STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ) ADMINISTRATION, )
)
Petitioner, )
)
vs. ) CASE NO. 93-5515
) PDRL NO.: 8-93-453 ACLF
DORA RETIREMENT HOME, )
)
Respondent. )
) AGENCY FOR HEALTH CARE ) ADMINISTRATION, )
)
Petitioner, )
)
vs. ) CASE NO. 94-4101
) PDRL NO.: 8-93-517 ACLF
DORA RETIREMENT HOME, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings held a formal hearing in this matter on November 9-10, 1994, in Sarasota, Florida.
APPEARANCES
For Petitioner: Linda L. Parkinson, Esquire
Division of Health Quality Assurance Agency For Health Care Administration
400 West Robinson Street, Suite S-309 Orlando, Florida 32801
For Respondent: William Witt, Esquire
4625 East Bay Drive, Suite 210
Clearwater, Florida 34624 STATEMENT OF THE ISSUES
Case No. 93-5515 (PDRL NO.: 8-93-453 ACLF)
Should Respondent's license to operate an Adult Congregate Living Facility (ACLF) be denied based on the allegations contained in the denial letter of August 12, 1993, as amended by order dated September 23, 1994?
Case No. 94-4101 (PDRL NO.: 8-93-517 ACLF)
Should an administrative fine be assessed against the Respondent based on the allegations contained in the Administrative Complaint dated April 28, 1994?
PRELIMINARY STATEMENT
By letter dated August 12, 1993, the Agency For Health Care Administration (Agency) in Case No. 93-5515 (PDRL NO.:8-93-453 ACLF) denied the Respondent renewal of its license to operate its ACLF pursuant to Section 400.414(21), Florida Statutes, and Chapter 10A-5, Florida Administrative Code, for multiple and repeated deficiencies regarding certain resident standards which posed a threat to the health, safety, and welfare of the facility's residents. By letter dated September 11, 1993, the Respondent denied the allegations and requested a formal hearing. By letter dated September 21, 1993, the Agency referred the matter to the Division of Administrative Hearings (Division) for the assignment of a hearing officer and the conduct of a hearing. The matter was scheduled for hearing, but was continued to allow settlement negotiations to go forward.
On April 28, 1994, the Agency issued an administrative complaint in Case No. 94-4101 (PDRL NO.: 8-93-517 ACLF) alleging 28 deficiencies that were either repeat deficiencies or deficiencies that were not corrected at subsequent follow-up or appraisal visits, and advising the Respondent that the Agency intended to impose administrative fines for those deficiencies. Respondent timely requested a formal hearing. By letter dated June 2, 1994, the Agency referred the matter to the Division for the assignment of a hearing officer and the conduct of a hearing.
Case Nos. 93-5515 and 94-4101 were consolidated for hearing by order dated August 17, 1994. By order dated September 23, 1994, the denial letter in Case No. 93-5515 was amended by adding an alleged violation of a moratorium on admissions imposed on the Respondent as an additional ground for the denial of the renewal of Respondent's license to operate an ACLF. The matter was then rescheduled for hearing on November 9-10, 1994.
In support of its allegations, the Agency presented the testimony of Joyce Stobbs, Charles Hebbring, Linda Harkin and Martha Bohn. Agency's exhibits 1 through 8 were received as evidence. The Respondent presented the testimony of Idora Rawlings. Respondent's exhibits 1 through 13, 15 and 16 were received as evidence. Respondent's exhibit 14 was withdrawn.
A transcript of this proceeding was filed with the Division on December 1, 1994. An order granting Respondent's motion for extension of time to file proposed recommended order was entered on December 12, 1994, granting an extension time until December 21, 1994 with the understanding that the time constraint for entry of Recommended Order imposed under Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code. An extension of the time from December 21, 1994 until December 28, 1994, was verbally granted during a telephonic hearing on December 21, 1994. The parties timely filed their proposed recommended orders under the extended time frame. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the evidence presented at the hearing, the following relevant findings of fact are made:
The Respondent, Dora Retirement Home, is located at 4727 Brooksdale Drive, Sarasota, Florida. At all times material to this proceeding, Respondent has been licensed by the Agency to operate a ACLF (facility) at 4727 Brooksdale Drive, Sarasota, Florida, housing a maximum of six residents. Idora Rawlings is and has been the owner and operator of the facility since its initial licensure in March, 1990. By letter dated August 12, 1993, the Agency denied Respondent relicensure to operate the facility the license for which was scheduled to expire on August 22, 1993. Respondent is presently operating under a conditional license pending the disposition of this administrative proceeding in accordance with Section 400.417(2), Florida Statutes.
