STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5238

)

LA MAISON, )

)

Respondent. )

) LA MAISON, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0480

) AGENCY FOR HEALTH CARE ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on June 11, 1992, and finished the following day. On July 31, 1992, the hearing transcript was filed with the Division of Administrative Hearings.

At hearing, counsel agreed to file proposed recommended orders within 60 days' of the filing of the transcript. T.573. See Rule 60Q-2.031(2), Florida Administrative Code.

On petitioner's subsequent motion for extension of time, time for filing proposed recommended orders was extended until February 25, 1993. The attached appendix addresses the parties' proposed findings of fact by number.

APPEARANCES

For AHCA: Michael O. Mathis, Senior Staff Attorney Office of Licensure and Certification 2727 Mahan Drive, Suite 203

Tallahassee, Florida 32308

For La Maison: Cheryl Johnson Howard, Esquire

700 South Palafox Street, Suite 1-A Pensacola, Florida 32501

STATEMENT OF THE ISSUES

Whether the Agency for Health Care Administration (AHCA) should refuse to renew La Maison's license to operate an adult congregate living facility, impose

a civil penalty, or take other disciplinary action against La Maison for the reasons alleged in the administrative complaint and the letter of intent to deny?

PRELIMINARY STATEMENT

By administrative complaint dated July 15, 1991, AHCA's predecessor in this matter, the Department of Health and Rehabilitative Services (HRS) alleged that La Maison "licensed to operate at 2501 Longleaf Drive, Pensacola, Florida as an adult congregate living facility . . . failed to assure that food service standards were maintained as evidenced by menus having not been reviewed and signed by a Registered Dietetic Technician . . . in violation of Section 400.419(3)(c), Florida Statutes and Rules 10A-5.020(1)(c), Florida Administrative Code" on July 20, August 20 and August 23, 1990.

After La Maison requested a formal administrative hearing, HRS referred the matter to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991). At the Division of Administrative Hearings, the case was docketed as No. 91-5238.

When La Maison sought to renew its license to operate an adult congregate living facility, HRS' LuMarie Polivka-West wrote Marita Dehmer, La Maison's administrator, on December 3, 1991, proposing to deny La Maison's application for renewal, specifying as grounds:

The confirmed report of neglect of S.G. which was upheld by the Final Order, Case

No: 91-20 PHC, dated August 24, 1991 (Section 400.414(2)(a), 400.414(2)(e), F.S.);

Violation of the joint stipulation of June 1991, as evidenced by surveys of September 3, 1991 and September 26, 1991 citing twenty-five deficiencies; and

Multiple and repeated violations and failure to maintain minimum standards of facility as evidenced by survey reports of October 20, 1988, June 4, October 30, October 31, 1989,

July 20, August 23, 1990, September 3, and

September 26, 1991 (Section 400.414(2)(d), F.S.)

La Maison again requested a formal administrative hearing, and HRS again referred the matter to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991). At the Division of Administrative Hearings, the license renewal case was docketed as No. 92-0480.

On April 20, 1992, HRS filed a motion to amend denial letter. With entry of the order granting the motion on May 15, 1992, grounds for denial were restated and expanded, as follows:

The confirmed report of neglect of S.G. which was upheld by the Final Order, Case No: 91-20 PHC, dated August 24, 1991 (Sections 400.414(2)(a), 400.414(2)(e), F.S.);

The confirmed report of abuse of M.K., which was upheld by the Final Order, Case No:

90-8088C, dated March 5, 1992 (Sections 400.414(2)(a), 400.414(2)(e), F.S.);

The arrests of June 6, 1990 and nolo conten- dere plea to the charge of Nuisances injurious to health, pursuant to s. 386.041, F.S.; your arrest of May 21, 1985 and subseq- uent May 24, 1985 Conviction of Contempt of Court, pursuant to s. 900.04, F.S.; and your arrest of December 11, 1989 and subsequent Conviction of June 15, 1990 to the charge of Fraud-Insufficient Funds Check, pursuant to s. 832.05, F.S., (Section 400.414(2)(a),

400.414(2)(b), 400.414(2)(d), F.S.);

Violation of the joint stipulation of June 1991, as evidenced by survey of September 3, 1991 citing twenty-eight deficiencies (Section 400.414(2)(d), F.S.); and

Multiple and repeated violations and failure to maintain minimum standards of facility as evidenced by surveys of October 19-20, 1988, February 8 (complaint investigation and follow up survey of that date), May 11, June 14, August 14, October 30-31, 1989, February 7,

July 20, August 23, 1990, September 3 and

December 10, 1991 (Section 400.414(2)(d), F.S.).

