STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0843

)

HOLOHAN'S (Noelle M. Holohan and ) Matt Holohan, d/b/a Holohan's, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Clearwater, Florida on May 23, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward A. Haman, Esquire

DHRS - Office of Licensure and Certification

7828 N. Dale Mabry Highway Tampa, Florida 33614

For Respondent: Matt Holohan, pro se

Holohan's

7737 91st Street N. Seminole, Florida 34647

STATEMENT OF THE ISSUES

The issue for consideration herein is whether Respondent's license to operate an Adult Congregate Living Facility, (ACLF), should be disciplined because of the deficiencies outlined in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 3, 1990, Carole D. King, for Connie D. Cheren, Director of the Office of Licensure and Certification in the Department of Health and Rehabilitative Services, (Department), indicated the Department's intent to impose an administrative fine on the Respondent for two violations of Chapter 400.419(3), Florida Statutes, deficiencies discovered in a survey of the Respondent's facility conducted on April 20 and 21, and July 13, 1989. On January 10, 1990, Noelle M. Holohan, Administrator of the facility, requested a formal hearing on the allegations and on February 6, 1990, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. After an Initial Order was forwarded to both parties, and

responded to, Hearing Officer J. Lawrence Johnston, by Notice of Hearing dated April 10, 1990, set the case for hearing in Clearwater on May 23, 1990, at which time it was heard as scheduled, by the undersigned to whom the file had been transferred in the interim.

At the hearing, Petitioner presented the testimony of Alice P. Adler, a human services program analyst with the Tampa OLC and introduced Petitioner's Exhibits 1 through 4. Matt Holohan testified on behalf of the Respondent which also introduced Respondent's Exhibits A and B.

No transcript was provided and neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, the Respondent's Matt Holohan and Noelle D. Holohan, his wife, operated an ACLF, Holohan's, located at 7737 91st Street North in Seminole, Florida. The Department was and is the state agency responsible for licensing and monitoring the operations of ACLFs in Florida.

   
   

2. On April 20, 1989, Alice Adler, a human services program analyst with the Department's Tampa OLC, performed an annual survey of the Respondent facility during which she reviewed the facility operation for compliance with the Department's minimum standards. During the course of the survey, Ms. Adler discovered several minor discrepancies which included a failure to insure that each person employed by the facility who might come into contact with potentially infectious material, was trained in infection control procedures for blood and other bodily fluids, (ACLF 408) and a failure to insure that leisure activities were documented on a leisure calendar to indicate activity and approximate time. There were no assurances given or shown that residents were provided with a minimum of one hour per day of social and leisure activity, Monday through Friday, (ACLF 1011).

   
   

3. Ms. Adler's evaluation revealed that the facility did not have any infection control procedures in place nor was the Administrator able to demonstrate any evidence that the staff, one lady hired to clean the facility on a regular basis, had been trained in such procedure. The Administrator, Ms. Holohan, had received Administrator training, but no additional training in the area in question. When Ms. Adler asked to see the records of the facility regarding training, and reviewed the employee records, she was unable to find any evidence of either a program or some time of unorganized training.

   
   

4. With regard to the deficiency dealing with leisure time activities, her review failed to uncover any program of any nature. Ms. Adler discussed the matter with Ms. Holohan, and with the residents, and none were able to describe to her any type of regularly scheduled activity.

   
   

5. Throughout the course of her evaluation, Ms. Adler was accompanied by Ms. Holohan and when the survey was concluded, she conducted an exit interview with Ms. Holohan during which she discussed the deficiencies discovered and agreed with her on dates by which these deficiencies were to be corrected. At the time she left the facility, Ms. Adler delivered to Ms. Holohan an exit notice which contained instructions as to how to protest any of the cited deficiencies and which invited comments and questions regarding further activity. Ms. Holohan signed an acknowledgment of Receipt for that form.

6. Thereafter, after returning to her office, Ms. Adler completed a deficiency report outlining all deficiencies including those listed here, which was forwarded to the facility.

   
   

7. The deficiency report was accompanied by a cover letter which included Ms. Adler's name and address as the person to contact for clarification of any questions regarding the deficiencies noted or with a request for an extension of time for correction. No questions were received nor were any extensions requested. Ms. Holohan acknowledged receipt of the notice of deficiencies on May 12, 1989.

   
   

8. On July 13, 1989, Ms. Adler made a follow up visit to the facility and found that neither of the two deficiencies cited here had been corrected. With regard to the first, no procedures had been established and no written documentation was made available for her to review. With regard to the activities calendar, nothing had been established to correct this deficiency either. At that time Ms. Holohan indicated she had only two residents, one of whom was blind. They kept themselves busy and she didn't feel any formalized program was necessary.

