21-001349F Sebrina Cameron, N.H.A. vs. Department Of Health, Board Of Nursing Home Administrators Status: Closed DOAH Final Order on Thursday, August 12, 2021.

Summary: Petitioner was a prevailing small business party under section 57.111 but Respondent proved that its actions in finding probable cause and issuing the Administrative Complaint were substantially justified.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S EBRINA C AMERON , N.H.A. ,

Petitioner ,

vs. Ca se No. 21 - 1349F

D EPARTMENT OF H EALTH , B OARD OF

N URSING H OME A DMINISTRATORS ,

Respondent .

/

F INAL O RDER

Pursuant to notice, a final hearing was conducted in this case on June 15,

2021, via Zoom teleconference, before Lawrence P. Stevenson, a duly -

designated Administrative Law Judge (ÑALJÒ) of the Division of

Administrative Hear ings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: Christopher Mark David, Esquire

Joshua M. Salmon, Esquire

Fuerst Ittleman David & Joseph

Suite 1800

One Southeast Third Avenue

Miami, Florida 33131

For Respondent: Chad Wayne Dunn, Esquire

Ellen LeGendre Carlo s, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

The issue is whether Respondent, Department of Health, Board of

Nursing Home Administrators (the ÑDepartmentÒ), was Ñsubstantially

justified Ò under section 57.111(3)(e), Florida Statutes, 1 in initiating the

underlying action against the nursing home administrator license of

Petitioner, Sebrina Cameron, N.H.A. (ÑPetitionerÒ or ÑMs. CameronÒ).

P RELIMINARY S TATEMENT

On May 5, 2020, the Departmen t filed a two - count Administrative

Complaint against Petitioner in Department Case No. 2020 - 12066. Count I

alleged that Petitioner violated section 468.1755(1)(h), Florida Statutes

(2019), by engaging in negligence, incompetence, or misconduct in the

pract ice of nursing home administration. Count II alleged that Petitioner

violated section 468.1755(1)(k), by repeatedly acting in a manner inconsistent

with the health , safety , and welfare of the patients of the facility in which she

was the administrator.

O n May 20, 2020, Petitioner sent the Department a completed Election of

Rights form and a Request for an Administrative Hearing. On July 6, 2020,

the Department forwarded the case to DOAH for assignment of an ALJ and

the conduct of a formal hearing. The cas e was given DOAH Case No. 20 -

3025PL and assigned to the undersigned ALJ. By Order dated July 15, 2020,

the undersigned consolidated this case with DOAH Case No. 20 - 3026PL,

involving a related Administrative Complaint against Mark Daniels, N.H.A.

On Decem ber 3, 2020, the undersigned entered an Order relinquishing

jurisdiction of both cases back to the Department to allow the parties to

present a settlement agreement to the Board of Nursing Home

1 Unless otherwise noted, references to the Florida Statutes are to the 202 0 edition. The

charging statute, section 468.1755, has not been amended since 2008.

Administrators (ÑBoardÒ) in DOAH Case No. 20 - 3026PL against Mr . Daniels.

In a Final Order dated January 21, 2021, the Board suspended Mr. DanielsÔ

license for a period of six months, with credit for time served.

On January 29, 2021, the Department sought to amend the

Administrative Complaint filed against Ms. Camero n and scheduled a

hearing before the BoardÔs Probable Cause Panel (the ÑPanelÒ) for approval.

On March 24, 2021, the Panel reconsidered this matter and directed that the

case against Ms. Cameron be dismissed.

On April 15, 2021, Petitioner filed her Motio n for AttorneysÔ Fees (the

ÑMotionÒ) at DOAH, seeking an award of attorneysÔ fees and costs incurred in

defending the Administrative Complaint in DOAH Case No. 20 - 3025PL. The

fees case was given DOAH Case No. 21 - 1349F and assigned to the

undersigned, who s cheduled it for hearing on June 15, 2021. On June 2, 2021,

the parties filed a Joint Motion to Bifurcate Hearing, requesting that the

issue of entitlement to attorneysÔ fees be heard prior to , and separately from ,

the issue of the reasonableness of the fee s. The motion was granted by Order

dated June 2, 2021.