The administrative complaint case and the license denial case were consolidated by order entered March 9, 1992.

FINDINGS OF FACT

1. Marita Dehmer is the administrator of La Maison, an adult congregate living facility in Pensacola. Earlier administrative proceedings arising on allegations of La Maison's failure to comply with applicable regulations eventuated in the June 1991 joint stipulation, AHCA's Exhibit No. F-6, pursuant to which HRS issued the conditional eleven-bed license that La Maison now seeks to renew. AHCA's Exhibit No. 3.

   
   

   Reports of Neglect Confirmed

   
   

2. When time came to discharge M.K., a chronic diabetic, from Pensacola's Sacred Heart Hospital, a nun called Ms. Dehmer because M.K. "had very little income . . . [and Ms. Dehmer was] known for taking people with very little income." T.496. That afternoon she collected M.K. at the hospital and took him to La Maison. Before they left the hospital, a nurse told Ms. Dehmer that nothing had been prescribed for M.K., but she said she would ask his physician about medicine for him.

   
   

3. Ms. Dehmer asked the nurse to tell M.K.'s physician, if he wanted to prescribe medicine for M.K., to telephone the pharmacist she regularly dealt with, Arnold Rosenbleeth. By the time Ms. Dehmer called the pharmacy that evening, it had closed for the day. M.K. told her he had insulin at his girl friend's, and Ms. Dehmer repeatedly telephoned there but got no answer. M.K.'s parents, whom she did reach by telephone, suggested she call the girl friend. Meanwhile she gave M.K. fruit to eat.

   
   

4. The next morning she reached the pharmacist, who said insulin would be delivered within "the next hour or so." T.488. After receiving that news, she went to her house next door, leaving M.K. in an employee's care. After she had

   left, M.K.'s mother and a nurse arrived, and M.K. left La Maison with them. His stay at La Maison had lasted some 20 hours.

   
   

5. Nearly 80 years old, S.G., who suffered from Alzheimer's disease, ordinarily lived with a woman who took care of him. When she went to visit her daughter, however, or needed a respite, she left S.G. at La Maison. One Saturday when Ms. Dehmer was at her house next door to La Maison, Angela Powers was in charge and S.G. was temporarily in residence. Ms. Dehmer had explained S.G.'s tendency to wander to Angela Powers at the time she began working at La Maison.

   
   

6. Ms. Powers nevertheless left the premises (to drive somewhere with another resident) without telephoning Ms. Dehmer, without letting the other staff person on duty inside the facility know she was leaving, and in contravention of policy on which she had been instructed. During her absence,

   S.G. walked off the grounds, fell and cut himself so that stitches were required. After that night, Ms. Powers never worked for La Maison again.

   
   

7. As a result of each of these incidents, HRS set in motion bureaucratic machinery which eventually confirmed "abuse registry reports" characterizing Ms. Dehmer's conduct with respect to S.G. and M.K. as neglect of aged or disabled adults. While the incidents themselves occurred before the parties' stipulation in the summer of 1991, HRS's final orders upholding the confirmed reports of neglect, as defined in Section 415.102, were entered subsequently.

   
   

   History of Deficiencies

   
   

8. Applicable regulations divide requirements (or the failure to meet requirements) for adult congregate living facilities into three categories: Class I consists of deficiencies that pose an imminent danger to the life or health of residents; class II deficiencies pose a direct, although not an imminent, danger to residents' well being; and class III deficiencies constitute an indirect or merely a potential hazard. T.275.

   
   

9. At no time has AHCA or HRS ever alleged that La Maison had deficiencies either of a Class I or of a Class II type. The evidence showed in detail La Maison's "history of [Class III] deficiencies," however, including those that were not corrected by deadlines that regulators laid down and some that recurred. But La Maison has hardly been alone in having Class III deficiencies come to light in the course of HRS' annual inspections; other adult congregate living facilities in the Pensacola area have a history of deficiencies, including repeat deficiencies. Indeed, HRS' Rene Fuller testified that "[t]here is a history of deficiencies in almost every facility." T.277.

   
   

   Food Service

   
   

10. On July 20, 1990, Kathleen Wilkes and another HRS employee, Carol Christiansen, inspected La Maison. When Ms. Wilkes asked to see copies of menus, Ms. Dehmer, produced "a piece of paper for July, but she said she couldn't find the prior." T.198. The noon meal that day did not correspond to the menu Ms. Wilkes understood to pertain. No dietician had signed off on the menu(s) Ms. Wilkes saw that day. T.197.