On January 29, 1991, the Agency reported the results of its January, 1993, annual survey of the facility and cited the Respondent for several deficiencies. These deficiencies were corrected within the specified time allowed by the Agency. However, some of the same type deficiencies were cited in the January 19, 1993, annual survey that is alleged not to have been corrected in either the March 22, 1993, or the June 11, 1993, follow-up visits or the January 10, 1994, appraisal visit.
In January 1993, the Agency performed an annual survey of the facility and reported the results on January 19, 1993. Several deficiencies were cited by the Agency in this annual survey. The Agency provided the Respondent with a specified time within which the alleged deficiencies were to be corrected. It is alleged that some of the deficiencies were not corrected within the specified time allowed by the Agency.
Listed below are the Class III deficiencies that are alleged in the administrative complaint as violations of statutes or rules and the findings regarding those deficiencies. For convenience, the alleged deficiencies and the findings of fact concerning those deficiencies are listed in the same alphabetical order {(a) through (bb)} as in the administrative complaint.
The facility failed to provided proof that liability insurance was maintained.
It is alleged that this deficiency was cited at the January 29, 1991, annual survey, was recited at the January 19, 1993, annual survey and is a repeat deficiency.
The Respondent had certificates of insurance for its liability insurance issued on June 18, 1990 and January 30, 1991, for the period of July 27, 1990 - July 27, 1991, and certificates of insurance for liability insurance
issued on August 19, 1992, and January 20, 1993, for the period of July 27, 1992
- July 27, 1993.
It is unclear whether the Agency requested and was not provided copies of the certificates of insurance at the 1991 and 1993 annual surveys or whether the Agency was just unable to locate copies of the certificates of insurance in the Respondent's files during the 1991 and 1993 annual surveys. In either case, the Respondent had certificates of insurance and the facility was insured during the applicable periods.
The Agency failed to establish that a deficiency existed at the 1991 annual survey or the 1993 annual survey or that there was a repeat deficiency.
The facility failed to post the last Agency inspection report.
It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit.
At the time of the annual survey in January 1993, and the March 1993, follow-up visit, Respondent had a copy of the last Agency inspection report (issued April 1991) in a file folder with other facility papers. These papers, including the latest Agency inspection report, were available for inspection by the residents and the public. However, the latest inspection report was not posted separately in a prominent location.
The Agency established that a deficiency did exist in this regard.
The facility failed to maintain the admission/discharge records in a complete manner.
It is alleged that this deficiency was cited at the January 19, 1991, annual survey, was recited at the January 19, 1993, annual survey, was recited at the June 11, 1993, follow-up visit, was recited at the January 19, 1994, appraisal visit and is a repeat deficiency.
The Summary of Deficiencies for the January 29, 1991, and January 19, 1993, annual surveys indicate that the deficiencies cited at those surveys were corrected within the specified time allowed by the Agency. The Summary of Deficiency for the follow-up visit of June 11, 1993, does not provide a specified time within which the Agency allows the facility to correct the deficiency cited at the June 11, 1993, follow-up visit.
The cited deficiencies concern the unavailability of admission/discharge records, the lack of required resident information in the admission/discharge records that were available and the failure to post admissions.
At all times material to this proceeding, Respondent kept a separate register of the admission/discharge of the facility's residents which was available to the Agency for its inspection. Some of the information contained in the current register had been transferred to the current register from the old register. The reason for transferring the information was the new forms furnished by the Agency for this purpose better accommodated the information required by the Agency to be on the forms. In transferring the information from the previous register to the current register certain errors and omissions did occur, along with some of the admissions and discharge dates not being in chronological order.
The January 19, 1994, appraisal visit alleges that two of the six residents present in the facility at the time of the January 19, 1994, appraisal visit were not listed in the register. The Agency failed to identify which two of the six residents present were not listed in the register. The names of the six residents present in the facility on December 6, 1993, with no discharge date, were listed in the register. There was no evidence that the Respondent had added any names to the register after the January 19, 1994, appraisal visit.