On June 9, 2021, the parties filed an Amended Joint Pre - h earing

Stipulation, which has been used as one basis for the Findings of Fact below.

The final hearing was convened and completed on June 15, 2021. The

hearing consisted of legal argument. Neither party called a witness. The

DepartmentÔs Exhibits 1 through 5 were admitted without objection.

The one - volume Transcript of the final hearing was filed with DOAH on

July 12, 2021. Both parties timely filed Proposed Final Orders, which have

been considered in the preparation of this Final Order.

F INDINGS OF F ACT

Based on the record as a whole, the following Findings of Fact are made:

1. The Department, through the Board, is the entity authorized by sta tute

to issue licenses to nursing home administrators and to impose discipline on

those licenses when warranted. § 468.1685(4), Fla. Stat.

2. Ms. Cameron is a licensed nursing home administrator, having been

issued license number NH 4950.

3. Case No. 20 - 30 25PL was initiated by the Department, a Ñstate agencyÒ

for purposes of section 57.111(3)(f).

4. Ms. Cameron qualifies as a Ñsmall business partyÒ as defined in section

57.111(3)(d). Because the Administrative Complaint underlying Case No. 20 -

3025PL was ult imately dismissed by the Board, Ms. Cameron is a Ñprevailing

small business partyÒ under section 57.111(3)(c)1.

5. The sole issue presented in this bifurcated proceeding is whether the

Department was substantially justified in bringing the Administrative

C omplaint against PetitionerÔs nursing home administrator license.

6. Section 57.111(3)(e) states that a proceeding is Ñsubstantially justifiedÒ

if Ñit had a reasonable basis in law and fact at the time it was initiated by a

state agency.Ò

7. On May 4, 202 0, the Department presented its investigation and

recommendation in Department Case No. 2020 - 12066 to the Panel, which

decides whether there is a sufficient legal and factual basis for the

Department to move forward with formal charges in license disciplin e cases.

8. The Panel reviewed the following materials (hereinafter ÑPanel

MaterialsÒ): a draft of the proposed Administrative Complaint; a copy of the

DepartmentÔs Order of Emergency Suspension of License; PetitionerÔs

detailed response to the allegation s; a 980 - page Supplemental Investigative

Report dated April 23, 2020; and a 196 - page Final Investigative Report dated

April 22, 2020. The Panel found probable cause and authorized the filing of

the Administrative Complaint against Ms. Cameron.

9. The inves tigation and subsequent Administrative Complaint related to

an outbreak of COVID - 19 involving several residents at Cross Landings

Health and Rehabilitation Center, a nursing home in Monticello. The

outbreak commenced on or about April 5, 2020, when a resid ent at Cross

Landings tested positive for CO VI D - 19. By April 14, 2020, 11 additional

residents had tested positive.

10. On April 9, 2020, a team of four registered nurses (ÑRN TeamÒ) ,

contracted by the DepartmentÔs Division of Emergency Management , arrive d

at Cross Landings with the stated assignment of assessing the facilityÔs

infection control procedures and providing education and training on hygiene

practices, infection control, isolation procedures, and the proper use of

personal protective equipment (ÑPPEÒ). The RN Team was also tasked with

identifying and recommending actions to be taken to control the spread of

COVID - 19 infections. The RN Team worked at Cross Landings until April 14,

2020.

11. The record indicates that the RN TeamÔs dealings with t he staff of

Cross Landings was contentious, particularly with regard to the facilityÔs

owner, administrators , and senior nursing staff, who regarded the teamÔs

behavior as high - handed, intrusive, and not consistent with its supposed

mission of helping Cros s Landings cope with the COVID - 19 outbreak. From

the RN TeamÔs point of view, Cross LandingsÔ leadership was uncooperative

when not outright obstructive.

12. At all times material to the Administrative Complaint, Cross Landings

had two licensed nursing h ome administrators on site responding to the

outbreak.

