STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MADELINE SMITH, d/b/a MADELINE )

L. SMITH BOARDING HOME, )

)

Petitioner, )

)

vs. ) Case No. 85-3995

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on April 21 and-22, 1986, in Hollywood, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane

1. Kiesling.

   
   

   APPEARANCES

   
   

   For Petitioner: James A. Pearson, Esquire

   2435 Hollywood Boulevard Suite 205

   Hollywood, Florida 33020

   
   

   For Respondent: Dennis E. Berger, Esquire

   Office of Licensure and Certification 5190 N. W. 167th Street, Suite 210 Miami, Florida 33014

   
   

   ISSUES

   
   

   The issue is whether Petitioner, Madeline Smith, d/b/a Madeline L. Smith Boarding Home, (Smith) is entitled to relicensure as an Adult Congregate Living Facility (ACLF) or should be denied relicensure based upon intentional or negligent acts which seriously affect the health, safety or welfare of a resident or residents of the ACLF, as more particularly stated in the denial letter dated September 26, 1985. Petitioner presented the testimony of Madeline Smith, E'Lona Hogan, Carlos Martinez, Jo Ann Brooks, John Wade, Stephen Noulin, John Noulin

   and Dorothy Kaplan. Petitioner's Exhibits 1-16, 18-20, and 24 were admitted in evidence. Respondent, the Department of Health and Rehabilitative Services (DHRS), presented the testimony of James Valinoti, Phillip Drabick, Paul Grassi and Elizabeth Baller, together with Respondent's Exhibits 1, 2 and 4 which were admitted in evidence.

   
   

   The transcript of these proceedings was filed on June 19, 1986. The parties were to file proposed orders within 30 days of the filing of the transcript. On July 10, 1986, Petitioner filed a Motion for Extension of Time, requesting until after August 4, 1986, to file a proposed order. The motion was granted by order dated July 15, 1986, wherein the parties were granted to and including August 15, 1986, to file their proposed orders. Respondent filed its proposed recommended order on August 18, 1986. To date Petitioner has failed to file a proposed order. Accordingly, this Recommended Order is entered without reference to or consideration of a proposed order by Petitioner. All proposed findings of fact and conclusions of law filed by Respondent have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part hereof.

   
   

   FINDING OF FACT

   
   

   1. Petitioner, Madeline Smith, d/b/a Madeline L. Smith Boarding Home (Smith), is an Adult Congregate Living Facility (ACLF) located at 2001 N. 22nd Avenue, Hollywood, Florida. The facility has been in existence and licensed since November, 1983. On approximately August 6, 1985, Smith filed an application to renew her license. By letter dated September 26, 1985, DHRS advised Smith that the renewal application was denied based upon 32 violations and deficiencies, many of which had not been corrected despite previous deficiency notices. For these reasons, DHRS determined that Smith had engaged in intentional or negligent acts seriously affecting the health, safety, or welfare of a resident or residents of the facility. It is this denial which is at issue in these proceedings.

      
      

   2. Inspectors from DHRS Office of Licensure and Certification made inspections at the Smith facility on November 6, 1984, January 30, 1985, May 13, 1985, September 4, 1985, and April 3, 1986.

      
      

   3. During the November 6, 1984, inspection, a number of deficiencies and violations were found. Upon subsequent inspections, a number of these deficiencies were uncorrected.

      The following is a list of the deficiencies and the dates they were corrected, with the statutory o~ rule violation in parentheses.

      
      

      1. The number of residents exceeded the licensed capacity. (Section 400.407(3) and Rule 10A-5.16(1)(d)). This violation was not corrected. On May 13, 1985, there were 10 residents, on September 3, 1985, there were eleven residents, and on April 3, 1986, there were sixteen residents. Smith was only licensed for

         8 residents.

         
         

      2. Failure to maintain a current admission and discharge record of all residents. (Rule 10A-5.24(1)(a)1a and b). This deficiency was not corrected on any subsequent inspection.

         
         

      3. Services delivered by a third party contractor were not documented and placed in each resident's record. (Rule 10A- 5.24(1)(a)4). This deficiency was corrected by January 30, 1985, but was again lacking on September 4, 1985. It was corrected on April 3, 1986.

         
         

      4. Failure to maintain an adequate accident/incident report. (Rule 10A-5.24(1)(a)2). This violation was not corrected on January 30, 1985, but was corrected on May 13, 1985.