    
    

11. On August 23, 1990, when HRS' Paul Pineau returned for a follow-up inspection, he found every deficiency identified on July 20, 1990 to have been corrected, except that he, too, saw no evidence that menus had been reviewed annually by a registered dietician or dietetic technician. Respondent's Exhibit

    No. P-1, p.3. In May or June of 1989, however, Laura Goolsby, a registered dietician, had prepared or revised four weeks' worth of menus. La Maison's Exhibit No. 8.

    
    

12. On December 18, 1990, Jennifer Scott, another registered dietician, reviewed and approved four weeks' menus for La Maison. Thereafter Albert Jones, who had worked as La Maison's cook for some two years at the time of the hearing, adhered faithfully to the prescribed four-week cycle, keeping meticulous records of such (fully permissible) substitutions as corn bread for white bread and carrots for peas. La Maison also retained a registered dietician to prepare a special 1800-calorie-a-day set of menus for diabetic residents. No resident ever received an improper or insufficient diet, as far as the evidence revealed. La Maison normally keeps a 21-day supply of "extra food" in a locked pantry ten to feet from the kitchen. T.374.

    
    

    All Violations Corrected

    
    

13. HRS' initial inspection, after the parties' stipulation that La Maison's license should be renewed on condition of strict compliance with ACLF regulations, turned up more than 20 Class III deficiencies, ranging from sugar spilt on the pantry floor to broken window panes. On December 10, 1991, when HRS inspectors revisited, everything with which they had found fault in September had been corrected with the exception of the following:

    
    

    13900 10A-5.022(1)(a), F.A.C.

    The building is not kept in good repair and free of hazards as evidenced by:

    1. Floors in both bathrooms are rotted and giving way;

       * * *

       131001 10A-5.023(19), F.A.C.

       Facility grounds are not in a safe, sanitary and presentable condition as evidenced by:

       1) The back yard is bare of grass and severely rain eroded immediately in rear of building;

       
       

       La Maison's Exhibit No. 1. While one of the bathroom floors remained "springy" on reinspection, no bathroom floor was shown to constitute a hazard. Nor was the lack of grass in the back yard or any erosion there proven unsafe or unsanitary.

       
       

       Mitigating Circumstances

       
       

14. Since Marita Dehmer took over La Maison (formerly "Twilight Villa"), she has provided a home for 35 or 40 people whose problematic finances, physical decrepitude or poor mental health would otherwise have meant living in much less satisfactory circumstances in many cases at considerably greater expense to their families or the public fisc. After caring for a dying friend, she chose this work as a vocation.

    
    

15. She cares about La Maison's residents and does much more for them than her duties as administrator require. She takes them shopping, to the beach and on various errands. She buys things for them and takes them to see their doctors. She lets Randall, who was declining while he was confined as a mental patient at the Pavilion, and has since recovered much of his long term memory, keep his piano in the house. She did as much for George, who is now dead, as anybody could have.

16. Doris Young, the ACLF outreach nurse at Lakeview finds that Ms. Dehmer has a ready ongoing knowledge of the health of Ms. Young's patients who reside at La Maison. At hearing, Donna Gilbert, a volunteer counselor for United Ministries, recalled the three homeless people Ms. Dehmer has taken into La Maison at her behest: a woman afflicted with AIDS, a "mentally handicapped" "gentleman" whom Ms. Dehmer occasionally dropped off downtown so he could visit with his friends while she did errands, and a penniless woman whose glaucoma had left her legally blind.

    
    

17. La Maison affords a "regular home environment" in the opinion of Ms. Gilbert, the volunteer counselor. Phillip McDaniel who leads Bible study Thursday nights finds the residents "a pretty happy bunch." La Maison is more attractive, in the opinion of Albert C. Jones, than two other ACLF facilities in the Pensacola area with which he is familiar. The building is kept clean and has no rat or roach problem. The lady with glaucoma testified the food was "fabulous," and Randall's brother, who comes from Mississippi for monthly visits, likes the food too.

    
    

    CONCLUSIONS OF LAW

    
    

18. Since HRS referred respondent's hearing requests to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1992 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1992 Supp.).

