STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5434

)

ETC INVESTMENTS, INC., )

d/b/a TARPON SPRINGS CARE )

CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on January 25, 1989 in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Edward A. Haman, Esquire

7827 N. Dale Mabry Highway Tampa, Florida 33614

For Respondent: Elaine Chicles, pro se

President, ETC Investments, Inc. 1210 East Oakwood Street

Tarpon Springs, Florida 34689 BACKGROUND

Respondent operates an adult congregate living facility (ACLF) pursuant to a license issued and conditioned by Petitioner. Petitioner issued an administrative complaint setting forth its intent to impose a civil penalty of

$1,450 upon Respondent as a result of alleged violations by Respondent of requirements of Chapter 400 Florida Statutes, and provisions of Chapters 4A-40 and 10A-5, Florida Administrative Code. Respondent demanded a formal administrative hearing upon the charges set forth in the administrative complaint and this proceeding ensued.

At hearing, Petitioner presented the testimony of two witnesses and one evidentiary exhibit Respondent presented the testimony of two witnesses and two evidentiary exhibits. No proposed findings of fact were timely submitted by either party and none had been received at the time of the preparation of this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is the Department of Health and Rehabilitative Services.

   
   

2. Respondent is ETC Investments, Inc., licensed at all times pertinent to these proceedings to operate Tarpon Springs Care Center, an adult congregate living facility in Tarpon Springs, Florida.

   
   

3. Petitioner's employees conducted inspections of Respondent's facility on September 30, 1986; May 29, 1987; and June 30, 1987. As a result of these inspections, certain deficiencies were discovered. Dates for correction of the deficiencies were determined by Petitioner's employees. Respondent was informed of the correction deadlines. Upon subsequent inspections by Petitioner's employees, some of the deficiencies continued to exist.

   
   

4. On September 30, 1986, Petitioner's employees determined that Respondent did not have an admission and discharge record which was being properly maintained. Respondent was required to make available to Petitioner's representative by October 7, 1986, documentation indicating that a current register was being maintained. The deficiency remained uncorrected on May 29, 1987. The deficiency consisted of Respondent's failure to record the name of one resident on the facility's central log or register and a failure to note the discharge of three other residents in that register.

   
   

5. A required health assessment form was not present in the file of one resident in Respondent's facility on September 30, 1986; a correction deadline of October 30, 1986 was set. The required form was still not in the file as required on May 29, 1987.

   
   

6. On May 29, 1987, Respondent still had not provided proof of continuing liability insurance availability for Petitioner's review. This deficiency had been noted on September 30, 1986, with correction to be made by Respondent by October 30, 1986.

   
   

7. Respondent failed to provide evidence at the September 30, 1986 inspection that weights of two residents of the facility were recorded semiannually. The purpose of weight records is to assist in ascertaining if a resident has a health problem. This deficiency remained uncorrected on May 29, 1987, although, as a result of the September 30, 1986 inspection, correction had been required to be made by October 30, 1986.

   
   

8. On May 29, 1987, Respondent had not provided documentation for review by Petitioner's representative indicating that quarterly fire alarm tests were conducted; likewise, Respondent had not provided documentation indicating the performance of required smoke detector tests and inspections. These deficiencies were noted in the September 30, 1986 inspection. Documentation of testing in both instances was required to be made available by Respondent no later than October 30, 1986.

   
   

9. Respondent has been charged with failure to provide documentation of food service policies as a result of the September 30, 1986 inspection. However, in the absence of direct testimony, Petitioner exhibit number 1, alleged to be a statement of deficiencies issued by Petitioner, is not corroborative or credited with probative value as to existence of Respondent's failure to provide documentation of the facility's food service policies and procedures by the deadline of October 30, 1986. Further, testimony of

   Respondent's witness, that correction of this deficiency was overlooked during subsequent inspections by Petitioner's employees, is corroborated by the witness' provision of a copy of Respondent's policies dated October 3, 1986.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

11. The proof establishes that Respondent failed to provide documentation indicative of a currently maintained admission and discharge register for the facility. Such failure is a violation of Rule 10A-5.024(1)(a), Florida Administrative Code, and a class III violation prohibited by Section 400.419(3)(c), Florida Statutes. Respondent is guilty of a class III violation, as charged in paragraph (3)(a) of the administrative complaint, as a result of this deficiency. However, assessment of a $250 penalty for this violation, which involved a failure to record the name of one resident on the register or to note the discharge of three other residents, is too harsh in the absence of proof that such was a repeat offense. A civil penalty of $100 should be imposed for this violation.