As to the January 29, 1991, and the January 19, 1993, annual surveys and the June 11, 1993, follow-up visit, the Agency failed to establish that Respondent's admission/discharge records were not maintained in a complete manner, notwithstanding the testimony of the Agency's witness to the contrary. While the Respondent's admission/discharge register was somewhat "sloppy", the evidence shows that the register contained the required information.
As to the January 19, 1994, appraisal visit, the Agency failed to establish or identify which, if any, of residents present in the facility at the time of the January 19, 1994, appraisal visit were not listed in the register.
The Agency failed to establish that a deficiency existed in this regard at the 1991 or 1993, annual survey, the June 11, 1993, follow-up visit or the January 19, 1994, appraisal visit or that there was a repeat deficiency.
The facility failed to maintain a record of resident weights at admission and semiannually thereafter.
It is alleged that this deficiency was cited at the January 29, 1991, annual survey, recited at the January 19, 1993, annual survey and is a repeat deficiency.
Respondent failed to record either the weight or the height of some of the residents admitted before the January 29, 1991, annual survey. However, this deficiency was corrected at or before the March 22, 1991, follow-up visit. There is insufficient evidence to show that Respondent failed to record the weight and height of any resident admitted between the January 29, 1991, annual survey and the January 19, 1993, annual survey, notwithstanding the testimony of the Agency's witnesses to the contrary.
The Agency failed to establish or identify which, if any, resident that was admitted to or living in the facility during the applicable times that required or received individual assistance with their activities of daily living (ADL) as defined in Rule 10A-5.0131(2)(c), Florida Administrative Code.
Likewise, the Agency failed to establish or identify which, if any, of the residents whose weight Respondent failed to record semiannually were receiving individual assistance with their ADL's.
The Agency has failed to establish that a deficiency existed at the January 29, 1991, annual survey or the January 19, 1993, annual survey or that it was a repeat deficiency.
The facility did not have a disaster plan and did not have the plan coordinated with the local disaster preparedness authority.
It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit, was recited at the January 19. 1994, appraisal visit and is a repeat deficiency.
The Respondent had a written disaster plan but the plan had not been coordinated with or reviewed by the local disaster preparedness authority at any of the visits by the Agency in January and March, 1993, or January, 1994.
Although the local authority was slow to act on these matters, the Respondent failed to act timely or in a responsible manner in initially presenting the plan or making the changes required by the authority.
The Agency established that the alleged deficiency existed at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit and still existed at the January 19, 1994, appraisal visit, and it was a repeat deficiency.
The facility did not develop written job descriptions for staff who provide personal services.
It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit.
Although some of the Respondent's staff did not have written job descriptions at the time of the January 19, 1993, annual survey or at the March 22, 1993, follow-up visit, the Agency failed to establish or identify which, if any, of the facility's employees without written job descriptions were providing personal services to the residents during the applicable time or which residents required assistance with personal services. Furthermore, the Agency failed to establish that the staff without any job descriptions at the January 19, 1993, annual survey was the same staff without job descriptions at the January 24, 1993, follow-up visit.
The Agency failed to establish that a deficiency existed in this
regard.
The facility did not maintain required staff documentation and
qualifications in the personnel record.
It is alleged that this deficiency was cited at the time of the June 11, 1993, follow-up visit and was not corrected at the January 10, 1994, appraisal visit.
The Agency failed to advise the facility in the Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected.
The facility was basically a one person operation. Idora Rawlings, being the owner and administrator, was usually that person. However, other personnel was hired from time to time. Although there was at least a part-time employee working at the time of the June 11, 1993, follow-up visit or had worked previously, this employee was never identified by the Agency and it was never established that this employee's personnel record did not contain the required staff documentation and qualifications. Other than the administrator, the Agency failed to identify any other part-time or full-time employees that had previously worked or were working at the facility at the time of the June 11, 1993, follow-up visit or at the January 19, 1994, appraisal visit.
While the personal records of employees of the facility were sketchy, the Agency failed to establish which of those personnel records failed to meet the required staff documentation and qualifications, and thereby result in a deficiency.
The Agency failed to establish that a deficiency existed in this
regard.
The administrator did not ensure that staff providing assistance
with personal hygiene received training in personal hygiene.
It is alleged that this deficiency was cited at the January 19, 1993, annual survey, and was not corrected at the March 22, 1993, follow-up visit.
