STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA KNIGHT MANORS, INC. ) d/b/a FRONT PORCH MANOR, )

)

Petitioner, )

vs. ) CASE NO. 89-2573

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell held a formal hearing in this case on July 26, 1990, in Tampa, Florida.

APPEARANCES

For Petitioner: Edward A. Haman, Esquire

Senior Attorney Office of Licensure

7827 North Dale Mabry Highway Tampa, Florida 33614

For Respondent: Barbara Knight Manors, Inc.

d/b/a Front Porch Manor Barbara Knight, Owner

157-9th Avenue North

St. Petersburg, Florida 33701 STATEMENT OF THE ISSUES

Whether or not Petitioner committed the offenses set forth more particularly in the Administrative Complaint and, if so, what penalties should be imposed.

PRELIMINARY STATEMENT

By administrative complaint dated April 5, 1989, Respondent seeks to impose an administrative fine against Petitioner in the amount of $2,350.00 for the following alleged acts:

(1) Petitioner's failure to assure that resident files contained physician orders and/or meal patterns for therapeutic diets and to assure that residents therapeutic diets were prepared and served as ordered by the physician; (2) Petitioner's failure to assure and document the nutritional adequacy of regular menus and that two servings from the milk or milk equivalent

group, four servings from the fruit and vegetable group and two servings from the protein group were offered consistently on a daily basis; (3) Petitioner's failure to assure that an up-to-date and approved diet manual was being used as a standard reference in the planning of regular and therapeutic diets;

1. Petitioner's failure to assure that a one week supply of non-perishable food was on hand at all times;

2. Petitioner's failure to assure that food service standards were met as evidenced by the fact that milk which was used for drinking purposes was not being served from the original container or a bulk milk dispenser and the ventilation hood, filter and extinguishing pipes in the kitchen were dirty and in need of a thorough cleaning; (6) Petitioner's failure to maintain a written work schedule for all employees;

(7) Petitioner's failure to assure that resident files contain physician orders and/or meal patterns for therapeutic diets. All of the deficiencies that Petitioner was cited are Class III and if proven, authorizes Respondent to impose an administrative fine of $100 to $500 for each deficiency.

Respondent timely filed an answer disputing the allegations set forth in the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of Mary Cook, a public health nutrition consultant, Alice Adler, a human services program specialist and Sharon McCray, a human services surveyor specialist. Barbara Knight testified on Respondent's behalf and Petitioner recalled Mary Cook as a rebuttal witness.

Petitioner's exhibits 1 through 9 and Respondent's exhibit 1 were offered and received in evidence at the hearing.

On August 6, 1990, Petitioner submitted a copy of responses that were filed to interrogatories propounded by Respondent; a summary of its position as stated at the hearing and its request that the administrative complaint be dismissed in its entirety. Petitioner's submission was considered as a statement of its position.

Based upon my observation of the witnesses and their demeanor while testifying and documentary evidence presented at the hearing, the following relevant facts are found:

FINDINGS OF FACT

1. Petitioner is licensed to operate the Front Porch Manor, an adult congregate living facility (ACLF) located at 157-9th Avenue in St. Petersburg, Florida.

   
   

2. As part of its regulation of ACLF's, Respondent conducts routine inspections of ACLFs to ascertain that they are providing for the health, safety and welfare of its residents, to promote continued improvement of such facilities, to encourage the development of innovative and affordable facilities and to insure that needed economic, social, mental health, health and leisure

   services are made available to its residents. In keeping with such purposes, Respondent conducted surveys of Petitioner's ACLF on July 21, 1987, January 19 and 22, 1988; April 29, 1988 and August 9, 1988.

   
   

3. During Respondent's survey of Petitioner's ACLF on July 21, 1987, several deficiencies were noted and were again found to exist during follow up surveys of January 19 and 22, 1988. These deficiencies included Petitioner's failure to insure that resident files contained physician orders and meal patterns for therapeutic diets and that therapeutic diets were prepared and served as ordered by the physician. During the first survey, Petitioner also failed to assure and document the nutritional adequacy of regular menus in that two servings from the milk or milk equivalent, four servings from the fruit and vegetable group and two servings from the fruit group were offered consistently on a daily basis. Petitioner also failed to maintain an up-to-date and approved diet manual as a standard reference in planning of regular and therapeutic diets; failed to maintain at all times a one week supply of non-perishable food based on the number of weekly meals the facility had contracted to serve and failed to assure that food service standards were met as evidenced by the fact that milk for drinking purposes was not being served from the original container or from a bulk dispenser and the ventilation hood, filter and extinguishing pipes in the kitchen were dirty and needed a thorough cleaning. Petitioner also failed to maintain a written work schedule for all employees. Petitioner was allowed through August 21, 1987 to correct the deficiencies and failed to do so. Respondent made follow-up visits and the deficiencies were not corrected as required by August 21, 1987. The next survey visit was made by Respondent on January 19, 1988 and at that time, the above cited items were all corrected by Petitioner during follow up visits on April 29 and August 9, 1988 with the exception that one resident's file did not have a doctor's order or a therapeutic diet and the diet manual was not available to review the meal pattern for a liberal diabetic diet. This item was however, partially corrected during the final follow-up visit on August 9, 1988. The uncorrected portion dealt with the Respondent's citation for the incompleteness of a resident's file and that matter was satisfactorily explained by Petitioner during the hearing.

