STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2238

)

EVENTIDE HOMES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on June 22, 1989, in Clearwater, Florida.

APPEARANCES

For Petitioner: Edward A. Haman, Esquire

Office of Licensure and Certification Department of Health and

Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614

For Respondent: James Schwartz, Esquire

416 Drew Street Clearwater, Florida 34615

STATEMENT OF THE ISSUES

Whether the Respondent, Eventide Homes, Inc., should pay a fine of $800.00 for violations of the minimum resident care standards for Adult Congregate Living Facilities set forth in Rule 10A-5.0182, Florida Administrative Code.

PRELIMINARY STATEMENT

Petitioner, Department of Health and Rehabilitative Services (hereinafter the Department), filed an Administrative Complaint alleging that Respondent, Eventide Homes, Inc. (hereinafter Eventide), violated minimum licensing standards for an Adult Congregate Living Facility in the following manner: by failing to keep centrally stored medications in a locked cabinet; by failing to use a licensed pharmacist to transfer medication from one storage container to another; and by failing to assure that self-administered medications were supervised according to appropriate procedures on two separate occasions.

By letter dated March 17, 1989, the President of Eventide disputed the allegations set forth in the Administrative Complaint and requested a formal hearing.

During the hearing, each party presented one witness. The exhibit submitted by Respondent was admitted into evidence. The parties stipulated that Eventide failed to assure that centrally stored medications were kept in a locked cabinet or other storage receptacle on April 19, 1988 and July 12, 1988.

A transcript of the proceeding was not ordered. Rulings on the proposed findings of fact submitted by both parties are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. During the applicable time period, Eventide was licensed to operate as an Adult Congregate Living Facility at the following location: 2869 Sarah Drive, Clearwater, Florida.

   
   

2. On April 19, 1988, a licensure renewal survey was conducted by the Department on the premises in order to monitor Eventide's compliance with licensing standards for Adult Congregate Living Facilities.

   
   

3. As a result of the survey, citations were issued to the facility for the following deficiencies:

   
   

   1. Centrally stored medications were not kept in a locked cabinet.

      
      

   2. Medications were transferred from one storage container to another by someone other than a pharmacist.

      
      

   3. Unlicensed staff was assisting in the distribution and supervision of self-administered medication in an impermissible manner.

      
      

4. The deficiencies were brought to the attention of Dianne Schwartz, President and Administrator of Eventide. It was explained by a representative of the Department that if medisets were used within the facility, a pharmacist was required to complete the transfer of the medications out of their original containers into the medisets. Further, it was explained that unlicensed staff was not allowed to place medication in the mouths of residents. Such staff members could only assist in the opening of medication containers by residents and the placement of the medication into the hands of residents for self- administration.

   
   

5. Written verification of the deficiencies was given to the facility administrator, along with a time deadline for correction of the listed deficiencies. The facility was required to correct the deficiencies by the end of April, 1988.

   
   

6. On July 12, 1988, the Department representative revisited the facility to determine if the deficiencies had been corrected.

   
   

7. The medisets used by the facility were now filled and checked on a weekly basis by Jay Shurline, a pharmacist with Mission Hills Pharmacy. Receipts for the pharmacists's services have been provided as Respondent's Composite Exhibit A.

   
   

8. During the July 12, 1988 revisit, unlicensed staff members were observed placing small paper souffle cups containing medications in front of residents so that the residents could administer their own medication. The

   actual placement of the medications into the souffle cups was completed by the Facility Administrator, a registered nurse. Occasionally, staff members would put the medication on a resident's plate, if this was requested by the resident. Although these new procedures were not as egregious as the prior practices, they were on the same continuum and were contrary to the requirement that residents administer their own medication from the pharmaceutical container into their mouths, without intervention by others.

   
   

9. It was explained to the Facility Administrator that the revised procedure for distributing medications was still a deficiency in that medications were still being transferred from one storage container (medisets) to another (souffle cups) by someone other than a pharmacist (Facility Administrator). In addition, the revised procedure regarding the supervision of self-administered medication by residents still failed to comply with the standards for supervision. The medications were removed from the control of residents in an unnecessary procedure. Residents in this type of health care facility are able to administer their own medication unless their physician indicates otherwise. In those instances, a licensed staff member must administer the medication. These ongoing deficiencies were to be corrected immediately.

   
   

10. The facility was revisited on October 26, 1988. During this visit, the Department representative was informed by a staff person of revised procedures used for the supervision of medication. These procedures, as explained by the staff member, were found to be unsatisfactory by the Department's representative.

    
    

11. The revised procedures discovered by the Department on October 26, 1988, were presented at hearing in the form of impermissible hearsay. The Facility Administrator denied the allegations and explained that small, empty cups were placed by each resident's dinner plate for their personal use. A resident may use the cup for water to assist in the swallowing of medication or to pour his or her own medication. For example, one resident suffers from palsy and finds it easier to take all of his medications at one time. The small cup is used by him to carry medications from his hands to his mouth.

    
    

12. No mistakes regarding the accuracy of dosages or the use of medications occurred during Eventide's distribution and supervision of self- administered medication in an impermissible manner.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

    
    

14. Section 400.411, Florida Statutes, authorizes the Department to promulgate and enforce rules establishing minimum standards for Adult Congregate Living Facilities. These rules are contained in Chapter 10A-5, Florida Administrative Code.