         
         

      5. Failure to keep a daily record for residents who receive supervision of self-administered medications. (Rule 10A-5.24(1)(a)3). This deficiency was not corrected on any subsequent inspection.

         
         

      6. Failure to maintain a written work schedule for all employees. (Rule lOA-5.24(1)(a)6). This deficiency was never corrected.

         
         

      7. Failure to maintain time sheets for all employees. (Rule lOA-5.24(1)(a)7). This deficiency was finally corrected on the April 3, 1936, inspection.

         
         

      8. Failure to have a written Disaster Preparedness Plan. (Rule lOA-5.24(1)(a)8). This deficiency was finally corrected on April 3, 1986.

         
         

      9. Failure to have a staff member certified in an approved first aid course within the facility at all times. (Rule lOA- 5.19(5)(a)1e). This deficiency was never corrected.

      10. Failure to maintain a record of personnel policies and work assignment for each position. (Rule lOA-5.24(1)(a)5). This deficiency was never corrected.

          
          

      11. Failure to have documentation from a physician that all staff are free of communicable diseases. (Rule lOA-5.19(5)(g)). This deficiency was finally corrected on April 3, 1986.

          
          

          1. Failure to have all residents covered by a contract and to have a copy of the contract in the resident's file.

(Sections 400.402(10) and 400.424(1)). This was corrected on January 30, 1985, but was again lacking on September 3, 1985. It was corrected on April 3, 1986.

1. Failure to have written job descriptions for all staff who are responsible for personal care of residents (Rule lOA- 5.19(5)(d)). This deficiency was finally corrected on April 3, 1986.

   
   

2. Failure to have residents examined by a physician or licensed nurse practitioner within 60 days before admission or within 30 days following admission and to have a completed, signed health assessment ACLF form in the residents' files. (Section 400.426(3)(4) and (5) and Rule lOA-5.181(1)(a) and (c)). This was not fully corrected until April 3, 1986.

   
   

3. Full bedside rails are used. (Rule lOA-5.182(2)). This violation was never corrected.

   
   

4. Failure to have policies or procedures to insure social and leisure services at the minimum hourly level required.

   (Rule lOA-5.182(7)(a)). This was finally corrected on April 3, 1986.-

   
   

5. Failure to have policies or procedures for assisting residents in making and keeping appointments for medical, dental, nursing or mental health services. (Rule 10-5.182(8) and (9)). This was finally corrected on April 3, 1986.

   
   

6. Failure to have food service policies and procedures for providing proper nutritional care of the residents. (Rules lOA-5.20 and lOA-5.24(1)(d)1a). This was finally corrected on April 3, 1986.

   
   

7. Failure to have an up-to-date diet manual. (Rule lOA- 5.20(1)(i)). This was corrected by September 3, 1985.

8. Menus were not dated, planned one week in advance, posted, corrected as served or kept on file for 6 months. (Rule lOA-5.20(1)(j)). These were corrected by April 3, 1986.

   
   

9. The refrigerators needed thermometers (Rule lOA- 5.20(1)(n)11). This was corrected by January 30, 1985.

   
   

10. No management person had completed the Food Service Management Course. (Rule lOA-5.20(1)(n)16). This deficiency was never corrected.

    
    

11. Certain bathrooms were not ventilated. (Rule lOA- 5.23(9)). This was corrected on January 30, 1985.

    
    

12. Mattresses and bed frames were improperly stored in the laundry room. (Rule lOA-5.22(1)(1)). This was corrected on January 30, 1985.

    
    

13. The interior finish in the means of egress was not of proper material. This was corrected on September 3, 1985.

    
    

14. Improper use of extension cords. This was corrected one May 13, 1985.

aa. One means of egress was obstructed. This was corrected on January 30, 1985.

bb. Waste containers were not UL approved. (Rule 4A- 40.12). This was corrected on May 13, 1985.

dd. A storage area lacked a self-closing, positive- latching solid core door. This deficiency was finally corrected on April 3, 1986.

ee. Fire drills were not conducted and documented on a monthly basis with full evacuation quarterly. (Rule 4A-40.13). This was never fully corrected, but Smith made great progress toward complete correction.

1. Additionally, new deficiencies were found during the September 4, 1985, inspection, which was conducted as part of the license renewal process. These new deficiencies include:

   1. Failure to furnish each staff member with written policies governing conditions of employment and work assignment for this position. (Rule 10A-5.19(5)(h)). This was corrected on April 3, 1986.

