STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5654

)

LEISURE LIVING, )

(Willie Mae Johnson, Owner), )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above styled case on February 9, 1993, in Lakeland, Florida.

APPEARANCES

For Petitioner: Thomas W. Caufman, Senior Attorney

Agency for Health Care Administration Office of Licensure and Certification 7827 N. Dale Mabry Highway

Tampa, Florida 33614

For Respondent: Not present or represented

STATEMENT OF THE ISSUE

Whether Respondent failed to timely correct discrepancies noted during the survey of January 31, 1992 and, if so, what penalty is appropriate.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 24, 1992, the Agency for Health Care Administration (AHCA), Petitioner, seeks to impose administrative fines on Willie Mae Johnson owner of the ACLF called Leisure Living. As grounds therefore it is alleged that Respondent:

1. failed to assure that residents were afforded an opportunity to plan menus;

2. failed to assure that menus were reviewed by a Registered Dietitian or Dietitian Technician on a regular basis;

3. failed to assure meal patterns were available and on file for all therapeutic diets ordered by a physician; and

4. failed to document that a Registered Dietitian or Dietitian Technician performed an annual nutritional

review of the regular and therapeutic diets; all of which violated Section 400.419, Florida Statutes and Rule 10A- 5.20, Florida Administrative Code.

Upon receipt of the Administrative Complaint Ms. Johnson requested an administrative hearing to challenge the allegations in the Administrative Complaint and these proceedings followed. At the hearing Petitioner called one witness and one exhibit was admitted into evidence. Respondent was not present and presented no evidence. After considering all evidence presented I submit the following.

FINDINGS OF FACT

1. During the Annual Survey of Respondent ACLF on January 31, 1992 numerous discrepancies were found and at the exit interview Respondent was notified of these discrepancies and given a time frame in which to correct these discrepancies.

   
   

2. In a follow-up inspection on April 29, 1992 more than one month later than Respondent was given to correct the discrepancies, the following deficiencies reported on the January 31, 1992 survey still existed.

   
   

   1. Residents were not provided the opportunity to plan the menus;

   2. Menus were not reviewed by a registered or licensed dietitian on a regular basis;

   3. The therapeutic diets provided did not document on the menu the food items which enable residents to comply with their therapeutic diet; and

   4. Respondent failed to have an annual nutritional review by a registered or licensed dietitian.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings.

   
   

4. Chapter 400 Part II, Florida Statutes provides for the licensing and regulation of Adult Congregate Living Facilities (ACLF).

   
   

5. Section 400.23 authorizes the AHCA to promulgate rules to carry out the purposes of this chapter. Section 400.419 established penalties for violations of these rules by an ACLF with the penalty ranging from $5,000 for a Class I violation to $100 for a Class III violation. A Class III violation is subject to a 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.

   
   

6. The discrepancies noted on the survey are all Class III discrepancies.

   
   

7. Rule 10A-5.020 sections of which Respondent is charged with violating provides in pertinent part: (2)(n) ... for facilities with a licensed capacity of 16 or fewer residents all matters pertaining to food services shall comply with Rule 10A- 5.020(2)(c),(e),(f),(g),(h),(i) and... .

8. Respondent's facility is licensed for fewer than 16 residents.

   
   

9. Rule 10A-5.020(2)(c) provides in pertinent part that at ACLF all menus shall be reviewed by a Registered Dietitian or a Dietetic Technician annually. Respondent violated this provision and did not correct the deficiency within the time specified.

   
   

10. Rule 10A-5.020(2)(e) provides in pertinent part that therapeutic diets shall be prepared and served as ordered by the physician. Respondent violated this provision and failed to correct the deficiency within the prescribed time.

    
    

11. Section 10A-5.020(2)(g) provides in pertinent part:

    
    

    The Recommended Dietary Allowance or RDA shall be met by offering a variety of foods adopted to the food habits, preferences and physical abilities of the residents and prepared by the use of standard recipes. For facilities with a licensed capacity of 16 or fewer, standardized recipes are not required, however, therapeutic and regular menus, menus with substitutions and meal and snack schedules shall be kept on file for 6 months and shall be accessible to residents. Portion sizes shall be indicated on the menus or on a separate sheet.

    
    

12. This rule does not specifically require the residents be afforded an opportunity to plan menus which the Administrative Complaint charges Respondent with failing to do. Punitive provisions of statutes and rules are strictly construed against the agency. Accordingly, Respondent must be found not guilty of this violation.

    
    

13. Charge 3(d) in the Administrative Complaint alleges that Respondent failed to document that a registered or licensed dietitian performed an annual nutritional review of the regular and therapeutic diets. This is essentially the same offense alleged in the charge 3(b) and results from the same omission on the part of the Respondent, viz that the menus were not reviewed by a registered or licensed dietitian on an annual basis. Respondent should not be punished twice for the same offense.

    
    

14. From the foregoing it is concluded that Respondent failed to timely correct deficiencies as noted in charges 3(b) and 3(c) of the Administrative Complaint.

RECOMMENDATION

RECOMMENDED that Willie Mae Johnson d/b/a Leisure Living be assessed an administrative fine of $250 each for the two violations for a total administrative fine of $500.

RECOMMENDED this 3rd day of March, 1993, at Tallahassee, Florida.

K. N. AYERS 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 3rd day of March, 1993.

COPIES FURNISHED:

Thomas W. Caufman, Senior Attorney Agency for Health Care Administration Office of Licensure and Certification 7827 North Dale Mabry Drive

Tampa, Florida 33614

Willie Mae Johnson, Owner Leisure Living

401 S.W. 9th Avenue Mulberry, Florida 33860

Sam Power, Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

1. John Knox Road Tallahassee, Florida 32303

   
   

   Harold D. Lewis, Esquire

   Agency for Health Care Administration The Atrium, Suite 301

2. John Knox Road Tallahassee, Florida 32303

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.

Docket for Case No: 92-005654

Orders for Case No: 92-005654