   
   

9. Mr. Holohan stated that at the time of Ms. Adler's first visit they had a lady available as an employee to do the housecleaning. When they were told that it was necessary that this employee have a health certificate of freedom from communicable diseases and be trained in the handling of hazardous materials, these requests were passed on to the employee who quit immediately rather than comply with either request. Thereafter, for several weeks, Ms. Holohan did the housecleaning by herself. In July, 1989, the Holohan's hired a certified nurse's aide to clean the house, and other than that individual, Ms. Holohan remained the only person in contact with body fluids. This aide was, however, not given the required training and, thereafter, left the facility's employment. Since that time, they have hired three other people on a part time basis who have received the proper required training.

   
   

10. At the hearing, Mr. Holohan offered a handwritten procedure for handling infectious materials signed by Ms. Holohan, which was delivered, subsequent to the second inspection, to Ms. Adler at the Department's Tampa office. When this document was submitted, the deficiency was determined to have been corrected. However, neither at the time of the first survey, nor at the time of the second, was this document presented as evidence of compliance. Consequently, it is clear that at the time of both survey visits, though the documentation may have existed, it was not presented as is required by the Rule, nor was any indication given that it existed. At both visits, Ms. Holohan indicated none was in effect. Had such a document been presented on either visit, it would have been accepted and the deficiency not memorialized.

    
    

11. The Department does not have a pre-written procedure against which it measures the programs developed by the facility. The onus of responsibility is on each facility to develop the program pertinent to that facility which it needs and since no standards are set by law, it is up to the facility to determine and outline what it proposes to do. In almost every case, the Department has to accept the submission by the facility. In this case, when the handwritten procedure mentioned above was submitted to the Department, it was satisfactory and the requirement satisfied.

    
    

12. With regard to the activities deficiency, according to Mr. Holohan, it did not seem important to record those items that were considered important to the Department. He contends, however, that though no formal program was

    memorialized, they did the following things which, he feels, constitute an appropriate activities program. They subscribe to three magazines each month; either Mr. or Ms. Holohan takes the residents to the mall whenever they can do so and the residents desire; and both at the breakfast and dinner meals, Mr.

    Holohan conducts a discussion of current events. According to Mr. Holohan, most activities center around the meal times. At breakfast, for example, the residents' horoscopes are read from the paper. Another activity is the feeding of the wild squirrels and birds which come to the house.

    
    

13. These above cited activities were not, however, listed on any formal activity report nor were they scheduled in advance, as is required, because they were considered to appear too trivial. Nonetheless, according to Mr. Holohan, the facility has an activities report as is required by the Department. Be that as it may, at neither the first nor second survey was such a report, required by the Department, kept and available.

    
    

14. Mr. Holohan claims he is almost "insulted" by the Department's suggestion that his facility's activities are not what they should be. He claims to have spent approximately $1,500.00 in redoing the patio for the residents, and he also takes them on trips to the park and to concerts when the residents indicate they want to and are capable of going. No evidence was presented, however, as to how often this was actually done over the past year, for example. The key, however, is the residents' physical ability to participate in these activities, but Mr. Holohan claims he is ready to provide the service when requested. In addition, he purchased a four door automobile so that he would be able to take the residents more comfortably to wherever they wanted to go.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

16. In its Administrative Complaint, Petitioner seeks to discipline the Respondent's license to operate an ACLF because of the failure to comply with certain departmental requirements concerning the training of personnel in the handling of potentially hazardous material and the scheduling of leisure activities for the residents.

    
    

17. The burden of proof to establish these violations as alleged, by a preponderance of the evidence, falls upon the Petitioner, Department. Here, the Department has shown, through the uncontradicted testimony of Ms. Adler, that the discrepancies existed on the initial visit; that the discrepancies and necessary corrective actions were discussed with Ms. Holohan at the time and were followed up by written notice; that no request for clarification or an extension of time for correction was submitted by Respondent, and that on the follow-up visit, the same discrepancies were found to still exist. Such was admitted by the Respondent. This constitutes a clear basis for disciplinary action under the provisions of the pertinent Rules and Statute.

    
    

18. Petitioner proposed to impose an administrative fine of $250.00 for each of the two cited and proven deficiencies. In light of the Respondent's failure to correct the deficiencies in a timely fashion, an administrative fine is appropriate. However, since the facility is so small and has so few residents, a reduction in the amount of the fine should be considered.

RECOMMENDATION

Based on the foregoing Findings of fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Secretary issue a Final Order herein imposing an administrative fine of $250.00.

RECOMMENDED this 2nd day of July, 1990, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 2nd day of July, 1990.

COPIES FURNISHED:

Edward A. Haman, Esquire DHRS - Office of Licensure

and Certification

7827 North Dale Mabry Highway Tampa, Florida 33614

Noelle M. Holohan Administrator Holohan's

7737 91st Street North Seminole, Florida 34647

John Miller General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Sam Power Agency Clerk DHRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 90-000843

Orders for Case No: 90-000843