    
    

19. Under Section 400.414, Florida Statutes entitled "Denial, revocation, or suspension of license; imposition of administrative fine; grounds," respondent is authorized to

    
    

    deny, revoke, or suspend a license or impose an administrative fine in the manner provided in chapter 120. . . . .

    1. Any of the following actions by a facility or its employee shall be grounds for action

       by the department against a licensee:

       1. An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.

       2. The determination by the department that the facility owner or administrator is not of suitable character and competency, or that the owner lacks the financial ability, to

    provide continuing adequate care to residents, pursuant to the information obtained through s. 400.411, s. 400.417, or s. 400.434.

    . . .

    1. Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part.

    2. A confirmed report of abuse, neglect, or exploitation, as defined in s. 415.102, which has been upheld following a chapter 120 hearing or a waiver of such proceedings where the perpetrator is an employee, volunteer, administrator, or owner, or otherwise has access to the residents of a facility, and the

    administrator has not taken action to remove the perpetrator. A perpetrator may seek an exemption from disqualification through the procedures provided in s. 415.107(5)(b). No administrative action may be taken against the facility if the perpetrator is granted an exemption.

    
    

    "At the Chapter 120 hearing, the department shall prove by a preponderance of the evidence that its actions are warranted." Section 400.414(1), Florida Statutes (1991). If grounds for disciplinary action are proven, Section 400.419, Florida Statutes (1991) governs:

    
    

    1. In determining if a penalty is to be imposed and in fixing the amount of the

       penalty to be imposed, if any, for a violation, the department shall consider the following factors:

       1. The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or rules were violated.

       2. Actions taken by the owner or administrator to correct violations.

       3. Any previous violations.

       4. The financial benefit to the facility of committing or continuing the violation.

    2. Each violation shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The department shall indicate the classification of each violation on the face of the notice

    of the violation as follows:

    . . .

    (c) Class "III" violations are those condi- tions or occurrences related to the operation and maintenance of a facility or to the per- sonal care of residents which the department determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or II violations. A class III violation is subject to a civil penalty of not less than

    $100 and not exceeding $500 for each violation. A citation for a class III violation shall specify the time within which the violation

    is required to be corrected. If a class III violation is corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense.

    
    

    Except with respect to the violation regarding documenting a dietician's approval of menus, all Class III violations proven were corrected within the

    time specified. Although a number of violations recurred, none was more serious than Class III.

    
    

20. In proving the existence of confirmed abuse reports naming La Maison's administrator, AHCA established grounds for disciplinary action. But AHCA failed to prove that Ms. Dehmer had committed any crime or that she "is not of suitable character and competency." Evidence of arrests that did not result in convictions shows little, if anything, about her character. On the whole, indeed, the evidence showed her to be of exemplary character.

RECOMMENDATION

Upon consideration, it is RECOMMENDED:

1. That AHCA impose an administrative fine on La Maison in the amount of

   $100.00.

   
   

2. That AHCA grant La Maison a standard, unconditional license

DONE AND ENTERED this 14th day of September, 1993, in Tallahassee, Florida.

COPIES FURNISHED:

Michael O. Mathis Senior Staff Attorney

Department of Health and Rehabilitative Services

Office of Licensure

2727 Mahan Drive, Suite 103

Tallahassee, Florida 32308

Cheryl Johnson Howard, Esquire 700 South Palafox Street

Suite 1-A

Pensacola, Florida 32501

ROBERT T. BENTON, II

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 14th day of September, 1993.

Sam Power, Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-5238

La Maison's proposed findings of fact Nos. 1, 2, 3, 4, 8, 9, 14, 15, 18,

20, 23, 25, 26 and 27 have been adopted, in substance, insofar as material.

La Maison's proposed findings of fact Nos. 5 and 6 pertain to immaterial matters.

La Maison's proposed findings of fact Nos. 7, 10, 11, 13, 16, 17, 21 and 24 pertain to subordinate matters.

With respect to La Maison's proposed finding of fact No. 19, there was no showing that the other adult congregate living facilities had Class I or II deficiencies.

With respect to La Maison's finding of fact No. 12, the problems were corrected by the time of the second follow-up.

With respect to La Maison's proposed finding of fact No. 22, he had worked approximately one year.

AHCA's proposed findings of fact Nos. 1-12, 14, 29, 30, 32, 33, 35, 37, 38,

39, 41, 47, 55, 58, 59, 62, 65, 74, 79, 81, 82, 83, 85, 86, 88, 90, 100, 109 and

110 pertain to subordinate matters.