As stated above, the facility was a one person operation and the administrator was usually that person. Other than the administrator, the Agency failed to establish or identify which, if any, of the facility's employees were furnishing residents assistance with personal hygiene. Likewise, the Agency failed to establish or identify which, if any, of the facility's employees had not received training in personal hygiene.
The Agency failed to establish that a deficiency existed in this
regard.
The administrator did not ensure that each staff person that
comes into contact with potentially infectious materials is trained in infection control procedures for blood and other body fluids.
It is alleged that this deficiency was cited at the January 19, 1993, annual survey, and was not corrected at the March 22, 1993, follow-up visit.
The Agency failed to establish that any of the facility's resident posed a threat of exposing any staff member to potentially infectious materials.
As stated above, the facility was a one person operation and the administrator was usually that person. Other than the administrator, the Agency failed to establish or identify which, if any, of the facility's employees were required by their employment to expose themselves to any potentially infectious material that may be present in the facility. Likewise, other than the administrator, the Agency failed to establish or identify which, if any, of the facility's employees that were required to be trained in infection control procedures for blood and other body fluids had not been trained.
The Agency failed to establish that a deficiency existed in this
regard.
Each person admitted to the facility was not covered by a
contract executed at admission or prior thereto.
It is alleged that this deficiency was cited at the January 19, 1991, annual survey, was recited at the January 19, 1993, annual survey and is a repeat deficiency.
The Agency failed to establish and identify which, if any, of the residents that did not have a properly executed contract prior to, or at the time of admission. The Agency's witnesses could not identify any resident by name that did not have a properly executed contract prior to, or at the time of admission.
The Agency failed to establish that a deficiency existed in this regard at any time or that there was a repeat deficiency.
Each resident had not been examined by a health care provider within sixty (60) days prior to or thirty (30) days after admission.
It is alleged that this deficiency was cited in the January 19, 1991, annual survey, recited at the January 19, 1993, annual survey and is a repeat deficiency.
The Health Assessment for Adult Congregate Living Facilities, HRS-AA Form 1823 (health assessment) is the form completed by the health care provider upon completion of the medical examination and forwarded to the ACLF facility to assist the administrator in determining the appropriateness of admission.
Lawrence C. Huffman admitted to the facility on December 23, 1990, had an undated health assessment. Martin C. Huber admitted to the facility on May 6, 1990, had a health assessment dated December 11, 1990, completed approximately seven months after admission. Pearl Rauchat admitted to the facility on October 9, 1990 had a health assessment dated November 19, 1990, completed 41 days after admission. This deficiency was corrected on March 7, 1991, well within the specified time for correction set by the Agency.
Fred Dutt admitted July 10, 1992 had a health assessment dated August 14, 1992 - December 10, 1992, completed 35 days after admission. The Agency's presented no evidence of any other resident whose health assessment was untimely at the January 19, 1993, annual survey or at any other time..
The facility is required to rely on the health care provider to timely examine the resident, and to prepare and file the health assessment. Dutt's health assessment being only five days over due does not constitute a deficiency.
Although the Agency established a deficiency in January, 1991, it was timely corrected, and there was no deficiency established in January, 1993.
Therefore, there is no repeat deficiency.
The administrator did not ensure that the criteria for continued residency was followed.
It is alleged that this deficiency was cited at the January 19, 1993, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency.
The Agency failed to establish or identify which, if any, of the residents where the Respondent failed to follow the criteria for continued residency, notwithstanding the testimony of the Agency's witnesses.
The Agency failed to establish that a deficiency existed in this regard or that there was a repeat deficiency.
The facility did not insure that staff knew how to implement the disaster plan.
It is alleged that this deficiency was cited at the January 29, 1991, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency.
Other than the administrator, the Agency failed to establish that there were other employees prior to or at the time of the January 29, 1991, survey or that the Respondent had failed to insure that the staff, if there were any, knew how to implement the disaster plan.
Although there may have been staff, other than the administrator, working at the facility between the January 29, 1991, annual survey and the January 19, 1994, appraisal visit, the Agency failed to establish or identify which, if any, of the staff did not know how to implement the disaster plan.
The Agency failed to establish that a deficiency existed in this regard or that there was a repeat deficiency.
The administrator did not ensure that the staff certified in first aid are present in the facility at all times.