13. The administrator of record was Mark Daniels. However, Mr. Daniels

submitted his resignation to Cross Landings on April 7, 2020. During the

teamÔs stay, Ms. Cameron was also at the facility in her role as regional

administrator for the parent company of Cross Landings, to ensure continuity

of care for the residents and to help on the administrative side.

14. Petitioner argues that the title Ñregional administratorÒ was an

honorific bestowed upon he r by the parent company in recognition of her

years of service to the organization. The title carried no additional powers or

duties. Petitioner states that Ms. Cameron had no supervisory authority over

Mr. Daniels, who was at all relevant times the admini strator of record at

Cross Landings.

15. At the time of the investigation, the Department was unaware that

the title Ñregional administratorÒ carried no actual authority. The

Department understood the title to mean that Ms. Cameron was senior to

Mr. Daniel s and exercised some level of administrative authority at Cross

Landings. It appeared to the RN Team that Ms. Cameron was a figure of

authority at Cross Landings and that she was treated as such by the staff of

the facility.

16. The RN Team created daily r eports detailing its observations at Cross

Landings for April 9 through 11, 13, and 14, 2020. During its subsequent

investigation, the Department interviewed the members of the RN Team

regarding their observations at Cross Landings. The daily reports and t he

interviews were part of the investigative file that was before the Panel when

it deliberated probable cause in Ms. CameronÔs case.

17. The RN Team reported widespread failure in Cross LandingsÔ infection

prevention and control measures, including the im proper use of PPE by staff,

inadequate hygiene procedures, the failure to properly isolate COVID - 19

suspected or positive residents, the failure to timely notify staff members of

COVID - 19 positive residents, and the failure to properly screen individuals

e ntering the facility, including Ms. Cameron. 2

18. The RN Team also reported an overall failure to deliver adequate

resident care, including residents who were soiled with feces or urine,

2 The RN TeamÔs reportage was disputed by Cross Landings and would have b een subject to

challenge by Ms. Cameron at any subsequent hearing. The RN TeamÔs reportage is relayed

in this Final Order not as fact but as information that was available to the Panel in its

deliberations.

residents who did not have bed sheets, residents who were not receiv ing

adequate wound care, and residents with undated and soiled surgical

dressings. The RN Team reported being Ñshocked and horrifiedÒ by the

conditions at Cross Landings.

19. The RN Team reported that Ms. Cameron instructed Cross LandingsÔ

staff to not lis ten to the RN TeamÔs recommendations and that Ms. Cameron

called the RN Team Ñnothing but trouble.Ò Ms. Cameron and her fellow senior

employees believed, not without reason, that the main purpose of the RN

Team was not to help Cross Landings cope with the COVID - 19 outbreak , but

to compile a record for the purpose of disciplinary action against the facility

and its administrators.

20. The RN Team reported that Ms. Cameron, Mr. Daniels, and Director

of Nursing Mary Lewis actively obstructed the RN TeamÔs effo rts to improve

conditions at the facility. The RN Team reported that the trio became

increasingly hostile to the RN Team. The RN Team reported that

Ms. Cameron, Mr. Daniels, and Ms. Lewis stated that they were following

orders from the facilityÔs owner, Ka rl Cross.

21. On or about April 14, 2020, the Department issued Quarantine/

Isolation Orders directing that 13 of Cross LandingsÔ 42 residents be

relocated to another facility due to Cross LandingsÔ insufficient infection

control practices and the resulta nt spread of COVID - 19 within the facility.

22. On or about April 15, 2020, the Department issued additional Orders

requiring the remaining Cross LandingsÔ residents to undergo COVID - 19

testing.

23. PetitionerÔs Motion does not dispute the factual allegat ions of the

Administrative Complaint as to her actions at Cross Landings between

April 9 and 14, 2020. PetitionerÔs case rests on the legal argument that the

Department cannot take disciplinary action against Ms. CameronÔs nursing

home administrator licens e under the facts alleged because Ms. Cameron was

not the designated administrator of record at Cross Landings. The Motion

states:

Here, the Administrative Complaint against

Ms. Cameron was not substantially justified

because Mark Daniels Ð and NOT Sebrina

C ameron Ð was the designated administrator of

Cross Landings at all times referenced in the

Amended Complaint. Ms. Cameron was at all

relevant times, and continues to be, the

administrator of a completely different facility,

Crosswinds Health and Rehabilitati on Center

(ÑCrosswindsÒ). These facts were known to the

[Department]. The identity of the actual

administrator was readily available to [the

Department] and was easily determined through a

simple review of readily available state records.