    
    

12. Petitioner charges Respondent did not ensure that an admission criteria standard was met as evidenced by the fact that the absence of a required health assessment form for the file of one resident in the facility, noted in the September 30, 1986 inspection, continued on May 29 1987. Petitioner has proven this charge. Maintenance of such a form in the file of residents is required by Subsections 400.426(3) (4), and (5), Florida Statutes,

    and Rules 10A-5.0181(1)(a) (b) and (c) Florida Administrative Code. The present of this deficiency makes essential medical information on a particular resident nonavailable. Therefore, the deficiency indirectly or potentially threatens "the physical or emotional health, safety, or security of facility residents" as required by the definition of a class III violation set forth in Section 400.419(3)(c), Florida Statutes. Respondent is guilty of the class III violation charged in paragraph (3)(b) of the administrative complaint. The civil penalty of $100 sought by Petitioner should be imposed.

    
    

13. Petitioner did not offer direct evidence proving Respondent failed to provide documentation indicating that the facility had food service policies and procedures for providing for the nutritional care of residents. Respondent is not guilty of the class III violation charged in paragraph (3)(c) of the administrative complaint.

    
    

14. Respondent did not contest the allegation of the deficiency of failure to provide documentation indicating that the facility had continuing liability insurance. This deficiency is violative of Rule 10A-5.014(4)(a)4, Florida Administrative Code, and constitutes a class III violation as set forth in Section 400.419(3)(c), Florida Statutes. Respondent is guilty of the class III violation charged in paragraph (3)(d) of the administrative complaint. A civil penalty of $100 should be imposed for this offense.

    
    

15. Petitioner has charged that Respondent committed a class III violation as set forth in Section 400.419(3)(c), Florida Statutes, by failure to provide documentation indicating that the residents weights were recorded semiannually. Such a record is important to proper monitoring of the health of residents. Although this deficiency existed in regard to only two residents, such failure constitutes a violation of Rule 10A- 5.024(2)(b)3e, Florida Administrative Code.

    Respondent is guilty of the class III violation set forth in paragraph (3)(e) of the administrative complaint. This offense involved only two residents. A civil penalty of $100 should be imposed.

    
    

16. Petitioner also charges Respondent with commission of class III violations for failure to provide documentation that quarterly fire alarms tests were conducted and failure to document smoke detector inspections or tests. Respondent is guilty of these deficiencies which also are violative of Rule 4A- 40.017(3), Florida Administrative Code, and constitute class III violations as set forth in Section 400.419(3)(c), Florida Statutes. Respondent is guilty of the violations set forth in paragraphs (3)(f) and (3)(g) of the administrative complaint. The $250 civil penalty requested by Petitioner for each of these offenses should be imposed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the Department of Health and Rehabilitative Services enter a

final order finding the commission of six class III violations by Respondent and

assessing total civil penalties of $900 for such violations.

DONE AND ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1989.

COPIES FURNISHED:

Edward A. Haman, Esquire 7827 N. Dale Mabry Highway Tampa, Florida 33614

Elaine Chicles, pro se President, ETC Investments, Inc. 1210 East Oakwood Street

Tarpon Springs, Florida 34689

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO.: 88-5434

ETC INVESTMENTS, INC. d/b/a TARPON SPRINGS CARE CENTER,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

RULING ON EXCEPTIONS FILED BY HRS

Counsel correctly relies on Section 90.803(8), Florida Statutes for the admissibility of the department's inspection report. However, I decline to remand this case to the Division of Administrative Hearings for a reweighing of the evidence because the $900.00 fine recommended by the Hearing Officer is an appropriate sanction.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the ruling on the exceptions.

Based upon the foregoing, it is

ADJUDGED, that a fine of $900.00 be imposed on respondent, ETC Investments, Inc. d/b/a Tarpon Springs Care Center.

The fine shall be paid by check or money order payable to Treasurer, State of Florida, Department of HRS, Office of Licensure & Certification, Attn: Edward

A. Haman, 7827 North Dale Mabry, Tampa, Florida 33614. The fine shall be paid no later than 30 days from the entry of this Order.

DONE and ORDERED this 13th day of March, 1989, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Operations

COPIES FURNISHED:

Edward A. Haman, Esquire Senior Attorney

Office of Licensure 7827 North Dale Mabry Tampa, Florida 33614

Donna Schlau, pro se President, Heather Haven 725 Edgewater Drive

Dunedin, Florida 33528

Don W. Davis Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 17th day of March, 1989.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 88-005434

Orders for Case No: 88-005434