Judges: J. D. PARRISH
Agency: Agency for Health Care Administration
Latest Update: Mar. 25, 1988
Summary: The central issue in this case is whether Miller is guilty of the violations alleged in the Administrative Complaint, and, if so, what penalty should be imposed.Respondent failed to meet rules by lack of: standardized recipes; disaster preparedness plan; contract deficiency; and appropriate written policies.
87-4770STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 87-4770
) ELSIE MILLER CONVALESCENT HOME, ) INC. d/b/a ELSIE MILLER MANOR, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing in the above-styled matter was held on February 23, 1988, at Vero Beach, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:
APPEARANCES
For Petitioner: Leonard T. Helfand
401 North West 2nd Avenue North Tower Suite 526 Miami, Florida 33128
For Respondent: Charles E. Garris
2205 14th Avenue
Vero Beach, Florida 32960 BACKGROUND AND PROCEDURAL MATTERS
This case began on October 5, 1987, when the Department of Health and Rehabilitative Services (Department) filed an Administrative Complaint against Ernest J. Miller, Jr. d/b/a Elsie Miller Convalescent Home. The correct name for the facility is Elsie Miller Convalescent Home, Inc. d/b/a Elsie Miller Manor. Consequently, the style of this case has been amended, by stipulation of the parties, to state the proper Respondent (Miller). On October 22, 1987, Miller filed a petition for formal hearing which denied the alleged violations and requested a formal hearing. On October 28, 1987, the case was forwarded to the Division of Administrative Hearings for formal proceedings.
The Administrative Complaint alleged nine class III deficiencies and one unclassified deficiency which Miller reportedly failed to correct, all in violation of Section 400.419, Florida Statutes. The claimed deficiencies included: failure to maintain and keep accessible a written Disaster Preparedness Plan for general emergency care and for emergency care during an internal or external disaster which includes a hurricane preparedness plan; failure to assure that the staff was free of communicable disease; failure to provide, in resident contracts, a refund policy to apply upon closure of the
facility which included proration of charges as of closure date and refund for advance payment for services within 7 days of closure; failure to have policies and procedures for assisting residents in making appointments or providing transportation to medical, dental, nursing or mental health services as required by the residents; failure to maintain written policies and procedures for providing proper nutritional care; failure to participate in continuing in- service education on an annual basis at a minimum by the person responsible for total food service; failure to keep on file physician's orders, meal pattern, including types and amounts of food to be served for therapeutic diet service and failure to serve therapeutic diets as ordered; failure to offer a variety of foods adapted to the food habits, preferences and physical abilities of the residents and prepared by the use of standardized recipes; failure to date and plan menus at least one week in advance; and allowing a direct opening between the living quarters of a resident and the dining room.
At the hearing the Department presented the testimony of James Valinoti and Petitioner's Exhibits 1, 2, and 3 which were admitted into evidence. Respondent presented the testimony of Susan Miller and Ernest J. Miller, Jr. together with Respondent's Exhibit 1 which was admitted into evidence. Respondent was granted leave until March 4, 1988, to file portions of a diet manual relating to the nutritional value of foods offered by Miller. Such exhibit was not filed and has not been considered in the preparation of this Recommended Order. No transcript of the proceedings was filed.
After the hearing the parties filed proposed findings of fact and conclusions of law. Specific rulings on the proposed findings of fact are included in the attached Appendix.
ISSUE
The central issue in this case is whether Miller is guilty of the violations alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
FINDINGS OF FACT
Based upon the testimony of the witnesses and documentary evidence received at the hearing, I make the following findings of fact:
At all times material to this case, Respondent has been licensed by the Department to operate an adult congregate living facility (ACLF) which is located at 1914 21st Street, Vero Beach, Florida and which has twenty-four residents.
James Valinoti is a program analyst employed by the Department. As a part of his job duties, Mr. Valinoti performs surveys to determine whether or not an ACLF is in compliance with Department regulations.
On or about February 4, 1986, Mr. Valinoti visited the Miller ACLF to perform a survey. Mr. Valinoti went unannounced to the facility and asked to see the administrator in charge. The facility and its records were inspected.
Mr. Valinoti asked to see the Respondent's Disaster Preparedness Plan. The administrator in charge was unable to readily locate it but did so eventually. The plan provided to Mr. Valinoti on February 4, 1986, dealt only with hurricane preparedness.
As of February 4, 1986, Respondent's employee records did not have current written statements from physicians to verify the employees were free of communicable disease.