24. Petitioner r elies on a rule of the Agency for Health Care

Administration (ÑAHCAÒ) regulating the licensure, administration, and fiscal

management of nursing homes. Florida Administrative Code R ule 59A -

4.103(4) provides:

(4) Administration.

(a) The licensee of each n ursing home must have

full legal authority and responsibility for the

operation of the facility.

(b) The licensee of each facility must designate one

person, who is licensed by the Florida Department

of Health, Board of Nursing Home Administrators

under C hapter 468, Part II, F.S., as the

Administrator who oversees the day to day

administration and operation of the facility . [ 3 ]

(c) Each nursing home must be organized according

to a written table of organization. ( e mphasis

added) .

3 This portion of the rule implements section 40 0.141(1)(a), Florida Statutes, which provides

that a licensed nursing home facility shall Ñ[b] e under the administrative direction and

charge of a licensed administrator. Ò Section 400.021(1) defines ÑadministratorÒ as Ñthe

licensed individual who has the g eneral administrative charge of a facility.Ò

25. The Motion notes that the Administrative Complaint acknowledges

that Ms. Cameron was not the designated administrator of record at Cross

Landings by repeatedly referring to her as the Ñregional administratorÒ of the

facility. The Motion goes on to argue as follows:

There are no rules, codes, statutes, or any other

authoritative sources that recognize the existence

of or define the responsibilities of a Ñregional

administrator.Ò Ms. Cameron was given the

honorific title as recognition of her years of quality

service, but the titl e did not come with any

legislatively recognized responsibilities, official

responsibilities, authority, or monetary incentives

for any time she chose to spend helping out at

Cross Landings during the once - in - a - lifetime global

pandemic. To be clear, Ms. Ca meron was not

required by contract, duties, law, or regulation to

step foot in Cross Landings and put herself at risk

during a deadly pandemic. Despite this, the

[Department] elected to proceed against her license

through [sections] 468.1755(1)(h) and (k).

26. Count I of the Administrative Complaint alleged that Petitioner

violated section 468.1755(1)(h), by engaging in fraud, deceit, negligence,

incompetence, or misconduct in the practice of nursing home administration ,

which is defined as follows by sect ion 468.1655(4):

(4) ÑPractice of nursing home administrationÒ

means any service requiring nursing home

administration education, training, or experience

and the application of such to the planning,

organizing, staffing, directing, and controlling of

the t otal management of a nursing home. A person

shall be construed to practice or to offer to practice

nursing home administration who:

(a) Practices any of the above services.

(b) Holds himself or herself out as able to perform,

or does perform, any form of nursing home

administration by written or verbal claim, sign,

advertisement, letterhead, or card; or in any other

way represents himself or herself to be, or implies

that he or she is, a nursing home administrator.

27. The Department argues that the stat utory definition of the practice of

nursing home administration does not limit its regulatory reach to the

designated administrator of a nursing home , but reaches a person who holds

herself out as able to perform or who does perform nursing home

administra tion. The Department states that an AHCA rule regarding the

overall operation of nursing home facilities does not govern the DepartmentÔs

regulation of an individual licensee. The Department contends that

Ms. CameronÔs undisputed actions at Cross Landings met the statutory

definition of the practice of nursing home administration and that it was

reasonable for the Panel to find probable cause based on those actions.