It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit.
The Agency failed to establish or identify which, if any, of the facility's employees that were not certified in first aid were left in charge of the facility.
During the applicable time, the administrator and a part-time employee were the only employees of the facility. Both the administrator and the part- time employee had been certified in first aid. Either the administrator, the part-time employee or both were always present at the facility.
The Agency failed to establish that a deficiency existed in this
regard.
The administrator did not ensure that the staff have
documentation of freedom from communicable diseases.
It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit or the January 19, 1994, appraisal visit.
The Agency failed to establish or identify which, if any, of the staff did not have documentation of freedom from communicable diseases. During the applicable period there was only one part-time employee and the administrator working at the facility. The Agency failed to establish that either the part- time employee or the administrator did not have documentation of freedom from communicable diseases.
The Agency failed to establish that a deficiency existed in this
regard.
The administrator had not designated in writing a staff person to
be in charge during the temporary absence of the administrator.
It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit.
During 1993, Evelyn Rhoden was designated in writing by the administrator as the staff member to be in charge of the facility in the administrator's absence. This authorization was posted on the bulletin board near the telephone in the small dining room by the kitchen. During 1994, Chistine St. Amand was designated in writing by the administrator as the staff member to be in charge of the facility in the administrator's absence. This
authorization was posted on the same bulletin board as the 1993 written authorization. The authorizations were available to the Agency's surveyors during the applicable surveys and follow-ups.
The Agency failed to establish that a deficiency existed in this
regard.
The administrator did not ensure that the staff supervise the
self-administered medications as specified by procedures spelled out in the regulations.
It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and was not corrected at the time of the January 19, 1994, appraisal visit.
The Agency failed to advise the facility in the June 11, 1993, Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected.
The Agency failed to establish or identify which, if any, of the facility's residents required supervision of self-administered medication and thereby require the facility to document staff supervision of self- administered medication.
The Agency failed to establish that a deficiency existed in this
regard.
The administrator did not ensure that the staff restricted the
assistance with self-administered medication process as allowed in the regulations.
It is alleged that this deficiency was cited at the January 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit, was recited at the January 19, 1994, appraisal visit and is a repeat deficiency.
It appears that this is the same deficiency as listed in 4(q) above. However, in any event the Agency has failed to establish or identify which, if any, of the facility's staff did not restrict the assistance with the self- administered medication process as allowed by the regulations.
The Agency failed to establish that a deficiency existed in this regard or that there was a repeat deficiency.
The administrator did not hire or ensure that only licensed staff administered medications.
It is alleged that this deficiency was cited in the January 19, 1993, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency.
As to the deficiency cited at the January 19, 1993, annual survey, the Agency failed to establish the identity of patient #5 whose health assessment indicated she needed her medications administered or that staff was administering medication to patient #5.
As to the deficiency cited at the January 19, 1994, appraisal visit, the administrator who is not licensed to administer medication admitted to popping the medication out of individual bubble packs into individual souffle cups for several of the residents who would then take the medication or would place the souffle cups on a cabinet shelf in front of the resident's name on the shelf to be taken at a later time - such as lunchtime. The Agency failed to establish or identify which, if any, of these residents required their medication to be administered as oppose to those who could self-administer medication, with or without supervision. There was insufficient evidence to show that the administrator was administering medication.
The Agency failed to established that a deficiency existed in this regard at the January 19, 1993, annual survey or the January 19, 1994, appraisal visit.
The administrator did not ensure that no prescription drug is kept by the facility unless it had been legally dispensed and labeled for the resident for whom it was prescribed.
It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was recited at the June 11, 1993, follow-up visit, not corrected at the January 19, 1994, appraisal visit and is a repeat deficiency.
As to the deficiency cited at the January 19, 1993, annual survey, the Agency has established that a month's supply of vitamins for Viola Shupp had been placed in a "daily pill container" by the resident's daughter. This "daily pill container" was placed in the same plastic box as prescription medication containers in the cabinet where the Respondent kept medication. The prescription medication containers were properly labeled with the required information. This deficiency was corrected within the time specified by the Agency for correction.
As to the deficiency cited at the June 11, 1993, follow-up visit, the Agency establish that the centrally stored medication was not locked up. The Respondent admitted that the centrally stored medication included such items as vitamins, merthiolate, dramamine, Shaklee alfalfa, ointments, creams, tinctures, and two prescription medications (Synthroid, 0.5mg and Cipro) in containers with prescription labels with the required information for resident Henry Shadle.
