STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 09-0845

) PALMETTO GUEST HOME, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida on April 26, 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

7827 North Dale Mabry Highway Tampa, Florida 33614

For Respondent: Was not present and was

not represented by counsel. STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

On January 3, 1990, Connie D. Cheren, Director of the Department of Health and Rehabilitation's, (Department), Office of Licensure and Certification, signed an Administrative Complaint in this case by which she alleged Respondent to have been guilty of eight separate discrepancies, all violations of various rules of the Department and Florida Statutes, which were identified during a facility visit conducted on March 28, 1989, and which remained un-corrected at the follow-up visit on June 5, 1989. Petitioner proposed to impose an administrative fine of $250.00 for each alleged violation.

By letter dated January 16, 1990, James D. Biggins, owner of the facility in question requested a formal hearing on the allegations, and on February 6, 1990, the matter was forwarded to the Division of Administrative Hearings for

appointment of a Hearing Officer. After the parties' responses to the Initial Orders issued in this case, the undersigned, by Notice of Hearing dated February 28, 1990, set the case for hearing on April 26, 1990, in Bradenton, at which time it was held as scheduled.

Neither Mr. Biggins, nor a representative was present far the hearing. The Notice of Hearing was sent to the address for Respondent contained on his request for formal hearings, and by letter to the Director of the Division of Administrative Hearings on March 20, 1990, Mr. Biggins acknowledged his understanding that the hearing was scheduled for April 26, 1990.

Notwithstanding the hearing was set for 1:00 PM, the undersigned waited until 1:20 PM and when neither Respondent nor counsel appeared by that time, convened the hearing.

At the hearing, Petitioner presented the testimony of Alice P. Adler, Human Services Surveyor Specialist, and Mary C. Cook, Public Health Nutrition Consultant for the Department's Office of Licensure and Certification in Tampa. Petitioner also introduced Petitioner's Exhibits 1 and 2. Respondent presented no evidence. No transcript was provided and neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, Petitioner, Department, was the state agency responsible for the regulation of Adult Congregate Living Facilities, (ACLF), in Florida, and Respondent operated an ACLF, Palmetto Guest Home, at 820 5th Street West, Bradenton, Florida.

   
   

2. On March 28, 1980, Ms. Alice P. Adler, and Ms. Mary C. Cook, both surveyors for the Department's Office of Licensure and Certification, did a routine survey of the Respondent's facility for compliance with the requirements of Chapter 10A-5, F.A.C., and Chapter 400, Florida Statutes. As a result of their survey they discovered several discrepancies which required correction. The eight pertinent to this hearing were:

   
   

   1. The facility did not have written accounting procedure that clearly outlined the operation of the business, including resident trust funds and other property. (Sec.400.417(1) and 400.427, Florida Statutes).

   2. Several resident contracts did not reflect the current rate being paid for care. (Section 400.402(10) and 400.424, Florida Statutes).

   3. There were no assurances that staff were free of infection or communicable diseases, (Rule 10A-5.019(5), F.A.C.).

   4. All centrally stored medications were not kept in a locked cabinet, in that medications were observed placed on top

      of the north wing medicine cabinet. (10A- 5.0182(3)(a), F.A.C.)

   5. Residents who were prescribed therapeutic diets by their physician were not served these diets as ordered. (10A- 5.020(1), F.A.C.).

   6. Various violations of the Food Service Code were identified. (10D-13, F.A.C.)

   7. Each resident record did not contain a report of physical examination to assure that the resident was free of

      communicable or infectious disease. (Sec. 400.426, Florida Statutes, and Rule 10A- 5.0181(2)(a), F.A.C.)

   8. The facility did not provide the resident or guardian with an admission package upon admission. Sec. 400.426(4)(5), Florida Statutes and Rules 10A-5.0181(1)(a)(c) and 10A-5.024(2)(c), F.A.C.).

      
      

3. As was normal practice, on the day of the survey, prior to departure, the team went over its findings with Ms. Miller, the Executive Director of the facility and Ms. Brown, the Administrator, pointed out each discrepancy, and advised as to what was needed to bring the discrepancy into compliance. Thereafter, a copy of the written survey report, with the classification of deficiencies, was sent to the facility and on May 8, 1989, Ms. Brown acknowledged receipt of the survey report form.

   
   

4. A follow-up survey was conducted by both Ms. Adler and Ms. Cook on June 5, 1989. At that time, several previously identified discrepancies had been corrected, but those listed above in Paragraph 2 were still not corrected.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. In its Administrative Complaint, Petitioner seeks to discipline the Respondent's license to operate an ACLF because of the failure to correct certain conditions existing at the facility which constitute violations of Department Rules and the Florida Statutes. Specifically, the Department has alleged the Respondent to have committed the violations enumerated in paragraph 2a through 2h of the Findings of Fact portion of this Recommended Order.

   
   

7. The burden of proof to establish the 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 and Ms. Cook, its surveyors, that the discrepancies did exist at the initial visit; that the discrepancies and the necessary corrective actions were discussed with Respondent's Executive Director and Administrator at the time, and were further outlined in a follow-up writing; that no requests for clarification or an extension of time for correction was submitted by Respondent; and that on the follow-up visit, the same discrepancies outlined here were found to still exist. This constitutes a clear basis for disciplinary action under the provisions of the pertinent Rules and Statutes.

   
   

8. Petitioner proposed to impose an administrative fine of $250.00 on Respondent for each of the eight cited and proven deficiencies. This is appropriate under the circumstances.

RECOMMENDATION

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

RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order herein imposing an Administrative Fine of $250.00 for each of the eight violations established for a total fine of $2,000.00.

RECOMMENDED this 1st day of June, 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 1st day of June, 1990.

COPIES FURNISHED:

Edward A. Haman, Esquire DHRS

Office of Licensure and Certification

7827 North Dale Mabry Highway Tampa, Florida 33614

James D. Biggins Palmetto Guest House 820 5th Street West Palmetto, Florida 34221

Sam Power Agency Clerk DHRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-00700

John Miller General Counsel DHRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 90-000845

Orders for Case No: 90-000845