28. The Department points out that Ms. Cameron used her title of

regional administrator to o rder supplies on behalf of Cross Landings,

including PPE and sanitizing products. Ms. Cameron verbally directed Cross

LandingsÔ staff members. In one instance noted by the RN Team, a newly

hired Cross Landings certified nursing assistant (ÑCNAÒ) was given a

painterÔs mask that was too large for her face. The RN Team instructed her to

replace it with a smaller mask. The CNA told the RN Team that

Ms. Cameron had given her the mask and that she had been given no

training on COVID - 19 procedures or PPE. Ms. Came ron subsequently

refused to give the CNA a smaller mask and instead offered her a used N95

mask from the trunk of her car. When the CNA refused to put on the used

mask, she was forced to resign from her position.

29. Ms. Cameron represented Cross Landings in dealing with the

Department regarding the placement of a resident who was suspected to have

COVID - 19. Ms. Cameron met with the RN Team on behalf of Cross Landings.

The Department notes that Ms. Cameron held herself out as able to perform

nursing home a dministration and/or represented or implied that she was a

nursing home administrator at Cross Landings. Ms. Cameron was physically

present at Cross Landings in her role as regional administrator. She

employed the title Ñregional administratorÒ to some eff ect and used the

administratorÔs office while at Cross Landings. She was privy to

communications between Mr. Cross and AHCA regarding the RN Team and

COVID - 19 infection control procedures at Cross Landings.

30. Though she was not the administrator of reco rd, Ms. Cameron held

herself out and was treated as having actual administrative authority at

Cross Landings during the COVID - 19 outbreak and the RN TeamÔs visit in

April 2020. There was a reasonable basis in law and fact to find that

Petitioner engaged in the practice of nursing home administration at Cross

Landings as defined in section 468.1655(4)(a) and/or (b), due to her

performance of nursing home administrator services and/or by her holding

herself out to be a nursing home administrator.

31. Count I I of the Administrative Complaint alleged that Petitioner

violated section 468.1755(1)(k), by repeatedly acting in a manner inconsistent

with the health, safety, or welfare of the patients of the facility in which she

is the administrator.

32. Chapter 468 , enacted to ensure that every nursing home

administrator practicing in Florida meets the minimum requirements for safe

practice, defines a nursing home administrator as, Ña person who is licensed

to engage in the practice of nursing home administration in this state under

the authority of this part.Ò £ 468.1655(3), Fla. Stat. (2019).

33. As noted above, section 400.021 defines ÑadministratorÒ as Ñthe

licensed individual who has the general administrative charge of a facility.Ò

The stated purpose of chapte r 400, part II, is to provide for the development,

establishment, and enforcement of basic standards for the health, care, and

treatment of persons in nursing homes and the maintenance and operation of

such institutions in a manner that will ensure safe, a dequate, and

appropriate care, treatment, and health of persons in such facilities.

§ 400.011, Fla. Stat.

34. At all times relevant to this proceeding, Ms. Cameron was a licensed

nursing home administrator pursuant to chapter 468 and used the title of

reg ional administrator. The title Ñregional administratorÒ is not defined by

statute but in context carries an ordinary meaning that the individual is the

administrator supervising more than one nursing home in a geographic area.

35. Ms. Cameron stated that s he was at Cross Landings to ensure

continuity of care after Mr. Daniels tendered his resignation. It was not

illogical for the Department to conclude that Ñcontinuity of careÒ meant that

Ms. Cameron was sent to Cross Landings to perform the duties of

admin istrator as Mr. Daniels prepared for his departure. Ensuring

Ñcontinuity of careÒ would certainly require control over the various

components of a nursing home to provide health care and activities of daily

living, including the management of nursing and h ousekeeping staff,

oversight of meal services, and the facilitation of social and recreational

activities. Such oversight or control is tantamount to the general

administrative charge of the facility. Ms. Cameron would not have been able

to ensure continui ty of care if she did not have de facto general

administrative charge of Cross Landings.

36. Ms. CameronÔs general administrative charge over the facility was

evidenced by her actions at Cross Landings, including ordering supplies,

distributing supplies t o staff members, directing staff members,

communicating on behalf of the facility, meeting with the RN Team in the

place of Mr. Daniels, and using the administratorÔs office as her own.