   
   

4. During the survey on January 19, 1988 Respondent observed that Petitioner's ventilation hood, filter and extinguishing pipes and the vinyl tablecloths in the dining room were clean although there was a noticeable accumulation of dust in the ACLF on August 9, 1988.

   
   

5. Petitioner's ACLF was newly licensed at the time of Respondent's visit during the first survey of July 21, 1987. Petitioner was not fully knowledgeable of Respondent's staffing guidelines and therefore made several mistakes in posting the work schedule of its staff. In this regard, one of Petitioner's staff quit during the week of the March 28, 1988 survey and that disgruntled employee contacted Respondent to advise that there was inadequate staff at Petitioner's facility pursuant to Respondent's rules and regulations. Mrs. Knight had a heart attack and her husband attempted to cover both facilities during her absence. There were no disruption of meals and care and the residents were properly cared for during this period. Upon Ms. Knight's return to work from her recuperation, she endeavored to, and in fact complied with, the posting requirements respecting the scheduling of staff.

   
   

6. Respecting Respondent's claim that Petitioner failed to maintain a therapeutic diet for one of its diabetic patients, a review of that patient's physician order indicates that her attending physician classified her diet as "liberal" on health assessment which he defined as a normal regular diet with the exception that the patient should not have sugared desserts, jelly, candy,

   and foods cooked in sugar syrup except for the treatment of suspected low blood sugar. The attending physician noted that that patient had been receiving the proper meals and no change in her diet was indicated. Petitioner does not serve any of the items listed in the exception.

   
   

7. Petitioner attempted to comply with Respondent's directive that milk be served in either one-half pint containers or in large original containers. This attempt proved to be cumbersome when Petitioner used a large container. When Petitioner tried using a five gallon jug with a tap, the milk would often dry and clog the drain or it would squirt on the floor leaving a residue of milk creating a potential health hazard. Despite Petitioner's attempt to comply with this regulation, it appears that Respondent later withdrew the regulation and is no longer enforcing it.

   
   

8. Petitioner's ACLF is situated on a dusty street, approximately two blocks from the beach where cars often pass at a high rate of speed. This creates a dusty condition in the ACLF although Petitioner endeavors to maintain the premises in a clean and sanitary manner at all times. Petitioner's husband regularly removes the screen from the ventilating hood and hoses it down with a pressure hose. He spends a great deal of time cleaning the hood based on his lifelong fear of creating a fire hazard. Finally, Respondent's staff admitted that Petitioner was cooperative throughout the surveys and eventually corrected all of the deficiencies that were cited.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The authority of the Respondent is derived from Chapter 400, Florida Statutes and Rule Chapter 10A-5, Florida Administrative Code.

    
    

11. Respondent demonstrated, by clear and convincing evidence, that Petitioner failed to assure that resident files contained physician orders and meal patterns for therapeutic diets or that such diets were prepared and served as ordered by the physician, failed to assure and document the nutritional adequacy of regular menus were offered consistently on a daily basis, failed to maintain and up-to-date and approved diet menu as a standard reference in planning regular and therapeutic diets, failed to maintain a one-week supply of nonperishable food based on the number of weekly meals the facility contracted to serve or that food service standards were met respecting the dispensing of milk, failed to maintain a written work schedule for staff employees and failed to insure that food service standards were met in the area of cleanliness of the kitchen and ventilation hood. These conditions were found to exist during Respondent's initial survey during July of 1987, and were not corrected within the mandated time frames as requested by Respondent at the initial survey as evidenced by the initial survey report. However, as noted, Petitioner finally corrected all items which were noted by Respondent as deficiencies during subsequent follow-up visits on during January, April 29 and August 9, 1988. The sole exception was the deficiency citation that Petitioner received alleging that one resident's file did not have a doctor's order or a therapeutic diet. The evidence revealed that Petitioner complied with the doctor's order respecting that patient and based on that order, no therapeutic diet was required.

RECOMMENDATION

Based on the foregoing findings of fact and conclusion of law it is RECOMMENDED that:

Petitioner enter a Final Order imposing an administrative fine in the amount of $1,000.00, payable to Respondent within thirty (30) days of the date of its final order. 1/

DONE and ENTERED this 27th day of September, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 27th day of September, 1990.

ENDNOTE

1/ This recommendation is made with consideration of the mitigation factors presented by Petitioner including the fact that Petitioner was newly licensed ACLF, that Petitioner strived to correct the deficiencies albeit outside of the mandate time frames and Petitioner's cooperative efforts to comply with the ALCF's rules and regulations.

COPIES FURNISHED:

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Linda Harris, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Barbara Knight, Owner Edward A. Haman, Esquire

157-9th Avenue North HRS - Office of Licensure St. Petersburg, Florida 33701 & Certification

7827 North Dale Mabry Hwy. Tampa, Florida 33614

Docket for Case No: 89-002573

Orders for Case No: 89-002573