15. The failure of Eventide to keep centrally stored medications in a locked cabinet or other storage receptacle constitutes a violation of Rule 10A- 5.0182(3)(a)4, Florida Administrative Code, which provides as follows, in pertinent part:

    
    

    1. Medication:

       1. Storage:

    * * *

    4. Centrally stored medications shall be:

    1. Kept in a locked cabinet or other storage receptacle.

       
       

16. As a result of the facility's failure to correct its deficiency, which was cited on April 19, 1988 for correction within the month of April, the Respondent is guilty of the violation charged in paragraph (3)(a) of Count I of the Administrative Complaint. This violation is categorized as a Class "III" violation under Section 400.419(3)(c), Florida Statutes, as it is an occurrence related to the personal care of residents and potentially threatens their physical health. The Department may impose a civil penalty of not less than

    $100 and not exceeding $500 for this violation discovered on July 12, 1988.

    
    

17. The transfer of residents' medication from the medisets to the souffle cups on July 12, 1988, was a violation of Rule 10A-5.0182(3)(a)6b, Florida Administrative Code which provides:

    
    

    6. No person other than a pharmacist shall

    * * *

    1. Transfer medication from one storage container to another.

    
    

18. The temporary storage of medications in the souffle cups was an uncorrected violation in that the Facility Administrator had been previously advised that the filling of medisets by her for temporary storage purposes was improper. Although the time period for storage was greatly reduced after the citation for the deficiency on April 19, 1988, the problem remained the same: medications were improperly transferred. The Respondent is guilty of the violation set forth in Paragraph (3)(b) of Count I of the Administrative Complaint, and is subject to a civil penalty under Section 400.419(3)(c), Florida Statutes.

    
    

19. Rule 10A-5.0182(3)(b)2d, Florida Administrative Code, sets forth the manner in which self-administered medication is to be supervised. A staff person may:

    
    

    d. Open the medication container, if necessary, and assist the resident for whom it is prescribed in the self-administration process. This includes but is not limited to, the steadying of the arm, hand, or other parts of the resident's body, as to allow the self-administration of medication.

20. The passage of the souffle cups to residents by unlicensed staff members on July 12, 1988, for the purpose of self-administration of medication and/or the placement of medications on dinner plates, was an impermissible intervention by staff into the self-administration process. Accordingly, the Respondent is guilty of the violation set forth in Paragraph (3)(c) of Count I of the Administrative Complaint, and is subject to a civil penalty under Section 400.419(3)(c), Florida Statutes.

    
    

21. Rule 221-6.026(3), Florida Administrative Code and Section 120.58(1)(a), Florida Statutes, provide that:

    
    

    Hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

    
    

22. Accordingly, the evidence submitted at hearing to establish that a violation of Rule 10A-5.0182(3)(b), Florida Administrative Code, occurred on October 26, 1988 regarding the impermissible supervision of self-administered medication by residents cannot support a finding of guilt as to Paragraph (4)(a) of Count II of the Administrative Complaint. The Respondent is not guilty of this charge made by the Department.

    
    

23. In mitigation of the three violations committed by Respondent, it was revealed that deficiencies, as understood by the Facility Administrator, were corrected as soon as they were fully understood by her. No harm occurred to any of the residents as a result of the deficiencies or the violations of the minimum resident care standards by Respondent. There was no showing by the Department that mitigation was considered in the suggested civil penalties to be imposed upon the Respondent under Section 400.419(3)(c), Florida Statutes.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That the Respondent be found guilty of having violated Rule 10A- 5.0182(3)(a)4, Florida Administrative Code, as alleged in Paragraph (3)(a) of Count I of the Administrative Complaint.

   
   

2. That the Respondent be found guilty of having violated Rule 10A- 5.0182(3)(a)6b, Florida Administrative Code, as alleged in Paragraph (3)(b) of Count I of the Administrative Complaint.

   
   

3. That the Respondent be found guilty of having violated Rule 10A- 5.0182(3)(b)2, Florida Administrative Code, as alleged in Paragraph (3)(c) of Count I of the Administrative Complaint.

   
   

4. That the Respondent be found not guilty of having violated Rule 10A- 5.0182(3)(b), Florida Administrative Code, as set forth in Paragraph (4)(a) of Count II of the Administrative Complaint.

   
   

5. That the civil penalty assessed against the Facility Administrator for each violation be limited to the minimum which can be assessed under Section 400.419(3)(c), Florida Statutes, which results in a total fine of $300.00.

DONE AND ENTERED this 20th day of July, 1989, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 20th day of July, 1989.

APPENDIX TO RECOMMENDED ORDER CASE NO. 88-2238

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #2.

2. Accepted. See HO #3 and #4.

3. Rejected. Contrary to fact. See HO #6.

4. Accepted. See HO #10.

5. Accepted. See Preliminary Statement.

6. Accept the first sentence. See HO #3 and #8. The rest of paragraph 6 is improper summary and argument. Attempts to shift burdens of proof to Respondent.

7. Accept that Department representative observed improper procedures on April 19 and July 12. See HO #3, and #8. Reject as to October 26. See HO #10 and #11. Proposed findings outside the scope of the allegations set forth in the Administrative Complaint are rejected on that basis.

Respondent's Proposed Findings of Fact are addressed as follows:

1. Accepted. See Preliminary statement.

2. Accepted. See HO #3 and #7.

3. Reject first sentence. See HO #3 and #8. Reject second sentence. See HO #8. Accept third sentence. See HO #12.

COPIES FURNISHED:

Edward A. Haman, Esquire Office of Licensure and

Certification Department of Health and

Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614

James Schwartz, Esquire

416 Drew Street Clearwater, Florida 34615

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

R. S. Power, Esquire Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700

Docket for Case No: 89-002238

Orders for Case No: 89-002238