37. Ms. CameronÔs licensure as a nursing home administrator, her use of

the title regional administrator, her stated purpose for being present at Cross

Landings, and her actions at Cross Landings provide sufficient grounds for a

reasonable person to believe that she had the general administrative charge

of Cross Landings. T hough she was not the administrator of record and did

not have sole administrative charge of the facility, Ms. Cameron presented

herself as the person in charge and was treated as such by Cross LandingsÔ

staff.

38. Based on the foregoing, at the time this proceeding was initiated, the

Department had a reasonable basis in law and fact to find that Petitioner

was the administrator at Cross Landings as defined in sections 468.1655(3)

and 400.021(1), and was subject to discipline for repeatedly acting in a

man ner inconsistent with the health, safety, or welfare of the patients of the

facility.

39. During the probable cause hearing on May 4, 2020, the Panel

discussed and considered whether Ms. Cameron was subject to discipline for

her actions at Cross Landings. Members of the Panel raised questions about

her status as the administrator of Cross Landings. The Department informed

the Panel that Mr. Daniels was the administrator of record for Cross

Landings. The Panel discussed what duties and obligations a license d

administrator other than the administrator of record would have in this

specific scenario.

40. The Panel considered that Ms. Cameron was the regional

administrator for the parent company, that she was acting in an

administrative capacity on the ground a t Cross Landings, and that she

therefore had some degree of responsibility. The Panel concluded that

Ms. Cameron was operating in the capacity of administrator by being the

regional administrator on site. The chair of the Panel reasonably concluded

that a regional administrator would be in a position to exercise control over

Mr. Daniels and that Mr. Daniels was reporting to Ms. Cameron.

41. It is found that the information before the P anel was sufficient to

support the PanelÔs decision. The Department was substantially justified in

finding probable cause and deciding to pursue an Administrative Complaint

against Ms. Cameron.

C ONCLUSIONS OF L AW

42. The Division of Administrative Hearings has jurisdiction of the subject

matter of and the parties to this pro ceeding pursuant to s ections 120.569,

120.57(1), and 57.111(4), Florida Statutes.

43. Section 57.111, the Florida Equal Access to Justice Act, provides, in

pertinent part, as follows:

(4)(a) Unless otherwise provided by law, an award

of attorney Ô s fees an d costs shall be made to a

prevailing small business party in any adjudicatory

proceeding or administrative proceeding pursuant

to chapter 120 initiated by a state agency, unless

the actions of the agency were substantially

justified or special circumstanc es exist which would

make the award unjust.

44. In proceedings to establish entitlement to an award of attorney Ô s fees

and costs pursuant to section 57.111, the initial burden of proof is on the

party requesting the award to establish by a preponderance o f the evidence

that it prevailed in the underlying disciplinary action and that it was a small

business party at the time the disciplinary action was initiated. Once the

party requesting the award has met this burden, the burden of proof shifts to

the agen cy to establish that it was substantially justified in initiating the

disciplinary action. See Helmy v. DepÔt of Bus. & ProfÔl Reg. , 707 So. 2d 366,

368 (Fla. 1st DCA 1998); DepÔt of ProfÔl Reg., Div. of Real Estate v. Toledo

Realty, Inc. , 549 So. 2d 715, 717 (Fla. 1st DCA 1989).

45. Ms. Cameron prevailed in the underlying proceeding. § 57.111(3)(c)1.,

Fla. Stat.

46. Ms. Cameron is a Ñsmall business partyÒ as contemplated by section

57.111(3)(d).

47. The sole issue in this bifurcated proceeding is whether t he

Department's actions were Ñsubstantially justified.Ò Section 57.111(3)(e)

provides that a proceeding is Ñ substantially justified Ò if it had a Ñreasonable

basis in law and fact at the time it was initiated by a state agency .Ò ( e mphasis

added). The Ñsubst antially justifiedÒ standard falls somewhere between the

Ñno justiciable issueÒ standard of section 57.105, and an automatic award of

fees to a prevailing party. Helmy , 707 So. 2d at 368. It does not require the

agency to demonstrate that its actions were correct; rather, an agency need

only present an argument for its actions that could satisfy a reasonable

person. Ag. for Health Care Admin. v. MVP Health, Inc. , 74 So. 3d 1141, 1144

(Fla. 1st DCA 2011).

