STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NINA VAN WERT, a/k/a NINA M. ) PORTER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1506

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 1, 1981, in Suite 605, Park Trammell Building, Tampa, Florida. The issue for determination at the hearing was whether petitioner is entitled to an adult congregate living facilities license.

APPEARANCES

For Petitioner: Robert A. Warner

Caltgirone & Warner, P.A.

238 East Davis Boulevard, Suite I Davis Island

Tampa, Florida 33606

For Respondent: Janice Sortor

District VI Assistant Legal Counsel 4000 West Buffalo Avenue

Tampa, Florida 33614 INTRODUCTION

By letter dated May 14, 1981, the respondent Department of Health and Rehabilitative Services notified petitioner Nina Van Wert, also known as Nina M. Porter, that her application for a license to operate an adult congregate living facility was being denied. The denial was based upon the grounds that she had exhibited a disregard for, and a failure to assume appropriate responsibility for, the welfare of residents under her care, as evidenced by four specific incidents. It was also alleged as a ground for denial that her facility was short one toilet and one sink, though she was informed that if that deficiency were corrected it would not be used as a basis for denial of her license application.

Petitioner timely requested an administrative hearing, contending that she is qualified for licensure. At the hearing, petitioner testified and also presented the testimony of Carmen Smith, the daughter of one of her former residents; her husband Bryan Van Wert; her father, Louis Wylie; and Alice Adler,

a program specialist with respondent's Aging and Adult Services Program Office. Joint Exhibits 1 through 5 were received into evidence.

Respondent presented the testimony of Dorothy Dexter and Nan Kirby with respondent's Aging and Adult Services Program Office, Nancy Wallenson and Noreen Hayes with respondent's Division of Adult Protective Services; Betty P. Steiger, who was accepted as an expert witness in the areas of geriatric nursing and evaluations of levels of care, Rodney Reder, a deputy with the Hillsborough County Sheriff's Office, and Alice P. Adler, who was accepted as an expert witness in the area of adult congregate living facilities licensing.

Respondent's Exhibits A, B and C were received into evidence.

Subsequent to the hearing, both parties submitted proposed recommended orders. To the extent that the proposed findings of fact are not contained in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing, immaterial or irrelevant to the issues for determination or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. On or about 1:00 p.m. on September 2, 1978, a Saturday, Deputy Reder from the Hillsborough County Sheriff's Office went to the "Sweet Magnolia Boarding Home," a licensed adult congregate living facility (ACLF) operated by the petitioner, as a result of a call from either the petitioner's daughter or a relative of one of the residents. Upon his arrival, Deputy Reder found four elderly boarders or residents, petitioner's, fifteen or sixteen year old daughter and her female friend of about the same age. The petitioner's daughter and the residents were upset, but none of the residents needed emergency medical assistance. The relatives of the residents and the respondent were notified that the four residents were without adult supervision, and the residents were removed from the facility that day.

   
   

2. On the Monday preceding Saturday, September 2, 1978, petitioner received a telephone call informing her that her husband had had an accident in Detroit, Michigan and had injured his back. Petitioner left Tampa on that day and flew to Detroit. It was her testimony that she left Mary Ann Cowley, who had worked for her for about one year, in charge of the "Sweet Magnolia Boarding Home" while she was gone. She further testified that she left approximately

   $700.00 with her fifteen or sixteen year old daughter to pay the rent and buy food for the residents during her absence. When she returned to the facility late Saturday night on September 2, 1978, no one was there and many of her belongings were gone. Petitioner did not contact the respondent regarding this incident. Her husband was not hospitalized for his back injury.

   
   

3. On or about September 22, 1978, an administrative complaint against petitioner was filed by the respondent seeking to revoke her ACLF license. Having failed to respond to the complaint, respondent, on October 18, 1978, entered a "Judgment of Revocation of License" by default. Said judgment found that petitioner voluntarily discontinued operation of the facility without providing advance notice to respondent and without surrendering her license, that she left residents boarded at the home without adult supervision while she left the state and that a deputy reported that there was no food in the premises on September 2, 1978, and that the residents had not been fed for two days.

   Deputy Reder did not check the premises for food and one of the boarder's daughter did not hear her mother complain of being hungry on the day she removed her from the petitioner's facility. Petitioner testified that she never received the administrative complaint or notice that her ACLF license had been revoked.