The residential contracts utilized by Respondent on February 4, 1986, did not contain a refund policy in the event of the closure of the Miller ACLF.
Respondent did not have a written policy and procedure for assisting residents in making appointments or providing transportation to medical, dental, nursing or mental health services on February 4, 1986. The Respondent has had an unwritten agreement with its residents to provide such assistance and transportation at no additional charge. Respondent uses a daily appointment book to schedule and to monitor the residents' services needs.
Respondent did not maintain written policies, specific to the Miller ACLF, for providing proper nutritional care. Respondent utilized several general reference guides with regard to nutrition.
The Miller ACLF employs a cook who is responsible for preparing food, and an administrator responsible for ordering food. Susan Miller and Ernest J. Miller, Jr. claimed that they were the ones responsible for total food service. The Millers attended a food service seminar conducted by the Indian River County Health Department. As of February 4, 1986, no Miller employee had attended the food service educational seminar conducted by the Department.
The Department offers an in-service seminar which covers all aspects of food service from hygiene to nutrition. It is the Department's position that attendance of this course is required.
The Miller ACLF offers therapeutic diets as may be ordered by a resident's physician. As may be appropriate, information regarding a resident's dietary restrictions are kept in the resident's file.
The Miller ACLF offers a variety of foods. The foods are prepared by a cook who has considerable experience. Recipes are available in the kitchen area but whether or not they are used by the cook and whether they are appropriate was not established. There is no evidence in the record to determine whether the foods prepared are adapted to the habits, preferences and physical abilities of the residents.
Menus are prepared and used in cycles. The menus are rotated and cross-referenced on a calendar to reflect which week a specific menu will be used.
The southeast corner bedroom of the Miller ACLF has a window which opens into the dining room.
On February 27, 1986, the Department wrote to Miller to cite deficiencies found during the survey conducted on February 4, 1986. This letter was received by Miller on or about March 15, 1986.
Of the twenty-three deficiencies originally cited by the Department in this notice dated February 27, 1986, Miller corrected thirteen.
On June 26, 1986, Mr. Valinoti revisited the Miller ACLF to perform a follow-up survey. The facts as set forth above correctly describe the facility and conditions material to this case as of the follow-up visit.
Subsequent to the follow-up survey, Susan Miller and Ernest J. Miller, Jr. attended the food service educational program offered by the Department.
Subsequent to the follow-up survey, the Miller ACLF required its employees to obtain letters from doctors stating the employee was free of communicable disease.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Chapter 400, Florida Statutes, governs the operation of adult congregation living facilities.
Section 400.419, Florida Statutes, authorizes the Department to take action against any facility found to be in violation of the standards promulgated under the Chapter. Any action by the facility to correct a violation must be documented and verified at the follow-up visit conducted by the Department.
A class III violation is subject to a penalty of not less than $100 and may not exceed $500 for each violation. If a class III violation is corrected within the time given, no penalty may be imposed, unless it is a repeated offense. In the case at issue the Department has not claimed the deficiencies cited to be repeat offenses.
An unclassified violation is subject to a penalty up to $500.
Section 400.419(2), Florida Statutes, provides, in pertinent part:
In determining if a penalty is to be imposed and in fixing the amount of the penalty to be imposed, if any, for a violation, the department shall consider the following factors:
The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or rules were violated.
Actions taken by the owner or administrator to correct violations.
Any previous violations.
The financial benefit to the facility of committing or continuing the violation.
Rule 10A-5.024(1)(a)8, Florida Administrative Code, provides:
Each facility shall have a written Disaster Preparedness Plan to be followed for general emergency care and for emergency care during an internal or external disaster which shall include a hurricane preparedness plan. The Plan shall be reviewed for approval or disapproval by the local disaster preparedness authority. The Plan shall be located for immediate access by facility staff.
Under the facts of this case, Respondent is in violation for failure to have a written Disaster Preparedness Plan which complied with the cited rule. On both visits, the Respondent's staff was unable to locate for immediate access the required plan. Moreover, the plan submitted for review only addressed a hurricane contingency and did not provide for emergency care during an internal or external disaster. Respondent's oral assurance that such a plan exists cannot refute the simple fact that, to date, a written plan has not been offered for review by the Department. Consequently, it is found that the Miller ACLF is in violation of the rule, as charged in paragraph (3)(a) of the Administrative Complaint.
Rule 10A-5.019(5)(a)1(g), Florida Administrative Code, requires the administrator of a facility to:
Assure that the staff is mentally and physically capable of performing their assigned duties, and are free of communicable diseases. If any staff member is found to have, or is suspected of having a communicable disease, or is mentally or physically incapable of performing his duties, he shall be removed from duties until the administrator determines that such
risk or deficiency no longer exists.