With respect to AHCA's proposed findings of fact Nos. 13, 15, 16, 42, 43,

44, 51, 52, 53, 56, 57, 60, 63, 66, 67, 68, 69, 70, 71, 75 and 76, the witness

indicated identified the documents indicated.

With respect to AHCA's proposed finding of fact No. 17, La Maison has not always been in compliance.

AHCA's proposed findings of fact Nos. 18, 19, 20, 21, 45, 54, 61, 77, 84,

89, 91, 104, 105, 106, 107 and 108 have been adopted, in substance insofar as material.

With respect to AHCA's proposed findings of fact Nos. 22 and 23, final orders upholding confirmed reports were entered but findings in this proceeding regarding underlying facts have not been predicated on the HRS orders.

With respect to AHCA's proposed findings of fact Nos. 24, 36, and 87, the arrest was immaterial; the only witness as to the magnitude of the problem said the leakage could have been covered with two shovelsful of earth; and Ms. Dehmer corrected the problem (at a cost of $13,000,00).

AHCA's proposed findings of fact Nos. 25, 26, 31, 49, 80, 101 and 102, pertain to immaterial matters.

With respect to AHCA's proposed findings of fact Nos. 27, 28, 34, 48, 50,

64, 72 and 73, the testimony recited was adduced.

With response to AHCA's proposed finding of fact No. 40, the records were not available to the inspectors because Ms. Dehmer was out of pocket and did not have the beeper she now carries. All violations were corrected by the time of the December 10, 1991 reinspection.

With respect to AHCA's proposed finding of fact No. 46, the pharmacist testified he effected the transfer to the unit dose packages.

With respect to AHCA's proposed finding of fact No. 78, signed menus were available for inspection on December 10, 1991.

With respect to AHCA's proposed finding of fact No. 92, the lack of supervision was the result of an employee's unauthorized absence; the employee did not work another day for La Maison.

With respect to AHCA's proposed finding of fact No. 93, the fact that M.K. died some months after his 20-hour stay at La Maison gives rise to no inference of cause and effect nor any inference as to his condition when he was at La Maison.

With respect to AHCA's proposed finding of fact No. 94, most of the residents were permitted to administer drugs to themselves.

With respect to AHCA's proposed finding of fact No. 95, all these documents were available on reinspection on December 10, 1991.

With respect to AHCA's proposed finding of fact No. 96, she testified that she referred elsewhere anybody whose needs she could not meet.

With respect to AHCA's proposed finding of fact No. 97, not all the deficiencies were authentic "repeat deficiencies". The "plumbing deficiencies," for example, ranged from the need for work costing $13,000.00 on the sewer, to La Maison's leaving a hot water handle off a shower to protect a resident from scalding himself.

With respect to AHCA's proposed finding of fact No. 98, the final orders were entered after the stipulation was executed.

AHCA's proposed findings of fact Nos. 99 and 111 are actually proposed conclusions of law.

With respect to AHCA's proposed finding of fact No. 103, the deficiencies were corrected by the time of the second follow-up inspection.

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. Some agencies allow a larger period within 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner, CASE NO: 91-5238

RENDITION NO: AHCA-93-139-FOF-OLC

vs.

LA MAISON (Marita Dehmer),

Respondent.

/ LA MAISON (Marita Dehmer),

Petitioner,

vs. CASE NO: 92-0480

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Agency for Health Care Administration (AHCA). The Recommended Order entered September 14, 1993, by Hearing Officer Robert T. Benton, II is incorporated by reference.

RULING ON EXCEPTIONS

Counsel excepts to the Hearing Officer's restatement of the facts established by Final Orders in Department of Health and Rehabilitative Services vs. M. D., Case Number 91-20PHC and Department of Health and Rehabilitative Services vs. M. D., Case Number 90-8088C wherein reports that Marita Dehmer neglected two residents at her facility were confirmed. I am satisfied that the principle of collateral estoppel is applicable here; therefore, the exception is granted. See Florida Bar vs. Vernell, 374 So2d 473 (Fla. 1979), Lora vs.

