Tag Archives: ALF licensure

Invoking Fifth Amendment by Applicant’s Personnel May Result in Denial of Their Application for a License

The foregoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter

FACTS: The Agency for Health Care Administration (“AHCA”) denied Avalon Assisted Living III’s (“Avalon III”) application for licensure of an assisted living facility in Orlando. Avalon III challenged the denial, and the case was referred to DOAH for a formal hearing. During AHCA’s attempts to obtain discovery, two people closely associated with Avalon III (Mr. Robert Walker and Mrs. Chiqquittia Carter-Walker) invoked their Fifth Amendment privilege against selfincrimination in response to questions regarding the grounds stated by AHCA in its initial decision to deny the license. These areas of inquiry included alleged unlicensed activity, the ownership and control of Avalon III, and Avalon III’s lease on the facility sought to be licensed. Based on Avalon III’s failure to provide any relevant information during three discovery depositions, AHCA filed a Motion to Dismiss on September 16, 2013. In an Order issued on September 27, 2013, the ALJ stated that dismissal of Avalon III’s petition and denial of its licensure application would be an appropriate sanction. However, in an abundance of caution, the ALJ gave Avalon III one more chance to have the Walkers answer deposition questions without invoking the Fifth Amendment. Avalon III responded to the Order by filing a notice that the Walkers would answer deposition questions regarding ownership and the lease without invoking the Fifth Amendment. Conspicuously absent from the notice was any assurance the Walkers would answer questions about the alleged unlicensed activity.

OUTCOME: The ALJ issued an Order recommending that AHCA deny Avalon III’s application. In contrast to licensure disciplinary cases in which the agency has the burden of proof, Avalon III had the burden of proving entitlement to licensure, and the Walkers were the only people with knowledge of the relevant issues. Accordingly, their refusal to answer deposition questions left Avalon III “in an untenable position,” preventing Avalon III from proving its entitlement to licensure.

Source:

Avalon’s Assisted Living III, LLC v. Agency for Health Care Administration, DOAH Case No. 09-6342 (Recommended Order Oct. 9, 2013).

About the Author: The foregoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013), a publication of the Administrative law Section of The Florida Bar.

Orlando-based Assisted Living Facilities Appeal ALJ Decision, Win Case Against AHCA

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Two related assisted living facilities (ALFs) based in Orlando won a case against the Agency for Health Care Administration (AHCA) on appeal. The First District Court of Appeal heard the case and filed an opinion in favor of the ALFs on November 30, 2011.

 To view the opinion in this case, click here.

Appeals Court Dismissed Three Complaints Made by AHCA.

On appeal, the ALFs challenged a final order issued by AHCA. The amended final order revoked the ALFs’ licenses, denied their licensure renewal applications, and imposed administrative fines. 

After conducting an investigation, AHCA filed a four count administrative complaint. The court of appeal dismissed AHCA’s conclusion that the first three counts were proven. The appeal court dismissed these counts because they consisted of uncorroborated hearsay.

AHCA Alleged ALFs’ Owners Operated Third Facility Without a Valid License.

The fourth count against the ALFs alleged that the ALFs’ owners/administrators operated a third Florida facility without obtaining a valid license or qualifying for a license exemption. The ALFs argued that AHCA failed to present any witness at the administrative hearing who had first-hand knowledge that the facility in question was providing personal services “for a period of 24 hours to one or more adults who are not relatives of the owner or administrator.” These are material elements of the statutory definition of assisted living facility that AHCA was required to prove.

AHCA Offered Testimony from the ALFs’ Employees at Administrative Hearing.

At the administrative hearing, AHCA offered testimony from an employee who worked at the third facility from 8:00 A.M. to 8:00 P.M. She testified that the facility had five or six residents when she worked there for six weeks in Summer 2009. She said that she never saw a resident leave the facility at the end of the day or arrive in the morning.

In the recommended order, the administrative law judge (ALJ) found that there was no evidence presented by the ALFs that the residents were transported to another location at night. Click here to view the recommended order.

Court of Appeal Rules ALJ Improperly Shifted the Burden of Proof, Reverses Final Order.

The First District Court of Appeal ruled that the ALJ improperly shifted the burden of proof to the ALFs. The burden was misplaced when the ALJ suggested that the ALFs should have provided proof that the residents were transported out of the facility during the night. According to the court of appeal, it was AHCA’s burden to establish that the facility was an unlicensed ALF. Furthermore, the court ruled that the testimony offered by AHCA did not foreclose the possibility that these residents were at the facility for periods less than 24 hours. Therefore, the court ruled that AHCA did not meet its burden of proof. The final order was reversed.

Contact Health Law Attorneys Experienced in Representing Assisted Living Facilities.

The Health Law Firm and its attorneys represent assisted living facilities (ALFs) and ALF employees in a number of different matters including incorporation, preparing contracts, defending the facility against malpractice claims, licensing and regulatory matters, administrative hearings, and routine legal advice.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources Include:

Smallwood, Mary F. “Adjudicatory Proceedings.” Administrative Law Section Newsletter. (Apr. 2012).

LeadingAge Florida. “Florida Supreme Court Requested to Hear ALF Case.” LeadingAge Florida. (2012). From: http://www.fahsa.org/displaycommon.cfm?an=1&subarticlenbr=96

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.