STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2595

) COLONIAL PALMS, INC., d/b/a ) COLONIAL PALMS NURSING HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on November 5, 1982, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Harold Braynon, Esquire

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

For Respondent: William L. Pace, in pro per

Administrator of Colonial Palms Nursing Home

51 West Sample Road

Pompano Beach, Florida 33064

By Administrative Complaint served on the Respondent by mail on July 30, 1981 [sic], the Department of Health and Rehabilitative Services notified the Colonial Palms Nursing Home that it intended to impose an administrative fine in the amount of $1,150.00 for four violations of the minimum standards for the operation of a nursing home set by Chapter 400, Part I, Florida Statutes, and rules promulgated thereunder. The matter was referred to this Division upon the Respondent's request for an administrative hearing dated August 26, 1982. At the hearing, the Petitioner presented testimony from one of its staff nurses and a dietitian both of whom had visited the Respondent nursing home for its annual license survey, together with two exhibits which were received in evidence. Two witnesses testified on behalf of the Respondent.

FINDINGS OF FACT

1. The Respondent, Colonial Palms, Inc., is licensed to operate Colonial Palms Nursing Home in Pompano Beach, Florida, as a nursing home facility, pursuant to Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code.

2. On December 15, 1981, two representatives from the Petitioner visited the Respondent's facility in connection with its annual license survey. On this occasion the following conditions were found which were in violation of the applicable provisions of the Florida Administrative Code.

   
   

   1. Supervision of all details of nursing care to patients was not being fulfilled by the Nursing Supervisor in that:

      The charge nurses were not monitoring the functions of the clean and soiled utility rooms, as evidenced by mixed clean and soiled functions in the rooms. Personal luggage of patients was stored in a soiled utility room, clean foam padding was stored on a shelf in a soiled utility room.

   2. Three weeks staffing was reviewed. There was no RN on duty during the AM shift on 4 out of 21 days, 11/22, 11/28, 11/29, 12/12/81,

      when the average census was 74 patients.

   3. Patients' rights were violated in 4 charts reviewed in that the patients were not advised

      of their full rights as promulgated by the 1980 Legislature.

   4. Written consultation reports from a consulting dietitian to the Administrator were not available for review for the months of April, May, June, July, 1981.

   5. The dietary department lacked the required test kit that measures the parts per million concentration of the sanitizing solution used

      to sanitize the patient trays, as well as the multi use pots and pans.

   6. The hood above the cook's range, the sprinkler system, and the electric lights were soiled with a grease encrustation.

   7. Medications being administered by the nursing staff consisted of controlled and prescription drugs which were not stored

      in locked cabinets, but were stored on side carts exposed and accessible to all patients.

   8. The soiled utility room in the south wing was not equipped with a flushing rim clinical service sink having a wide area service trap with bedpan flushing equipment.

      
      

3. The Respondent nursing home was given until January 15, 1982, to correct all of the conditions described above.

   
   

4. On February 8, 1982, a follow-up visit was made to the Respondent nursing home. On this occasion the conditions described above at subparagraphs (a), (c), (d) and (f) had been corrected. The conditions described at subparagraphs (b), (e), (g) and (h) above had not been corrected.

   
   

5. The flushing sink mentioned in subparagraph (h) above had been ordered from the nursing home's supplier on December 20, 1981. However, due to a delay in shipment, it was not received until July or August, 1982. It is now in place, as required.

6. The remainder of the conditions which existed on February 8, 1982, are now corrected.

   
   

   CONCLUSIONS OF LAW

   
   

7. The four conditions described in paragraph 2(b), (e), (g) and (h) above are Class III deficiencies pursuant to Section 400.23(4)(c), Florida Statutes, which provides:

   
   

   "Class III deficiencies are those which the department determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility patients, other than class I or II deficiencies. A class III deficiency shall be subject to a civil penalty of not less than $100

   and not exceeding $500 for each and every deficiency. A citation for a class III deficiency shall specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed, unless iii is a repeated offense."

   
   

8. The condition described in paragraph 2(b) above relative to nurse staffing is in violation of Section 10D-29.39(1), Florida Administrative Code, which requires at least one licensed nurse to be on duty during each A.M. shift for each 40 patients in the facility. Subsection (a) of this rule requires that at least one of the licensed nurses on the A.M. shift be a Registered Nurse.

   
   

9. The lack of a test kit in the dietary department, as described in paragraph 2(e) above, is in violation of Section 400.141(4), Florida Statutes, and Sections 10D-29.44(7) and 10D-13.26(5)(a), Florida Administrative Code, which require such a test kit.

   
   

10. The failure of the nursing home to store controlled substances and prescription drugs in a locked cabinet, as described in paragraph 2(g) above, is in violation of Sections 10D-29.38(10) and 10D-29.45(2)(b), Florida Administrative Code, which require the special safeguarding of such materials.

    
    

11. The lack of a flushing sink, as described in paragraph 2(h) above, is in violation of Section 10D-29.52(4)(21) (Table of Requirements), Florida Administrative Code, which specifically makes it necessary to have a flushing rim clinical service sink.

    
    

12. Section 400.23(4)(c), Florida Statutes, quoted above, establishes a minimum fine of $100 for each deficiency not corrected within the time specified. The Department in its notice advised the nursing home that it had until January 15, 1982, to make the necessary corrections. Four of the violations were not corrected by February 8, 1982, when the facility was inspected a second time. However, the nursing home administrator has been cooperative with Department personnel, and all of the deficiencies are now corrected. Further, the flushing sink was ordered in time to have been installed by February 8, 1982, when the facility was inspected the second time.

However, due to a delay in shipment which was beyond the control of the nursing home, it was not installed until the summer of 1982. Thus, the fine to be imposed should be the minimum of $100 for four violations on one occasion, which totals $400.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Colonial Palms, Inc., d/b/a Colonial Palms Nursing Home,

be found guilty of four separate violations on one occasion after the specified date for correction, and that Colonial Palms, Inc., be assessed an administrative fine in the amount of $400.00.

THIS RECOMMENDED ORDER entered on this 30 day of November, 1982, in Tallahassee, Florida.

WILLIAM B. THOMAS

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 30th day of November, 1982.

COPIES FURNISHED:

Harold Braynon, Esquire

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

William L. Pace Administrator of Colonial Palms Nursing Home

51 West Sample Road

Pompano Beach, Florida 33064

Docket for Case No: 82-002595

Orders for Case No: 82-002595