Department of State, 569 So2d 840 (3rd DCA 1990) and McGraw vs. Department of State, 491 So2d 1193 (1st DCA 1986). The facts found in the Final Orders are substituted for paragraphs 2 through 6 of the Recommended Order. For convenience the facts found in the Final Orders are set forth below:

CASE NUMBER 91-20PHC

1. M. D. is the owner, operator, administrator of La Maison, an adult congregate living facility (ACLF).

   
   

2. S. G. was brought to La Maison by his legal guardian for weekend respite care, such care beginning June 16, 1990.

   
   

3. S. G. suffered from a stage of Alzheimer's Disease.

   
   

4. On July 21, 1990, at approximately between 4:00 p.m. to 5:00 p.m., S.

   G. was found lying on the side of the road, approximately one-half mile east of the ACLF. S. G. was transported to the hospital emergency room where he received stitches to his right eye.

   
   

5. Angela Powers was the sole employee present in the ACLF on the day S.

   G. wandered away. Ms. Powers did not complete an employment application nor did she receive any instruction from M. D. with regard to what her job duties were to be.

6. Another employee, Lorraine Sampson, instructed Ms. Powers that her job duties were to clean on Wednesday and to cook three meals on Saturday and Sunday. Ms. Powers did not receive instructions on resident care and supervision. Ms. Powers was not made aware by M. D. or by any other employee of

   S. G.'s tendency to wander.

   
   

7. M. D. was aware of S. G.'s tendency to wander and failed to inform Ms. Powers of that, fact, knowing that Ms. Powers would be alone in the ACLF.

   
   

8. S. G. suffered extensive bruising and swelling of the right eye area.

   
   

9. By not informing Ms. Powers with respect to S. G.'s tendency to wander,

   M. D. exhibited a flagrant disregard to the needs of S. G. to be well supervised.

   
   

10. By not informing Ms. Powers that she had responsibilities for the supervision of residents or by not proving another staff member responsible for the resident care to work with Ms. Powers, M. D. failed to adequately supervise her residents.

    
    

11. On the eighteenth day of June 1991, Petitioner mailed the above Stipulation of Fact to Respondent requesting Respondent to agree to the above facts as the material facts in this case. To date Petitioner has not received a response from the Respondent.

CASE NUMBER 90-8088C

1. On June 30, 1990, Petitioner, Department of Health and Rehabilitative Services (HRS), received a report which has been identified as abuse report number 90-071099. The report indicated that a twenty-three year old male, M. K., who was a disabled adult by virtue of diabetes and loss of sight, had been neglected by Respondent, M. D., while M. K. was a resident in La Maison, an adult congregate living facility (ACLF) in which Respondent served as administrator. After investigating the matter, HRS classified the report as confirmed. The primary but not exclusive basis for the report was the conclusion by HRS that Respondent had failed to administer insulin to M. K. during his brief twenty-one hour stay at La Maison. After being notified that HRS had placed the report in the abuse registry, Respondent requested a formal hearing to contest the agency's action.

   
   

2. M. K. was hospitalized at Sacred Heart Hospital in Pensacola from June

   8 until June 29, 1990. The purpose of the hospitalization was to "improve control of (M. K.'s) diabetes and many of the complications that followed." According to his treating physician, Dr. Marvin Lee, III, M. K. needed to improve the control of his illness through medications and proper diet. It was believed by Dr. Lee that, even though M. K. was chronically ill and was in the "end-stage" of a progressive disease, by living in a facility that could prepare meals and dispense medications, his condition might improve. Accordingly, Dr. Lee made arrangement to have M. K. transferred to La Maison after his discharge from the hospital. Prior to this hospitalization, M. K. had been residing with his girlfriend, and Dr. Lee indicated that the patient had experienced problems in adhering to his diet and medication restrictions and had made frequent emergency room visits.

   
   

3. On June 29, 1990, M. K. was discharged from Sacred Heart Hospital in "stable" condition. He was picked up at the hospital by Respondent and

   transported to the facility. Prior to leaving the hospital, Respondent had spoken with Dr. Lee and agreed to take M. K. as a resident because her facility already had one diabetic resident who was being satisfactorily cared for. The testimony is partially in conflict as to what information Respondent was given by Dr. Lee. The testimony of Dr. Lee is accepted as being credible on this issue. According to Dr. Lee, Respondent was advised that M. K. required scheduled meals (2,000 calories/day) according to American Diabetic Association (ADA) criteria, twice daily monitoring of his blood glucose with a machine called Accucheck, and timely administering of various medicines, including insulin. In addition, the HRS health assessment form completed by Dr. Lee on June 25, 1990, for the patient's placement in the ACLF indicated that in response to the question "Does this individual's health status require care or convalescent care for more than seven consecutive days?" Dr. Lee checked the "yes" box. Finally, question 7 on the form indicated that M. K. required a 2,000 calorie, low protein diet pursuant to ADA criteria. Respondent was given a copy of the form at the time M. K. was discharged from the hospital.