Other than the Synthroid and Cipro, none of the other containers had prescription labels. However, there was no evidence that any of the other medications (vitamins, ointments, merthiolate, etc.) were prescribed medications. None of the other medications (vitamins, ointments, merthiolate, etc.) were labeled to identify the resident owning the medication.
The Agency did not advise the facility in the June 11, 1993, Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected.
As to the deficiency cited at the January 19, 1994, appraisal visit, the Agency has shown that five souffle cups of medication without covers or prescription labels were on a shelf in an unlocked cabinet. The souffle cups had been placed on a shelf by the patient shortly before time to take the medication after the administrator has assisted the residents in getting the medication out of bubble packs as set forth in 4(s) above.
The Agency established that (1) a deficiency existed at the January 19, 1993, annual survey but was timely corrected, (2) a similar deficiency existed at the follow-up visit of June 11, 1993 and, (1) a similar deficiency existed at the annual survey of January 19, 1994. The Agency has established a repeat deficiency.
The administrator did not ensure that no person other than the pharmacist shall alter a prescription label, and transfer medications from one storage container to another. Medication orders changed by the physician must be re-labeled by the pharmacist. The administrator did not make every effort to ensure that residents whose medications are supervised by the facility are refilled in a timely manner.
It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and was not corrected at the January 19, 1994, appraisal visit.
The Agency failed to advise the facility in the Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected.
There was no evidence that any prescription label on any medication container for any resident had been altered in any fashion at any time. There were some plastic baggies containing non-prescription medication or the individual container of the non-prescription medication that had written instructions or the name of the resident on them.
During the January 19, 1994, appraisal visit a plastic box was found to contain several prescription medications that were in properly labeled containers. However, there was a "daily pill container" in the plastic box which contained a month's supply of vitamins. The vitamins in the "daily pill container" had been placed there by the resident's daughter. The "daily pill container", along with the individual prescription medication containers had been placed in the plastic box and placed in the facility's medication cabinet by the resident's daughter.
The Agency failed to establish or identify any medication order changed by a physician that had not been properly rebelled by the pharmacist or had been rebelled by an employee or the administrator of the facility
Likewise, the Agency failed to establish or identify any resident whose medication was supervised by the facility that the administrator failed to ensure that that resident's medications were not refilled in a timely manner.
The Agency failed to establish that a deficiency in this regard existed at the June 11, 1993, follow-up visit or January 19, 1994, appraisal visit.
The administrator did not dispose of medications as allowed by regulations.
It is alleged that this deficiency was cited in the January 19, 1993, annual survey and recited again at the June 11, 1993, follow-up visit.
At the January 19, 1993, annual survey the Agency surveyor found a bottle of Tylenol that was alleged to belong to a resident that had been discharged from the facility longer than 15 days. The Agency failed to establish or identify the resident that the Tylenol belonged to or when that
resident was discharged. However, the facility had disposed of the Tylenol by the March 22, 1993, follow-up visit and the Agency considered the matter corrected within the specified time the facility was allowed to correct the deficiency.
As to the follow-up visit of June 11, 1993 concerning this deficiency, the Agency failed to establish or identify any resident that had been discharged from the facility whose medication had not been disposed of, or disposed of improperly by the facility.
The Agency failed to establish that a deficiency existed at the June 11, 1993, follow-up visit and thereby establish a repeat deficiency.
The administrator did not ensure that the facility had no stock supply of over-the-counter (OTC) medications, OTC medications are labeled as required, and supervised as ordered by the physician.
The Agency failed to advised the facility in the Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected.
It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and was not corrected at the January 19, 1994, appraisal visit.
The Agency established that the Respondent did keep a stock supply of OTC medications in that such items as Tylenol, milk of magnesia, vaseline, Mylanta, Easy Lax, and other assorted OTC medications were kept in the facility without any resident's name on the medication. This deficiency still existed at the January 19, 1994, appraisal visit.
Likewise, the Agency established that OTC medications were kept for residents with the resident's name on the medication in with other residents' OTC medication stored in the facility's cabinet. However, the Agency failed to establish that any of these OTC medications were not labeled as ordered by the physician or that the manufacturer's label with directions for use were not kept with the OTC medications or that the supervision of the OTC medication was not as order by the physician where there were such orders.
