STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER CASON, d/b/a )

JENNIFER'S ADULT CARE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3882

) 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 public hearing in this case on October 2, 1990, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: William P. Murphy, Esquire

1511 North Morgan Street Tampa, FL 33602

For Respondent: Paula M. Kandel, Esquire

Senior Staff Attorney

7827 N. Dale Mabry Highway Tampa, FL 33614

STATEMENT OF THE ISSUES

Whether or not Petitioner's license to operate Jennifer's Adult Care should be renewed.

PRELIMINARY STATEMENT

By letter dated May 25, 1989, Respondent, Department of Health and Rehabilitative Services, Office of Licensure and Certification advised Petitioner, Jennifer Cason d/b/a Jennifer's Adult Care, that her application for renewal of license to operate an adult congregate living facility, which expired by its terms on February 8, 1989, was being denied. The specific basis for the denial included the following:

1. deficiencies cited during area office surveys and follow-up visits on May 17, November, 20, 1988 and January 23, 1989 which demonstrate multiple and repeated failure to correct deficiencies and noncompliance with standards pursuant to Section 400.414(2), 1988 supplement;

   
   

2. the confirmed exploitation of resident C.C. as identified in the confidential adult protective services report dated October 19, 1988; and

3. the fact that Petitioner's facility has been under a moratorium during the past twelve months, pursuant to Section 400.414(3), Florida Statutes.

Respondent advised Petitioner of her right to contest that denial of renewal by requesting a formal hearing pursuant to Chapter 120, Florida Statutes, within thirty days of receipt of the denial letter. Petitioner timely requested a formal hearing and the matter was thereafter transferred to the Division of Administrative Hearings to conduct a formal hearing. Following extensive discovery, the matter was first set for hearing on April 3, 1990 to be heard on May 25, 1990. The matter was continued based on Respondent's request. On August 17, 1990, the matter was rescheduled for hearing for October 2, 1990 and was heard as scheduled.

At the hearing, Respondent presented the testimony of Steven Nehring, Mrs. Diane Cruz, John Morton and Mary Cook. Respondent's Exhibits 1 through 6 were offered and received in evidence at the hearing. Petitioner, Jennifer Cason, testified on her behalf.

On October 15, 1990, the parties filed proposed recommended orders which were considered in preparation of this recommended order. Proposed findings which are not incorporated herein are the subject of specific rulings in an appendix.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant facts are found.

   
   

2. Jennifer Cason is the owner/operator of Jennifer's Adult Care.

   
   

3. Jennifer's Adult Care is an adult congregate living facility (ACLF) situated at 1022 13th Avenue South in St. Petersburg, Florida.

   
   

4. Petitioner's ACLF license expired by its terms on February 8, 1989. Petitioner's license renewal application was denied by the Respondent by letter dated May 25, 1989.

   
   

5. Petitioner is the subject of a confirmed report of abuse dated October 19, 1988 confirming the exploitation of C.C. a resident in Petitioner's ACLF.

   
   

6. Petitioner was advised that she could challenge the confirmed classification if she considered that the classification was inaccurate or that it should otherwise be amended or expunged. Petitioner failed to challenge the report.

   
   

7. On October 21, 1988 Respondent imposed a moratorium on admissions at Petitioner's ACLF. The census at that time was eight residents. That moratorium has not been lifted and therefore remains in effect at this time.

   
   

8. As of October 2, 1990, Petitioner has not requested an exemption of the confirmed abuse report to be qualified eligible to work with disabled adults or aged persons.

9. Petitioner's ACLF has a history of deficiencies based on surveys dating from its inception. As example, Mrs. Diane Cruz, a human services surveyor specialist who has been employed by Respondent for more than eleven years conducted a survey of Petitioner's ACLF on May 17, 1988. As a result of that survey, the following deficiencies were noted: (a) The staff's time sheets were not posted or available for review; (b) the facility did not provide adequate staff and services appropriate to the needs of the residents, to wit: one resident required catheter care and there was either no staff person or other qualified third party provider available to provide the needed catheter care;