   
   

4. Late on the afternoon of June 29, Dr. Lee instructed an employee to telephone Arnie's Valu-Rite Pharmacy in Cantonment, Florida concerning M. K.'s prescriptions. Respondent had suggested to Dr. Lee that his pharmacy be used since prescriptions were regularly delivered by that pharmacy to her facility. However, the pharmacist on duty was only given M. K.'s name, and he was not given the patient's address, telephone number or delivery instructions. When she left the hospital, Respondent was under the impression that the hospital would give the pharmacy instructions to deliver the drugs to La Maison.

   
   

5. The alleged victim arrived at La Maison shortly after 3:00 p.m. on June

1. Around 5:00 p.m., M. K.'s girlfriend, Paula, and mother arrived at the facility. Paula gave Respondent the Accucheck machine which she had been keeping at her apartment. Respondent, who was given training at the hospital on how to use the machine, immediately noticed that an essential part was missing, and thus the machines was inoperable. After advising both the girlfriend and mother that the part was missing, Respondent received assurances that the part would be promptly delivered by Paula.

   
   

   1. Around 4:30 p.m., Respondent telephoned the pharmacy in Cantonment and spoke with a pharmacist technician. However, the pharmacy had no record of M. K.'s prescription. Around 8:00 p.m., M. D. attempted to telephone Paula to ascertain when the missing Accucheck part would be brought to the facility. Paula was not home, and she did not return to her apartment the entire night. Because M. D. was on duty at the facility that evening, she attempted to thereafter speak to Paula by telephone on a number of occasions throughout the night but was unsuccessful.

      
      

   2. Around 8:30 p.m., M. D. again telephoned the pharmacy but by now it was closed. She then telephoned M. K.'s father and advised him that she could not operate the machine and had no prescriptions. However, she received no assistance. Consequently, M. K.'s blood sugar levels were never checked and he received no medication that entire evening.

      
      

   3. At hearing, Respondent claimed she advised her cook to prepare a special diet meal for M. K.'s supper on the evening of June 29. However, the cook, Angela L. Powers, denied receiving such instructions or preparing a special meal. Powers' testimony is accepted as being credible on this disputed issue. Powers also recalled that when M. K. first arrived at the facility, he requested a drink and Powers, who did not know he was diabetic until the following morning, gave him two glasses of sweetened Kool-Aid.

   4. During the night, M. K. exhibited no signs of medical distress but was taken to the bathroom on three occasions. He eventually went to sleep around 4:00 a.m. According to Respondent, he appeared to be quite upset about leaving his girlfriend.

      
      

   5. Respondent went off duty at 7:00 a.m. the next morning while M. K. was asleep. At 8:30 a.m., Respondent again telephoned the pharmacy from her home (which was next door to the facility) and learned the prescriptions had been telephoned in by the hospital the previous day, but the pharmacy had no delivery instructions or telephone contact number. In addition, the pharmacy would not fill the prescription except for cash payment because M. K.'s medical card (Medicaid) was used up for that month. However, the pharmacist advised Respondent that an adequate drug supply had been previously given to Paula by another drug store during the preceding weeks and that Paula should have had a sufficient amount of drugs for M. K.'s use. Respondent did not offer to purchase the drugs with her own funds. Although Respondent attempted to contact Paula by telephone one more time, she was unsuccessful. Consequently, M. K. received no insulin that morning and he did not have his blood sugar level checked.

      
      

   6. Around 11:00 a.m., a nurse visited the ACLF to check on M. K. This was pursuant to an instruction given by Dr. Lee before M. K. was discharged from the hospital. The nurse thereafter had M. K. transported to Sacred Heart Hospital by ambulance where he remained for most the day. His medical records indicate that upon re-admission, M. K.'s blood sugar level was 594, a level which is considered high and which according to Dr. Lee required immediate medical intervention. Around 11:00 p.m. that evening, he was discharged from the hospital in stable condition.

      
      

   7. After failing to get a complete Accucheck from Paula, Respondent did not take steps to obtain another testing device because she contended she did not know M. K.'s diabetic condition was life-threatening, and because her other diabetic resident did not use the machine, she did not consider it that important. She gave no valid explanation for failing to obtain the necessary medications from an alternative source during M. K.'s stay at the facility. However, she stated she would have called an ambulance had M. K.'s condition deteriorated.