48. In Department of Health v. Cralle , 852 So. 2d 930 , 932 (Fla. 1st DCA

2003), the court set forth the following temporal limitation on the required

analysis, quoting from Fish v. Department of Health , 825 So. 2d 421, 423 (Fla.

4th DCA 2002):

In resolving whether there was substantial

justification or a re asonable basis in law and fact for

filing an administrative complaint, Ñone need only

examine the information before the probable cause

panel at the time it found probable cause and directed

the filing of an administrative complaint.Ò

See also Ag. for He alth Care Admin. v. Gonzalez , 657 So. 2d 56 (Fla. 1st DCA

1995)(proper inquiry is whether evidence before a probable cause panel was

sufficient for institution of disciplinary action); MVP Health , 74 So. 3d at 1144

(ÑThe reviewing body Ð whether DOAH or a co urt Ð may not consider any new

evidence which arose at a fees hearing, but must focus exclusively upon the

information available to the agency at the time that it acted.Ò).

49. Thus, for the Department to demonstrate that it had substantial

justification for its actions, the Panel must have had a Ñsolid though not

necessarily correct basis in fact and law for the position it took in the action,Ò

i.e., finding probable cause and directing the filing of the Administrative

Complaint. Fish , 825 So. 2d at 423 ( quo ting McDonald v. Schweiker , 726 F.2d

311, 316 (7th Cir. 1983) ) .

50. The Panel had a reasonable basis in law and fact at the initiation of

this proceeding to find probable cause and authorize the filing of the

Administrative Complaint based on the record a nd information available to

the Panel at the time.

51. The record and information available to the Panel demonstrated that

COVID - 19 was spreading throughout Cross Landings and that the overall

quality of care was being compromised. The RN TeamÔs daily rep orts and

interview statements alleged facts indicating that Ms. Cameron failed to

implement adequate infection control procedures and actively obstructed the

RN TeamÔs efforts. The Panel Materials included sufficient information to

substantially justify an Administrative Complaint alleging that Petitioner

engaged in negligence, incompetence, or misconduct, in violation of section

468.1755(1)(h), and/or repeatedly acted in a manner inconsistent with the

health, safety, or welfare of the patients of the facil ity in violation of section

468.1755(1)(k).

52. The record and information available to the Panel demonstrated that

Ms. Cameron was a licensed nursing home administrator and was the

regional administrator of Cross Landings. While at Cross Landings, she

or dered supplies, distributed supplies to staff, directed staff, caused at least

one staff member to resign her position, used the administratorÔs office, and

met with the RN Team in the place of the outgoing administrator of record.

The Panel Materials prov ided a sufficient basis to substantially justify that

Petitioner was engaged in the practice of nursing home administration while

at Cross Landings pursuant to section 468.1655(4), was the administrator of

Cross Landings pursuant to sections 468.1655(3) an d 400.021(1), and was

therefore subject to discipline for her conduct at Cross Landings as charged

in the Administrative Complaint.

53. PetitionerÔs position is that she could not be subject to discipline under

section 468.1755(1)(h) or (k) because she ha d not been designated the

administrator of record at Cross Landings. Petitioner cites to AHCAÔs

rule 59A - 4.103(4)(b), which provides: ÑThe licensee of each facility must

designate one person, who is licensed by the Florida Department of Health,

Board of Nu rsing Home Administrators under Chapter 468, Part II, F.S., as

the Administrator who oversees the day to day administration and operation

of the facility.Ò If there can be only one administrator per facility, reasons

Petitioner, then only one administrator can be subject to discipline for the

events at Cross Landing s and that would be the administrator of record,

Mr. Daniels.

54. The Department counters that rule 59A - 4.103(4)(b) is an AHCA rule

that imposes a duty on the nursing home facility to designate a n

administrator of record and is unrelated to disciplinary actions regarding the

conduct of individual nursing home administrators. The Department argues

that AHCA does not regulate the practice of nursing home administration

and its rules regulating facil ity licensure have no bearing on this proceeding.