In the case at issue, the administrator required TB tests of employees. The administrator now requires that employees obtain written statements from doctors certifying they are free of communicable disease. "Communicable disease" is not defined by this rule. Additionally, the rule does not specify how an Administrator is to give assurance the staff members are free of communicable disease. By simply reading the rule, an administrator cannot foresee that written assurance is necessary. The rule intends that an administrator assure that employees do not bring readily transmittable ills to an ACLF. The Department has not determined how often staff members should be examined or what ills are "communicable". In light of the indefiniteness of the rule, I am unable to conclude this administrator has failed to assure the employees of the Miller ACLF are free of communicable disease.
Rule 10A-5.024(1)(b)1.g., Florida Administrative Code, requires that resident contracts contain a:
Refund policy to apply when transfer of ownership, closing of facility, or resident discharge occurs. Refund policies for advance payments shall include a statement that residents will receive a 100 percent refund with a
30 day notice. Reimbursement shall occur within 35 days of a legitimate claim. This refund policy does not apply to ACLF facilities that are part of continuing care retirement communities licensed under Chapter 651, F.S., which sets forth provisions for refunds.
From the record in this cause, it is clear that Respondent's resident contract did not contain the required refund information. The new contracts may have the required policy statement. Respondent is responsible for assuring all contracts have the necessary language. Accordingly, I find the Respondent in violation of the rule as alleged in paragraph (3)(c) of the Administrative Complaint.
Rule 10A-5.0182, Florida Administrative Code, provides:
Each facility shall have policies and procedures for assisting residents in the making of appointments to appropriate medical, dental, nursing, or mental health services, as required by the resident.
Each facility shall also have policies and procedures for providing transportation to and from the services above. Transportation may either be provided by the facility or arranged for through appropriate transportation providers such as taxi cabs, wheel chair vans, and mini buses.
Respondent does have an informal, unwritten policy to provide assistance and transportation for residents pursuant to the rule. There is no proof that Respondent fails to provide the services. The Department's policy requiring written procedures is not specified by the rule. Arguably, written policies and procedures assure uniform and consistent administration. While the better business practice might encourage written policies, the rule in this instance does not. Consequently, no penalty may be imposed.
Rule 10-A-5.024(1)(d)1.a., Florida Administrative Code, requires facilities with a licensed capacity of thirteen or more residents to maintain:
Written policies and procedures for providing proper nutritional care, whether provided by the facility or third party.
35 In this instance, the rule clearly specifies written policies. As a twenty-four resident facility, the Miller ACLF is required to comply with the rule. Testimony suggesting Respondent utilizes various reference materials does not establish it has written policies and procedures specific to this ACLF. Respondent is required to maintain written records showing its policy. It has failed to do so. Consequently, Respondent is guilty of the violation alleged in paragraph (3)(e) of the Administrative Complaint.
Rule 10A-5.020(1), Florida Administrative Code, provides:
When food service is provided by the facility the following requirements shall be met:
* * *
(c) The person designated by the administrator shall perform his duties in a safe and sanitary manner, be knowledgeable of foods that meet regular diets, and participate in continuing in- service education on an annual basis at a minimum.
Susan Miller and Ernest J. Miller, Jr. have attended the Department's in-service education course. Although they attended after the June revisit, they have met the Department's requirement. Additionally, they attended a County sponsored in-service course prior to the June revisit. The rule does not specify that only the Department's course is acceptable. The notice to the Respondent did not specify that only the Department's course would qualify for the required in-service training. Most significant is that there is no proof that the Department's in-service training was even offered during the time between visits to the Miller ACLF. Given the uncertainty of the rule and Respondent's efforts to comply, no sanction should be imposed.
Rule 10A-5.020(1), Florida Administrative Code, provides:
When food service is provided by the facility the following requirements shall be met:
* * *
(e) When therapeutic diet service is provided, a physician's order of
each diet and the meal pattern including types and amounts of food to be served shall be on file.
Therapeutic diets shall be prepared and served as ordered by the physician.
Respondent offers therapeutic diet service as may be ordered by a resident's physician. The policy of the Miller ACLF is to keep the physician's order on file. Apparently in reviewing the files Mr. Valinoti did not observe any physician orders. In this instance, the absence of a record does not establish a violation since only existing physician orders must be retained. From the record in this case, I am unable to conclude Respondent failed to keep a required record.