      
      

   8. Respondent cannot be faulted because Paula failed to return with the missing part, the pharmacy was not given instructions to deliver the drugs, and in any event the pharmacy would not fill the prescriptions because the patient's free supply of drugs had been exhausted for that month. However, by failing to take steps to obtain another machine and the necessary medications during his brief stay, or to contact the hospital from which M. K. had been discharged to seek advice, and failing to give explicit instructions to her cook regarding the victim's dietary needs, Respondent, as caregiver, failed to give M. K., a disabled adult, the care and services that a prudent person would deem to be necessary to maintain his physical health and well being. Given M. K.'s medical condition, such omissions on the part of Respondent could reasonably be expected to result in serious physical harm to the victim. (This concludes the findings of fact from Case Numbers 91-20PHC and 90-8088C).

Counsel excepts to the findings in paragraph 4 and 5 that menus were reviewed and approved by a dietician. Counsel maintains that the findings were supported only by hearsay because the dieticians did not testify. Such

testimony is not the exclusive means of supporting such findings. The exceptions are denied.

Counsel maintains that the finding in paragraph 13 that as of the inspection of December 10, 1991, violations seen earlier in the year were corrected is inconsistent with the finding in paragraph 19 that a menu violation was not corrected. The finding in paragraph 13 pertains to the December 10, 1991, inspection. Because there was testimony as to other inspections there is no inconsistency. The exception is denied.

Counsel excepts to the finding in paragraph 17 that La Maison provides a regular home environment on the grounds that such a finding is a conclusion of law. The exception is denied.

Counsel exceptions to the Hearing Officer's implicit conclusion in paragraph 19 that the imposition of administrative discipline is governed exclusively by Sections 400.414 and 430.419, Florida Statutes. Because confirmed reports of neglect of her residents were proved in this proceeding Section 415.107(5)(b), Florida Statutes (Supp. 1992) controls. The pertinent language is as follows:

The department shall, upon receipt of an application of a person applying for an initial license or renewal of a license for a facility to provide day or residential care for aged persons or disabled adults, search its central abuse registry and tracking system for the existence of

a confirmed report of child or adult abuse, neglect, or exploitation ... on an owner or an administrator who is directly involved in the onsite day-to-day care of the residents of the facility . . . Such a report shall disqualify an individual from licensure, but the department may grant an exemption from disqualification if the department has clear and convincing evidence to support a reasonable belief that the person is of

good character. The exception is granted.

FINDINGS OF FACT

The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where inconsistent with the Ruling on Exceptions.

CONCLUSIONS OF LAW

The agency hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the Ruling on Exceptions. Because Ms. Dehmer, the owner and administrator of La Maison, has had two reports of neglect confirmed against her, and there is no assertion or evidence that she sought and obtained exemptions from the disqualification imposed by Section 415.107(5)(b), Florida Statutes (Supp. 1992), her application for renewal of her license to operate La Maison must be denied. 1/

Even if there was discretion to impose a lesser sanction for the violations established in this proceeding, I could not agree with the Hearing Officer's conclusion that a nominal penalty would be appropriate. Based on a review of the complete record, I am satisfied that the lengthy history of rule violations and administrative fines, and the two confirmed neglect cases are sufficient to justify denial of licensure. Lesser sanctions have failed.

Based upon the foregoing, it is

ADJUDGED, that the application of Marita Dehmer, doing business as La Maison, for renewal of her license to operate an adult congregate living facility be DENIED.

DONE and ORDERED this 18th day of October, 1993, in Tallahassee, Florida.

Douglas M. Cook, Director

Agency or Health Care Administration

ENDNOTE

1/ Exemption is a matter of defense which must be established by a person who is named as the perpetrator in a confirmed report of neglect. See Wright vs. State, 409 So2d 1183, 1185 (4th DCA 1982)

Copies furnished to:

Robert T. Benton, II Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Michael O. Mathis, Esquire Senior Attorney

Agency for Health Care Administration

325 John Knox Road, Suite 301 Tallahassee, Florida 32308

Cheryl Johnson Howard, Esquire

700 South Palafox Street, Suite 1-A Pensacola, Florida 32501

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named people by U.S. Mail this 18th day of October, 1993.

R. S. Power, Agency Clerk State of Florida, Agency for Health Care Administration

325 John Knox Road

The Atrium Building, Suite 301 Tallahassee, Florida 32303

(904)922-3808

power/10-8-93

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-005238

Orders for Case No: 91-005238