   
   

4. Petitioner applied for another ACLF license in March of 1980. Before this was processed, and in April of 1980, she was hospitalized for two or three days for elbow surgery and left her husband in charge of the unlicensed facility. Her husband had never assumed this responsibility in the past. On Monday, April 14, 1980, petitioner's husband prepared a bath for one of the residents who was approximately eighty-nine years old and frail, helped her into the bathtub and then left the bathroom to complete some chores in the kitchen. While he was gone, this elderly resident drowned in the bathtub. The incident was described in the police report as an "accidental death" and no charges were brought against petitioner or her husband.

   
   

5. Respondent was not notified of the drowning incident until several weeks later. During this same general time period, from March through early July, 1980, negotiations were had between petitioner and respondent regarding her March application for ACLF licensure. Respondent's Aging and Adult Services Program Office had many concerns regarding the issuance of a license to petitioner, including the prior incidents of lack of supervision, inappropriate placements and the drowning incident. Respondent did not feel that a legal basis existed for denial of petitioner's application for licensure, so they offered her a compromise. Petitioner was told that if she removed her present residents, respondent would issue her a license and she could start over with more appropriate residents or boarders. On June 25, 1980, petitioner notified respondent that it was her decision to discontinue her operation as a boarding home and not accept the license to operate as an ACLF. By letter dated June 26, 1980, respondent notified petitioner that she had thirty days to remove the residents from her facility and that legal action would be brought against her if she reopened another unlicensed facility in Hillsborough or Manatee Counties. By letter dated July 3, 1980, respondent again informed petitioner that her decision not to accept the license was considered as final and that a license could not be issued to her at that time.

   
   

6. On February 3, 1981, at approximately 3:00 p.m., employees of the respondent made an unannounced visit to petitioner's unlicensed facility. They found that petitioner was not on the premises and that the only people there were petitioner's father, approximately 70 years of age, and two elderly residents. One of the residents was in a hospital bed and was being fed by means of a tube down her throat. Respondent's employees remained on the premises for about 30 minutes and petitioner did not appear during this time.

   
   

7. During the time of the unannounced visit by respondent's employees, petitioner had gone to the store. It was her testimony, which was corroborated by her father, that she had asked another person to stay at the facility while she went to the store. That other person was not there when petitioner returned from the store.

   
   

8. Betty P. Steiger, R.N., who specializes in geriatric nursing, observed the tube-fed resident in petitioner's facility on February 4, 1981. She was described as an elderly black woman who was incontinent, unable to ambulate, incoherent and a candidate for round-the-clock skilled nursing care. An ACLF was not an appropriate placement for this person. Feeding tubes should be changed only by a registered nurse or a physician and a suction machine should

   be available in case of aspiration. Ms. Steiger did not observe a suction machine on the petitioner's premises. This tube-fed resident had been living in petitioner's facility for four or five months and had been tube-fed since her arrival. Petitioner is a licensed practical nurse. In February of 1981, she had no other employees.

   
   

9. Petitioner again applied for an ACLF license on March 5, 1981. By letter dated May 14, 1981, she was notified by the respondent's Aging and Adult Services Program Office that her application was being denied for the following reasons:

   
   

   1. You have exhibited a disregard for, and a failure to assume appropriate responsibility for, the welfare of residents under your care. This is evidenced by the following:

      
      

      1. On October 18, 1978, your license to operate "Sweet Magnolia Boarding Home", an adult congregate living facility, was formally revoked due to your having left the boarders at the facility without any adult supervision during or about September, 1978 while you

         left the state. When discovered on September 2, 1978, the residents had not been fed for two days and there was no food on the premises.

         
         

      2. In April, 1980, an elderly resident at your unlicensed facility at 822 Whatley Place, Tampa, Florida, drowned in the bathtub while not receiving proper supervision.

         
         

      3. On or about February 3, 1981, a resident at your home at 822 Whatley Place, Tampa, Florida, was discovered by the Department's employees to be bedridden and to be in need of full time skilled nursing care. Said resident was being fed through a tube and such condition, without appropriate full time skilled nursing care, materially affected the health, safety, and welfare

         of said resident in that had such resident regurgitated, this resident, being elderly and very debilitated, would have been unable to clear herself and would have "drowned" in her own bodily fluids. Your retention of this resident, without ap- propriate full time skilled nursing care, constituted a disregard for her welfare.