The Agency established that a deficiency in this regard existed at the June 11, 1993, follow-up visit and was not corrected at the time of the January 19, 1994, appraisal visit.
The facility did not employ a Consultant Pharmacist within fourteen (14) days of the documentation of an uncorrected Class III medication violation, and did not retain the Pharmacist for on-site quarterly updates until the department verified after written notification by the Administrator and Consultant Pharmacist the correction of the medication violations.
It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and recited at the January 19, 1994, appraisal visit.
By letter dated June 17, 1993, the Agency advised the administrator that "[b]ecause of the uncorrected and new deficiencies related to Medications according to 10A5.034 of the administrative code you are now required to employ a pharmacist consultant. The initial on site pharmacist consultant visit must take place within 14 working days and quarterly thereafter."
The administrator hired a pharmacist consultant who visited the facility on July 6, 1993, this was within 14 working days allowed by the Agency. However, the consultant pharmacist was not retained after July 6, 1993. The administrator did not submit the Consultant pharmacist's quarterly corrective action plan to the Agency. After the January 19, 1994, appraisal visit, the administrator again employed a consultant pharmacist.
The Agency established that a deficiency in this regard existed at the June 11, 1993, follow-up visit and was not corrected at the time of the January
1994, appraisal visit.
The administrator did not ensure that opportunities are provided for social and leisure activities by planned activities. It is alleged that this deficiency was cited in the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit and was recited at the January 19, 1994, appraisal visit.
Contrary to the testimony of the Agency's witnesses, the administrator did provide the residents opportunities for social and leisure activities by planning activities. However, the administrator was limited in what could be offered in that the facility was mainly a one person operation, and the age and physical condition of the residents limited their participation to certain social and leisure activities. Also, contrary to the testimony of the Agency's witnesses, the administrator did prepare, keep and post an activities calendar - albeit not an elaborate or sophisticated one.
The Agency failed to establish that a deficiency in this regard existed at the January 19, 1993, annual survey or the January 19, 1994, appraisal visit.
The administrator did not develop and implement or arrange for an ongoing activities program at a minimum ten (10) hours a week, and did not ensure resident participation in the planning activities.
It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, and June 11, 1993, follow-up visits and was recited at the January 19, 1994, appraisal visit.
The Agency failed to establish that the activities planned by the administrator for the residents as set out in 4(y) above did not total a minimum of 10 hours a week. The administrator had developed and implemented or arranged for an ongoing activities program and provided for resident participation in the planning activities. While the administrator's program was not elaborate or sophisticated, it met the requirements for an ACLF with a resident capacity such as Respondent's facility.
(aa) The administrator did not ensure that monthly fire drills were documented.
It is alleged that this deficiency was cited at the January 19, 1991, annual survey, was recited at the January 19, 1993, was not corrected at the March 22, 1993, follow-up visit, was recited at the January 19, 1994, appraisal visit and is a repeat deficiency.
At the January 19, 1993, annual survey there was no documentation of monthly fire drills for the past year.
At the January 19, 1994, appraisal visit, it was established that although monthly fire drills from April, 1993 through December, 1993, had been documented, the documentation did not contain the required information. The dates of the fire drills were provided. However, information specified by regulation such as time required to evacuate, location of simulated fire, fire escape paths used and notation of residents who resisted or failed to participate was not provided.
The Agency established that a deficiency in this regard existed at the times alleged and is a repeat deficiency.
(bb) The administrator did not maintain documentation available regarding the testing and operation of the smoke detectors.
It is alleged that this deficiency was cited in the January 19, 1993, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency.
As to the deficiency cited at the January 19, 1993, annual survey, the monthly testing of smoke detectors was not documented. Smoke detectors in room #3 and the hallway were inoperable when tested by the surveyor at the January 19, 1993, annual survey. This deficiency was corrected within the time specified by the Agency.
At the time of the January 19, 1994, appraisal visit the Respondent had failed to document the monthly testing of smoke detectors.
The Agency established that a deficiency in this regard existed at the times alleged and is a repeat deficiency.
By letter dated January 12, 1994, the Agency advised the administrator that a moratorium on admissions to the facility had been imposed effective January 10, 1994, in accordance with Section 400.415, Florida Statutes. At the time the moratorium was imposed January 10, 1994, the resident census was six.
