an area in accordance with local zoning and the Florida Building Code.

6 2 . As detailed above, Tyval committed a n uncor rected Class III deficient

practice by failing to prepare an EECP by the March 2, 2019, revisit survey.

63. However, AHCA failed to present clear and convincing evidence that

Tyval f ail ed to acquire an alternate power source and fuel supply that was

not in accordance with Florida’s Building Code, in violation of rule 58A - 5.036

by the May 21, 2019, revisit survey .

6 4 . Pursuant to section 429.14(1), AHCA may revoke an ALF license and

impose an administrative fine against a licensee for a violation of an y

provision of chapters 408, part II, and 429, part I, or applicable rules , for

actions by a licensee or facility staff involving an intentional or negligent act

which seriously affects the health, safety, or welfare of a resident of the

facility . Section 408.815(1) further provides that AHCA may revoke an ALF

license for a ctions by a controlling interest which constitute an intentional or

negligent act which materially affect s the health or safety of a resident or

which violate the provisions of chapters 4 08, part II, and 429, part I, or

applicable administrative rules.

6 5 . Pursuant to section 408.813(2)(b), for each Class II violation, AHCA

shall impose an administrative fine as provided by law. A fine shall be levied

notwithstanding the correction of th e violation.

6 6 . Pursuant to section 429.19(2)(b), AHCA shall impose an

administrative fine for a cited C lass II violation in an amount not less than

$1,000.00 and not exceeding $5,000.00 for each violation.

6 7 . Pursuant to section 429.19(2)(c), AHCA shal l impose an

administrative fine for a cited Class III violation in an amount not less than

$500.00 and not exceeding $1,000.00 for each violation.

6 8 . Section 429.19(3) sets forth the following factors AHCA must consider

in determining if a penalty sho uld be imposed and in fixing the amount of the

fine:

(a) T he gravity of the violation, including the

probability that death or serious physical or

emotional harm to a resident will result or has

resulted, the severity of the action or potential

harm, and the extent to which the provisions of the

applicable laws or rules were violated.

(b) Actions taken by the owner or administrator to

correct violations.

(c) Any previous violations.

(d) The financial benefit to the facility of

committing or continuing the violation.

(e) The licensed capacity of the facility.

6 9 . Pursuant to section 429.19(7), i n addition to any administrative fine

imposed, AHCA may assess a survey fee in the amount of $500.00, to cover

the cost of conducting initial complaint inves tigations that result in the

finding of a violation that was the subject of the complaint or monitoring

visits conducted to verify the correction of the violations.

70 . Applying the foregoing legal principles to the instant case and for the

reasons detail ed above , the undersigned concludes that the following action is

warranted: (1) revocation of Tyval’s ALF license ; (2) a total administrative

fine of $1 1 , 000 .00; and (3) a survey fee of $500.00. As to the two Class II

deficiencies, r evocation of Tyval’s AL F license is particularly warranted

under the egregious facts of this case given the severe and inhumane acts of a

staff member’s tying of residents to recliner chairs as an unlawful means of

imposing a physical restraint ; unlawful use of the half - bed rail on Resident

No. 2 as an unlawful physical restraint; and Ms. Powell’s lack of management, supervision, and failure to properly train staff members on

identifying and reporting abuse and neglect. For the same reasons detailed

above, the maximum amount of f ine is warranted for the two Class II

deficient practices. As to the two uncorrected Class III deficiencies, the

minimum amount of fine for each violation is warranted given that the deficiencies involve minor record keeping issues.

71 . As to Case No. 19 - 6305, because AHCA seeks to deny the renewal

license based on errors or omissions with regard to the application and not

specific acts of misconduct , Tyval has the burden to demonstrate, by a

preponderance of the evidence, that it satisfies the require ments for licensure

and is entitled to receive the renewal license. Dep’t of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996); M.H. v. Dep’t of Child.

& Fam. Servs. , 977 So. 2d 755, 761 - 6 3 (Fla. 2d DCA 2008).

7 2 . Pursuant to section 408.806(3)(b), requested information omitted from

an application for license renewal must be filed with AHCA within 21 days after AHCA’s request for omitted information or the application shall be deemed incomplete and shall be withdrawn from further consi deration and

the fees shall be forfeited.

7 3 . Applying the foregoing legal principles to the instant case and for the

reasons detailed above , Tyval failed to prove by a preponderance of the

evidence that it satisfies the requirements for licensure and is e ntitled to

receive the license.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

recommended that the Agency for Health Care Administration enter a final

orde r: (1) revoking Tyval’s ALF license; (2) imposing a total a dministrative

fine of $1 1 , 0 00.00; (3) imposing a survey fee of $500.00; and (4) deny ing

Tyval’s renewal license application.

D ONE A ND E NTERED this 30th day of April , 2020 , in Tallahassee, Leon

County, Florida.

D ARREN A. S CHWARTZ

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 Admi nistrative Hearings

this 30th day of April , 2020 .

C OPIES F URNISHED :

Shaddrick A. Haston, Esquire

Ullman Bursa Law

3812 Coconut Palm Drive , Suite 200

Tampa, Florida 33619

(eServed)

Mary J. Howard, Esquire

Agency for Health Care Administration

525 Mirr or Lake Drive North , Suite 330A

St. Petersburg, Florida 33701

(eServed)

Nicola Brown, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive North , Suite 330H

St. Petersburg, Florida 33701

(eServed)

Richard J. Shoop, Agency Clerk

A gency fo r H ealth C are A dministration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Mary C. Mayhew, Secret ary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

Building 3, Room 3407B

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

T homas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

N OTICE O F R IGHT T O S UBMIT E XCEPTIONS

A ll parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this case.