         
         

      4. On or about February 3, 1981, employees of the Department made an unannounced visit to your unlicensed facility and discovered that you were not present and that you had not provided for adequate supervision of the residents. Besides the residents, the only person present was your elderly father who, due to his age and physical condition, could

      not provide safe and adequate supervision to the residents.

      
      

   2. The actions referred to in paragraphs 1(a) through (d) constitute intentional and/or negligent acts which seriously affected the health, safety, and/or welfare of residents of your facility and constitute grounds to deny your application for a license pursuant to section 400.414(2)(a), Florida Statutes (1980).

      
      

   3. Your physical plant is short one toilet and one sink. According to Rule 10A-5.11(3)(a)1, Florida Administra- tive Code, there must be a bathroom exclusively for the use of the residents. Since you fail to meet the minimum standards for Adult Congregate Living Facilities, your license is being denied on that

      basis also.

      
      

10. The parties stipulated that petitioner's physical plant was short one bathroom. It was agreed that if all other bases for denial of the license were found to be without merit; petitioner would have 60 days to install a bathroom and, if completed, respondent would issue petitioner a license.

    
    

    CONCLUSIONS OF LAW

    
    

11. An adult congregate living facility is a facility which provides housing, food service and one or more other personal services for adults in need of such services. Other personal services provided at an ACLF include assistance with eating, bathing, grooming, dressing, ambulation, and securing health care; housekeeping; emotional security; supervision; companionship and arranging or provision of leisure activities. The essence of such a facility is the provision of housing, food and personal services to adults who, by reason of advanced age or physical condition, require such services. ACLF's are licensed and regulated through the authority of Florida Statutes, Chapter 400, Part II, and Florida Administrative Code, Chapter 10A-5.

    
    

12. An application for an ACLF license may be denied upon a finding of an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. Florida Statutes, s.400.414. The facts demonstrated in this proceeding illustrate a continued pattern on petitioner's behalf of disregard, and failure to assume appropriate responsibility, for the welfare of the residents under her care.

    
    

13. An applicant for a license has the burden of proving that he or she possesses all the necessary qualifications for licensure. The four incidents described in the findings of fact herein demonstrate a pattern of irresponsibility and undependability on petitioner's part which renders her unfit to hold a license to operate an adult congregate living facility.

    
    

14. Petitioner attempted to explain away the three incidents involving lack of supervision by asserting that she made arrangements for other persons to be in charge of her operation while she was away. With the exception of her husband, none of these other persons were called as witnesses, nor was any attempt made to establish the qualifications of these other persons to adequately and safely operate the facility and supervise and assist the elderly residents. Instead, the testimony indicates that two of the persons left in charge of the facility during petitioner's absence did not remain on the

    premises until petitioner's return and that her husband had no prior experience in supervising and assisting the residents in petitioner's absence. These incidents demonstrate petitioner's careless attitude toward her duties of supervision and assistance.

    
    

15. The fourth incident involving the retention for some four or five months of a bedridden, tube-fed resident is further indicative of petitioner's disregard for the health, safety and welfare of a resident. This person was in need of twenty-four hour a day skilled nursing care. At the time, petitioner had no other employees and could not possibly have provided the appropriate level of care necessary for this resident. As a licensed practical nurse and as a former ACLF license-holder, she should have realized that an ACLF was not an appropriate placement for this resident.

    
    

16. In summary, it is concluded that the facts surrounding the four incidents described herein are illustrative of intentional or negligent acts which seriously affect the health, safety or welfare of the facility's residents. Petitioner has failed to demonstrate her fitness to hold an ACLF license.

RECOMMENDATION

Based upon the above findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application for an adult congregate living facility license be DENIED.

Respectfully submitted and entered this 10th day of November, 1981, in Tallahassee, Florida.

DIANE D. TREMOR, 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 10th day of November, 1981.

COPIES FURNISHED:

Robert A. Warner, Esquire Caltgirone & Warner, P.A.

238 East Davis Boulevard, Suite I Davis Island

Tampa, Florida 33606

Janice Sortor, Esquire District VI Assistant Legal

Counsel

4000 West Buffalo Avenue Tampa, Florida 33614

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-001506

Orders for Case No: 81-001506