STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0307

) DARLINGTON CORPORATION, d/b/a ) DARLINGTON HOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on May 8, 1986, by Stephen F. Dean assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon an administrative complaint filed by the Department of Health and Rehabilitative Services against the Respondent, Darlington Corporation, alleging that Respondent had violated several provisions of Rule 10A-5, Florida Administrative Code. The Respondent made a timely request for a hearing pursuant to Section 120.57(1), Florida Statutes.

APPEARANCES

For Petitioner: Barbara McPherson, Esquire

District V Legal Counsel 2255 East Bay Drive Clearwater, Florida 33518

For Respondent: Scott L. Knox, Esquire

1017 Bartelt Road

Holiday, Florida 33590 ISSUES

Whether the Respondent violated Rule 10A-5.19(5)(d), Florida Administrative Code.

Whether the Respondent violated Rule 10A-5.20 or 5.24(1)(d)1,a, Florida Administrative Code.

Whether the Respondent violated Rule 10A-5.182(2)(d)1 and 2, Florida Administrative Code.

Both parties have submitted post-hearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Darlington House is an adult congregate living facility owned and operated by Darlington Corporation under a license issued by the Department of Health and Rehabilitative Services.

   
   

2. Darlington House has approximately five full-time residents and had five residents at all times relative to the events set forth in the administrative complaint.

   
   

3. On January 22, 1985, personnel of the Department of Health and Rehabilitative Services conducted an inspection of Darlington House. A report of that inspection contained the following annotation:

   
   

   Medications were being administered by an unlicensed employee as evidenced by the employee placing medication in a spoon and dispensing it to residents.

   
   

4. On March 6, 1985, the Department of Health and Rehabilitative Services issued a Notice of Deficiencies indicating that there was insufficient supervision of administration of medication.

   
   

5. On March 14, 1985, the Respondent responded to the notice of deficiency indicating that all medications would be administered by or under the supervision of a person who would be either licensed as a practical nurse or registered nurse.

   
   

6. On April 8, 1985, the Department conducted an inspection of Darlington House. A list of the deficiencies included the following entries.

   
   

   ACLF 28. The facility did not have job descriptions available for review.

   
   

   ACLF 55. The facility did not have food service policies and procedures providing for the nutritional care of the residents.

   
   

7. On July 31, 1985, the Petitioner conducted an inspection of Darlington House. Gail Stanback, the temporary employee on duty, was unable to produce written copies of the job descriptions and nutritional policies and procedures during that inspection. The inspector also found on the kitchen counter plastic cups containing medication which had been transferred from original storage containers into the plastic cups by a licensed nurse in preparation for giving the medication to the residents.

   
   

8. Darlington Corporation had written a job description for the position of the full time employee of Darlington House responsible for providing personal care to residents. This job description was located at the corporate offices of the corporation in Holiday, Florida, at the time of the agency's inspection. Similarly, Darlington Corporation had written policies and procedures pertaining to nutrition at Darlington House. At the time of the inspection, a copy of these policies and procedures was located at the corporate offices of Darlington House. Copies of the job description and policies and procedures for food service were received into evidence.

9. The report of inspection of the agency for April 8, 1985, does not reference any deficiency involving the supervision or administration of medication.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Respondent operates a licensed adult congregate living facility. The license under which the Respondent operates the adult congregate living facility is issued by the Petitioner which is charged with the licensure and regulation of such facilities. Pursuant to the provisions of Chapter 400, Florida Statutes, and Chapter 10A-5, Florida Administrative Code, the Petitioner is authorized to discipline licensees of such facilities. This Recommended Order is entered pursuant to the provisions of Chapter 120, Florida Statutes.

    
    

11. The Respondent is charged with violating Rule 10A-5.20 or 5.24, Florida Administrative Code, by failing to maintain written nutritional policies and procedures. Rule 10A-5.20, Florida Administrative Code, provides the facility will have written nutritional policies and procedures. Rule 10A-5.24 provides that these written policies and procedures will be accessible to the facility and to the department staff and maintained by the owner or administrator of the facility in a place, form and system ordinarily employed in good business practice. The evidence reflects that at the time of inspection, these policies and procedures could not be produced. The evidence further reflects that these policies and procedures were maintained at the corporate offices away from the licensed premises. This practice is contrary to the cited rules and constitutes violation thereof.

    
    

12. Darlington Corporation is alleged to have violated Rule 10A- 5.19(5)(d), Florida Administrative Code, which provides that the operator of a facility shall develop written job descriptions for staff who are responsible for providing personal care to residents. At the time of the inspection, Stanback could not produce a copy of these job descriptions. Evidence was received that these job descriptions existed and were kept at the corporate offices at the time of the inspection. This rule does not require that the facility have the job descriptions and Rule 10A-5.24 does not require this record to be kept on the premises. It was sufficient for the Respondent to develop the job descriptions and to maintain them in the corporate offices. There was no violation of Rule 10A-5.19(5)(d), Florida Administrative Code.

    
    

13. Lastly, the administrative complaint alleges a violation of Rule 10A- 5.182(3)(d)1, 2, Florida Administrative Code. The agency asserts that its inspector found medications on the kitchen counter in plastic cups and that this constitutes a failure to properly supervise the administration of medications to residents. Rule 10A-5.182(3)(d)1 and 2, Florida Administrative Code, provides as follows:

    
    

    1. The owner, administrator, staff, volunteer or third party contractor who is licensed to administer medications in accordance with Chapter 464, Florida Statutes, may administer medications in accordance with physician's direction.

       
       

    2. A licensed practical nurse may administer medications when under the direction of a registered nurse, a licensed physician, or a licensed dentist.

14. The placement of drugs in a medicine cup does not evidence any violation of the cited section. "Administer" is not defined by Rule 10A-5.182, Florida Administrative Code. Chapter 464, Florida Statutes, cited in said rule, does not define "administer." "Administer" is defined in Chapter 893, Drug Abuse Prevention and Control, Florida Statutes. Section 893.02(1) defines "administer" as "the direct application of a controlled substance."

    
    

15. Although there is no evidence that any of the medications found were controlled substances, if we accept the definition generally that "administer" means direct application, the discovery of the medications in the plastic cup is not evidence of administration. It is also noted that the placement of drugs in the medicine cup from the storage container does not constitute a violation of Rule 10A-5.182(3)(a)(6)(b), Florida Administrative Code, and is consistent with Rule 10A-5.182(3)(a)(8)(b), which permits preparation of paraphernalia for assisting residents in self-administration. There was no violation of Section 10A-5.182(3)(d)1 and 2, Florida Administrative Code.

RECOMMENDATION

Having found the Respondent guilty of failing to maintain on the premises as required by rule copies of its nutritional policies and procedures, contrary to Rule 10A-5.20, Florida Administrative Code, it is recommended that the Respondent be fined One Hundred Dollars ($100.00).

DONE AND ORDERED this 2nd day of June 1986 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 2nd day of May 1986.

APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0307

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. All of Petitioner's and Respondent's Proposed Findings of Fact were adopted except for the following:

Respondent's Proposed Findings of Fact:

5. Rejected; irrelevant.

12. Rejected; irrelevant.

Petitioner's Proposed Findings of Fact:

10. Rejected; conclusion of law.

COPIES FURNISHED:

Mr. William Page, Jr. Secretary

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32301

Steven W. Huff, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32301

Barbara McPherson, Esquire District V. Legal Counsel 2255 East Bay Drive Clearwater, Florida 33518

Scott L. Knox, Esquire 1017 Bartelt Road

Holiday, Florida 33590

Docket for Case No: 86-000307

Orders for Case No: 86-000307