   (c) the food service staff was not knowledgeable regarding purchasing sufficient quantities of essential food, proper sanitary conditions necessary for safe food preparation and food types that meet the minimum requirements for a regular diet and (d) the staff person responsible for the supervision of self-medication was not trained. The deficiency relating to the lack of staff training and the supervision of self-medication was a repeat deficiency. Petitioner was allowed through June 17, 1988 to comply with the agreed corrective action plans. By July 18, 1988 most of the items cited as deficiencies were corrected however, Petitioner failed to correct two

   deficiencies relating to admission criteria and resident standards including (a) one resident's health assessment had not been completed more than 60 days prior to admission to the facility and five residents who were admitted to the facility for more than 30 days did not have a health assessment on file. Both of these deficiencies were corrected on October 5, 1988. Petitioner was also cited for certain deficiencies in the area of the physical plant in that (a) there was an inoperable ceiling light in Room 2; (b) there was no floor under the tub in the first floor corridor bath; (c) there were no non-slip safety devices in the tub of the upstairs corridor bath; (d) there was a hole in the ceiling at the south end of the first floor corridor and (e) the corners of the paneling in the first floor sitting room were broken off. Petitioner was allowed through June 17, 1988 to correct these deficiencies. As of July 18, items (a), (b), and (c) were corrected, however, items (d) and (e) remained uncorrected and were not in compliance until October 5, 1988.

   
   

10. John C. Morton is Respondent's human services program director. He has been employed by the agency in excess of 11 years having served in his current position for approximately 3 1/2 years. As part of Morton's duties, he reviews survey reports, schedule surveys and respond to complaints received regarding ACLFs. Morton is familiar with Petitioner's facility from his review of survey findings and staff discussions.

    
    

11. Morton prepared a deficiency report dated October 20, 1988 issued to Petitioner based on information he received from Respondent's office of adult protective services regarding a resident that Petitioner left in sole charge of Petitioner's ACLF. The resident that was left in charge was not trained to care for the residents of Petitioner's ACLF. As a result of that report, Morton cited Petitioner for failing to provide at least one staff member within the facility at all times; failure to provide sufficient staff to meet the needs of residents and leaving a resident in sole charge of other residents. The moratorium on admissions was issued effective October 21, 1988, based on that report.

    
    

12. Mary Cook is employed by Respondent as a public health nutrition consultant. Ms. Cook has been so employed in excess of three years. She is familiar with Petitioner's facility having surveyed it on several occasions during the last three years.

13. On January 23, 1989, Ms. Cook conducted a follow-up survey to determine whether Petitioner was in compliance with the moratorium. Following her review of the staffing patterns as listed on work schedules provided her, Petitioner listed only one staff person to work for the entire day on Sunday. However, when Ms. Cook arrived at the facility, two staff members were present. Upon inquiry, Ms. Cook was able to determine that the staff person who was present but who was not listed as working according to the schedule, also indicated that she was on duty at another area ACLF, Anita's Personal Care.

    
    

14. Ms. Cook also participated in a survey conducted at Petitioner's facility on April 6 and 14, 1989. As a result of that survey, Petitioner was cited with deficiencies of minimum staffing standards based on the following:

    1. Several residents were being utilized as staff members to provide services to other residents including transportation, housekeeping and personal services;

    2. the facility did not have trained staff present at the facility necessary to supervise the administration of medication; (c) insulin was injected into one resident by a staff member who is not licensed to administer such medications; and (d) staff did not consistently document the residents deviation from normal food intake.

    
    

15. Petitioner acknowledged receipt of FPSS Report No. 88-075890. Petitioner also admitted that she did not send a written request to contest the confirmed report nor has she sought an exemption to be qualified to work with disabled adults or aged persons.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

18. The authority of the Respondent is derived from Chapter 400, Part II, Florida Statutes.

    
    

19. Pursuant to Section 400.414(2)(c), Florida Statutes, the Respondent may deny, suspend or revoke the license of an owner who is the perpetrator of a confirmed report of exploitation and/or neglect which has been upheld or has not been otherwise challenged. Petitioner has not challenged the confirmed classification naming her as the perpetrator in FPSS Report No. 88-075890. Petitioner has not requested an exemption which would authorize her to be qualified as eligible to be employed with disabled adults or aged persons. This fact alone authorizes the Department to deny a license to Petitioner pursuant to Chapter 400.414(3), Florida Statutes (1989).

    
    

20. Additionally, based on the proven pattern of multiple and repeated violations of the minimum staffing standards both as to sufficient staff persons and to provide adequately trained staff over a period dating back to 1987 is additional basis for the Department to deny the renewal of Petitioner's facility license. Based thereon and the totality of evidence presented, Petitioner's facility does not meet or otherwise comply with the standards of an adult congregate living facility and is, therefore, not qualified for renewal of its license.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's

renewal application for licensure as an adult congregate living facility and cancel Petitioner's conditional license for that facility.

DONE and ENTERED this 10th day of December, 1990, in Tallahassee, Florida.

Copies furnished to:

Paula M. Kandel, Esquire Department of Health and Rehabilitative Services

7827 North Dale Mabry Highway Tampa, FL 33614

William P. Murphy, Esquire 1500 Morgan Street

Tampa, FL 33602

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Linda Harris, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 10th day of December, 1990.

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 89-003882

Orders for Case No: 89-003882