STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-413

)

JUBILEE RETIREMENT CENTER, )

)

Respondent. )

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-988

)

JUBILEE RETIREMENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, conducted a formal hearing in these cases on May 21, 1981, in Coral Cables, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Martha Barrera, Esquire

Department of Health and Rehabilitative Services

1320 South Dixie Highway, Eleventh Floor Coral Cables, Florida 33146

For Respondent: Nelson Rosenfeld, Administrator

Jubilee Retirement Center 8000 Biscayne Boulevard

Miami, Florida 33135

ISSUE

The issue presented by these cases is whether fines totaling $350.00 should be imposed upon the Respondent for its alleged failure to report the absence of two residents from the facility, the first occurring on December 4, 1980, and

the second on January 7, 1981, to the Petitioner as required by Chapter 10A-5, Florida Administrative Code.

FINDINGS OF FACT

1. The Respondent Jubilee Retirement Center is licensed as an Adult Congregate Living Facility (ACLF) pursuant to the "Adult Congregate Living Facilities Act", Part II, Chapter 400, Florida Statutes.

   
   

2. On December 4, 1980 a sixty-three-year-old female resident of the facility who was on medication left the center sometime between the lunch and evening meal. A thorough search of the Center and the immediate neighborhood by Center personnel proved fruitless and a missing person report was promptly filed by the Respondent with the City of Miami Police Department. (Case No. 339- 3748B). The resident's husband was also contacted immediately by the Respondent. On December 12, 1980, an article appeared at page 4B of the Miami Herald entitled, "Woman Walks Out 0f Nursing Home, Vanishes." The article apparently alerted the Department to the disappearance of this particular resident. Mr. Rosenfeld, Administrator of the Jubilee Retirement Center, was contacted by Mr. Alvin DeLaney, ACLF Program Specialist, on December 12, 1980, concerning this incident and at that time he informed Mr. DeLaney that the resident was located at the Miami Beach Mental Health Center and sent from there to Dodge Memorial Hospital on December 8, 1980. On December 15, 1980, the resident was transferred from Dodge Memorial to South Florida State Hospital.

   
   

3. Following this incident, Rosenfeld discussed with DeLaney the requirements of Rule 10A-5-06, Florida Administrative Code, which requires the reporting of major incidents as defined at Rule 10A-5.01(18), Florida Administrative Code, within 24 hours following the occurrence of the incident. Rosenfeld agreed to follow the Rule in the event of any future problems. Rosenfeld was unaware of this Rule since he had not received a copy of Chapter 10A-5 which was mailed by the Department to all licensed ACLF operators in July, 1980. Following his discussion with DeLaney, Rosenfeld also believed that in computing the time limit, three working days would be allowed and weekends and holidays would be excluded.

   
   

4. On January 12, 1981, Bill Garrett, then an ACLF Specialist with the Department, received a call from Rosenfeld concerning the disappearance on January 6, 1981, of a male resident from the Center. On January 7, 1981, Center personnel had reported the resident to the City of Miami Police as a missing person and contacted a relative of the resident. From January 17-27, 1981, Rosenfeld was in frequent contact with the Department concerning efforts to locate this resident.

   
   

5. The resident was located through an obituary in the Miami Herald which stated that the resident passed away on January 26, 1981 following a heart attack which occurred on January 6, 1981, in a MacDonald's Restaurant near the Center. Following this incident, Rosenfeld agreed to notify the Department within twenty-four hours of discovery of any missing resident.

   
   

6. The Center has implemented policies designed to minimize the residents' ability to leave the facility without notifying Center personnel and at the same time guaranteeing basic privacy rights of residents. A twenty-four hour a day sign-in and sign-out sheet is now located at the front desk and alarms have been installed at all other exits. Many of the residents are former mental patients and this coupled with the size and physical lay-out of the facility makes it difficult for the Center to be aware of the movement of all residents.

   Additionally, at the same time of these incidents the Department had no access to the Missing Persons Report Registry maintained by law enforcement agencies and could do little to assist in the search for missing residents other than contact friends or relatives who might be unknown to the ACLF operators.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to these proceedings.

   
   

8. Pursuant to Section 400.414, Florida Statutes, the Department may impose an administrative fine for any

   
   

   1. . . intentional or negligent act materially affecting the health or safety of a resident of the facility. . . [or]

      * * *

      (c) [V]iolation of the provisions of this act or of any minimum standards or rules promulgated hereunder.

      
      

      Rule 10A-5.06(2) Florida Administrative Code, requires that major incidents

      
      

      . . . shall be reported to and received by the District Administrator or his/her designee as soon as practical, but not to exceed 24 hours after the occurrence of the incident.

      
      

      A "major incident" is defined at Rule 10A-5.01(18), Florida Administrative Code, as, inter alia,

      
      

      [r]unaways of residents who are likely to injure themselves or need medication or treatment on a regular basis for their well-being. Rule 10;-5.01(18)(b), Florida Administrative Code.

      
      

9. Concerning the first incident, the Department has proved by a preponderance of competent substantial evidence that the procedure utilized by the Center violated Rule 10A-5.06 (2), Florida Administrative Code, in that the disappearance of a resident on medication was not reported to the District Administrator or his designee within twenty-four hours of its occurrence.

   
   

10. As to the second incident which occurred on January 6, 1981, no testimony or other evidence was introduced to demonstrate that the resident who disappeared was either in need of medication or treatment or likely to injure himself. No evidence was presented to prove that the resident's heart attack was caused from a failure to take medication or any other reason other than natural causes. Accordingly, the Department failed to prove through the introduction of a preponderance of competent substantial evidence that a major incident occurred.

11. The Center's defense, that it was unware of the Rules governing the operation of ACLF's, and, therefore, should not be subjected to them in these proceedings is legally insufficient. Common sense requires that a person who operates a business largely funded through public monies and extensively regulated by the State would be charged with a duty of knowing all governmental regulations affecting the operation of such business.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department enter a final order assessing a $100.00 administrative fine for the failure to report a major incident which occurred on December 4, 1980 as alleged in the administrative complaint filed January 23, 1981, and dismiss the complaint filed February 27, 1981 which alleged a failure to report a major incident occurring on January 7, 1981.

DONE and ORDERED this 14th day of July, 1981, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1981.

COPIES FURNISHED:

Martha Barrera, Esquire Department of Health and

Rehabilitative Services 1320 South Dixie Highway Eleventh Floor

Coral Gables, Florida 33146

Nelson Rosenfield, Administrator Jubilee Retirement Center

8000 Biscayne Boulevard

Miami, Florida 33138

Docket for Case No: 81-000413

Orders for Case No: 81-000413