Rule 10A-5.020(1), Florida Administrative Code, provides:
When food service is provided by the facility the following requirements shall be met:
* * *
(g) The dietary allowances shall be met by offering a variety of foods adapted to the food habits, preferences and physical abilities of the residents and prepared by the use of standardized recipes.
The issue regarding food preparation is simply that Respondent does not use standardized recipes. Respondent's witnesses admitted that the cook uses recipes from "his head" and may use a series of recipes on file in a box. This alleged box of recipes was not showed to Mr. Valinoti during his visits. Standardized recipes assure consistent food preparation. The rule requiring the use of standardized recipes in food preparation is clear. The Department has established the Miller ACLF failed to comply with this rule.
Rule 10A-5.020(1), Florida Administrative Code, provides:
When food service is provided by the facility the following requirements shall be met:
* * *
(j) Dated menus shall be planned at least one week in advance for regular and therapeutic diets; posted where easily viewed by residents; and corrected as served and kept on file for six months.
The Department has claimed Respondent failed to plan menus at least one week in advance and then date them. In fact, the Miller ACLF uses the same menus over and over and rotates them for a period of seven weeks. The menus are cross-marked on an adjacent calendar so that on any given date a viewer may check the menu and calendar to verify which meal is to be served. Respondent has met the requirements of the rule.
Rule 10D-13.028(7), Florida Administrative Code, provides:
Living Quarters - None of the operations connected with a food service establishment shall be conducted in any room used as living or sleeping quarters. There shall be no direct opening between
living quarters and a food service establishment. Infants and children shall not be permitted in food preparation areas.
"Food Service Establishment" is defind in Rule 10D-13.022(7), Florida Administrative Code, as:
Any place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether consumption is on or off the premises and regardless of whether there is a charge for the food.
The term also includes delicatessen-type operations that prepare sandwiches, salads, and other food intended for individual
service. The term does not include private homes where food is prepared or served for individual family consumption.
Under the facts of this case, the window in the resident's room does not open to an area where food is prepared. There is no evidence that the dining area adjacent to the window is "the site at which individual portions are provided." Consequently, no violation is found.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Department enter a Final Order finding the Respondent in violation of paragraphs (3)(a), (c), (e), and (h) of the Administrative Complaint, imposing an administrative fine in the amount of $600 ($150 per violation), and dismissing all other claimed deficiencies.
DONE and RECOMMENDED this 25th day of March, 1988, in Tallahassee, Florida.
JOYOUS D. PARRISH
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 25th day of March, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4770
Rulings on proposed findings of fact submitted by Petitioner:
Paragraph 1 is accepted as addressed in finding of fact paragraphs 4 and 17.
Paragraph 2 is accepted to the facts set forth but is insufficient, as a matter of law, to establish a violation.
Paragraph 3 is accepted.
Paragraph 4 is rejected as commentary or argument without an appropriate factual basis.
Paragraph 5 is accepted as to the facts.
Paragraph 6 is accepted as to facts but, again, as a matter of law, is insufficient.
Paragraph 7 is rejected for the reasons explained in the conclusions of
law.
Paragraph 8 is rejected as argumentative.
Paragraph 9 is rejected as contrary to the evidence presented.
Paragraph 10 is accepted to the extent the parties agree the window
exists.
Rulings on Respondent's proposed findings of fact:
Paragraph 1 is accepted.
Paragraph 2 is rejected as contrary to the weight of the evidence presented.
Paragraph 3 is accepted.
Paragraph 4 is rejected as contrary to the weight of the evidence presented.
Paragraph 5 is accepted.
Paragraph 6 is rejected as contrary to the weight of the evidence presented.
Paragraph 7 is accepted.
Paragraph 8 is accepted.
Paragraph 9 is rejected as contrary to the weight of evidence presented.
Paragraph 10 is accepted.
Paragraph 11 is accepted.
COPIES FURNISHED:
Leonard T. Helfand, Esquire
401 North West 2nd Avenue North Tower Suite 526 Miami, Florida 33128
Charles E. Garris, Esquire 2205 14th Avenue
Vero Beach, Florida 32960
Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Docket for Case No: 87-004770
Orders for Case No: 87-004770
| Issue Date |
Document |
Summary |
|
Apr. 15, 1988 |
Agency Final Order
|
|
|
Mar. 25, 1988 |
Recommended Order
|
Respondent failed to meet rules by lack of: standardized recipes; disaster preparedness plan; contract deficiency; and appropriate written policies.
|