55. The Department points out that AHCAÔs rules also require that

nursing home facilities designate one registered nurse to be the d irector of

n ursing and one physician to be the m edical d irector. Fla. Admi n. Code

R. 59A - 4.108(1) and 59A - 4.1075(1). AHCA does not regulate individuals

licensed as registered nurses or physicians; the Department does.

Accordingly, AHCAÔs requirement that a facility designate a d irector of

n ursing and m edical d irector has no effe ct on disciplinary actions taken by

the DepartmentÔs Board of Nursing or Board of Medicine for violations

prescribed under the respective licensee practice acts, including negligence or

malpractice.

56. The Department also observes that the language of th e statutes under

which the Administrative Complaint charged Ms. Cameron is not limited to

the administrator of record. Count I of the Administrative Complaint alleges

that Ms. Cameron violated section 468.1755(1)(h), which applies to any

person engaged Ñin the practice of nursing home administration.Ò As noted in

the Findings of Fact above, Ñpractice of nursing home administration , Ò as

defined in section 468.1655(4) , is not limited to an administrator of record but

reaches persons holding themselves out as nursing home administrators.

57. Count II of the Administrative Complaint alleges that Ms. Cameron

violated section 468.1755(1)(k), which limits the offense to Ñacting in a

manner inconsistent with the health, safety, or welfare of the patients of the

fac ility in which he or she is the administrator .Ò ( e mphasis added) . However,

as the Department states, the emphasized language does not restrict Ñthe

administratorÒ to the individual whom the facility has designated as

administrator of record with AHCA. In t his case, Ms. CameronÔs apparent

authority was sufficient to bring her within the ambit of the statute.

58. The DepartmentÔs position is sensible and consistent with the

purposes of the regulatory scheme. This case presents an unusual situation

in which mo re than one licensed individual was exercising the authority of a

nursing home administrator at a single facility. It would be anomalous for

one of those licensed individuals to enjoy immunity under the nursing home

administration practice act because of a n AHCA rule regulating the facility in

question.

59. Petitioner was a licensed nursing home administrator, was present at

Cross Landings to ensure continuity of care for the residents, and was

performing services which would ordinarily be performed by an

administrator. Petitioner was one of the two licensed administrators on site

during the outbreak. Petitioner held a title that, by its ordinary meaning,

would appear to any outside observer to confer a position of authority within

her organization. She gav e orders and her orders were obeyed. It was entirely

reasonable for the Panel to consider the evidence in its entirety and conclude

that Ms. Cameron had violated section 468.1755(1)(h) and (k).

60. In summary, Ms. Cameron was the prevailing small business party in

the underlying proceeding. However, the Department established that its

actions were substantially justified, in that it had a reasonable basis in law

and fact at the time probable cause was found.

O RDER

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

O RDERED that the Motion for AttorneysÔ Fees filed by Sebrina Cameron,

N.H.A., is denied.

D ONE A ND O RDERED this 12th day of August , 2021 , in Tallahassee, Leon

County, Florida.

S

L AWRENCE P. S TEVENSON

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of August , 2021 .

C OPIES F URNISHED :

Ellen LeGendre Carlos, Esquire Christopher Mark David, Esquire

Department of Health Fuerst Ittleman David & Joseph

Bin C - 65 Suite 1800

4052 Bald Cypress Way One Southeast Third Avenue

Tallahassee, Florida 32399 Miami, Florida 33131

Chad Wayne Dunn, Esquire Joshua M. Salmon, Esquire

Department of Health Fuerst Ittleman David & Joseph

Bin C - 65 Suite 1800

4052 Bald Cypress Way One Southeast Third Avenue

Tallahassee, Florida 32399 Miami, Florida 33131

Anthony B. Spivey, DrBA Louise St. Laurent, General Co unsel

Executive Director Department of Health

Board of Nursing Home Administrators 4052 Bald Cypress Way, Bin C65

Department of Health Tallahassee, Florida 32399

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399 - 3257

Scott Rivkees, M.D.

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judicial

review pursuant to section 120.68, Florida Statutes. Re view proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as other wise provided by law.