      
      

   2. There was at least one resident that was confined to bed, which is not permitted in an ACLF. (Rule 10A-5.181(3)). This violation was not corrected in April 3, 1985.

      
      

   3. Prescription medication was not taken with a resident upon terminating residence, or given to a relative or guardian, or given to a pharmacist to destroy. (Rule 10A-5.182(3)(a)7). This was a one-time incident and was corrected.

      
      

   4. There was not a physician's order for each therapeutic meal. This was corrected by April 3,1986.

      
      

   5. The meal pattern, including types of food to be served was not on file. This was not corrected.

      
      

   6. Diets were not served as ordered. This was not corrected on April 3, 1986.

      
      

   7. Dietary allowances were not met by offering a variety of foods adapted to food habits, preferences and physical abilities of the residents and prepared by the use of standardized recipes. (Rule 10A-5.20(1)(g)). This was not corrected on April 3, 1986.

      
      

   8. There was a dog in the kitchen. (Rule 10A-5.20(1) and (7)). This was corrected.

      
      

   9. Food service employees did not effectively restrain their hair. (Rule 10A-5.20(1)(n)17). This was corrected.

      
      

   10. Roaches were seen. (Rule 10A-5.22(1)(f)). While roaches were again seen on April 3, 1986, Smith has made all reasonable efforts, including contracting with Orkin.

       
       

   11. A commercial range hood which is vented to the outside and provided with a automatic extinguishing system was not in place. (Rule 4A-40.10). While this was not entirely corrected on April 3, 1986, Smith had contracted with a company to install the necessary hood, which was installed, but needed electrical work to be completed.

2. In March 1986, Smith hired E'Lona Hogan to manage the facility. Apparently through Hogan's efforts, many of the deficiencies were finally corrected or in the process of correction by April 6, 1986. However, multiple serious violations existed in September, 1985, when renewal was sought and denied.

   
   

3. Despite Smith's testimony to the contrary, it is found that the deficiencies documented by DHRS during its inspections did exist. It is also found that these deficiencies were violations of applicable statutes or rules.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

5. Smith must have a license to operate an ACLF. Sections 400.402(2), 400.404(1), and 400.407(1)(a) Florida Statutes.

   
   

6. The Department of Health and Rehabilitative Services may deny licensure based on intentional or negligent acts seriously affecting the health, safety or welfare of residents in an ACLF. Section 400.414(1) and (2), Florida Statutes.

   
   

7. Section 400.417(1), Florida Statutes, states that as condition of renewal of licensure, an application for renewal must be filed and the applicant must meet the requirements of Chapter 400, Part II,and all rules promulgated thereunder.

   
   

8. In the present case, Smith has clearly and repeatedly violated both statutes and rules. These violations have occurred over a-period of more than one year and at least five . inspections. Because of these violations, Smith's application for license renewal fails to meet the requirements of Chapter 400, Part II, and the rules promulgated thereunder.

   
   

9. Furthermore, some of the more serious repeated violations are ones which affect or could affect the health, safety and welfare of the residents. Included within this type of violation are exceeding licensed capacity; failure to keep current admission and discharge records; failure to keep daily records of self-administered medications; failure to have a staff person trained in first aid on the premises at all times; lack of documentation that staff are free of communicable diseases; incomplete job descriptions; failure to have and

maintain current health assessments of all residents; keeping a resident who was confined to bed; the various meal and dietary violations; and failure to have or follow fire drills and a Disaster Preparedness Plans. While these are not all the violations which could affect the health of residents, these violations show that Smith violated Section 400.414(1) and (2).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order DENYING renewal of the ACLF license of the Madeline L. Smith Boarding Home.

DONE and ORDERED this 15th day of September, 1986, in Tallahassee, Florida.

DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1986.

COPIES FURNISHED:

James A. Pearson, Esquire 2435 Hollywood Boulevard

Hollywood, Florida 33020

Dennis Berger, Esquire Office of Licensure and

Certification

5190 N. W. 167 Street

Miami, Florida 33014

William Page, Jr., Esquire Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

APPENDIX

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case.

Rulings on Respondent's Proposed Findings of Fact.

Each and every proposed finding of fact of Respondent is adopted in substance in Findings of Fact 1, 2, 3, and 4.

Docket for Case No: 85-003995

Orders for Case No: 85-003995