The letter of January 12, 1994, advised the administrator of the right to request a formal administrative hearing on the issue of the moratorium. The administrator made no request for a formal administrative hearing.
Sometime in the latter part of June, 1994, a resident of the facility was discharged bringing the resident census to five. Shortly thereafter, on July 9, 1994, the facility admitted a new resident. Upon being advised by the Agency that the admission was in violation of the moratorium, the facility discharged the resident on August 31, 1994. It was the administrator's understanding that the moratorium was on any admissions above the resident census of six.
By letter dated August 23, 1994, the Agency advised the administrator that the January 12, 1994, letter was being supplemented and amended. Among other matters, the letter advised the administrator that the moratorium would run concurrently with the facility's licensure denial and remain in effect until the denial issue was resolved. The letter also advised the administrator of the right to a formal administrative hearing. The administrator made no request for an administrative hearing.
On September 9, 1994, a Final Order was entered by the Agency imposing a moratorium effective January 10, 1994, that would remain in effect until no longer necessary, affirming the Agency's action set forth in the January 12, 1994, letter.
On October 12, 1994, a Final Order was entered by the Agency imposing a moratorium effective January 10, 1994, that would run concurrently with the licensure denial and remain in effect until the denial issue was resolved, affirming the Agency's action set forth in the August 23, 1994, letter.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
The burden of proof is on the party asserting the affirmative of an issue before and administrative tribunal. Florida Department of Transportation
v. J.W.C. Company, Inc., 396 So.2d 778 (2d DCA Fla. 1981). To meet this burden the Agency must establish facts upon which its allegations are based by a preponderance of the evidence. Section 400.414(1), Florida Statutes.
Section 400.414(1), Florida Statutes, empowers the Agency to deny, revoke, or suspend a license to operate a ACLF or impose an administrative fine if the Agency finds any of the grounds enumerated in Section 400.414(2)(a)-(h), Florida Statutes, to exist.
Pertinent to this case, Section 400.414(2)(f) and (g) Florida Statutes, provide as follows:
(2) Any of the following actions by a facility or its employee shall be grounds for action by the agency against a licensee:
* * *
(d) Five or more repeated or recurring identical or similar class III violations of this part which were identified by the agency during the last biennial inspection, monitoring visit, or complaint investigation and which, in the aggregate, affect the health, safety, or welfare of the facility residents.
* * *
Violation of a moratorium.
Failure of the licensee during relicensure, or failure of a licensee that holds an initial or change of ownership license, to meet minimum license standards or the requirements of rules adopted under this part.
Rule 10A-5.033(1)(b), Florida Administrative Code, provides as follows:
Survey deficiency.
* * *
Administrative fines shall be imposed for deficiencies which are not corrected within the time frame set by the department in its
written notification and for repeat deficiencies, as set forth in s. 400.419(3), F.S.
Rule 10A-5.0131(2)(xx), Florida Administrative Code, provides as follows:
Repeat Deficiency. A deficiency which is cited as a result of a survey conducted pursuant to Rule 10A-5.033(1), F.A.C., following a citation for the same deficiency occurring within the
current or immediately preceding licensure period.
Pertinent to this case, Section 400.419(3)(c), provides:
... A class III violation is subject to a civil penalty of not less $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.
Section 400.411(5), Florida Statutes, and Rule 10A-5.014(2)(a)4., Florida Administrative Code, require that facilities obtain and keep in force liability insurance, and provide proof of such insurance. The Respondent has met those requirements. Therefore, the Agency failed to prove a deficiency in this regard existed at either the 1991 or 1992 annual survey.
While the Respondent did keep a copy of the last Agency inspection report in an area that was available to the public, the Respondent did not have a copy of the inspection report posted in a prominent location as required by Section 400.435(3), Florida Statutes. Therefore the Agency has proven that a deficiency did exist in this regard at the January 1993, annual survey that was not corrected at the time of the follow-up visit in March, 1993.
Rule 10A-5.024(1)(a), Florida Administrative Code, requires that the facility maintain an admission/discharge register that is separate and apart from the individual resident file, with pertinent information concerning the admission and discharge of each resident. Although the Respondent's admission/discharge register was kept in somewhat of a "loose and shabby manner", that could stand some improvement, the information on each resident was sufficient to be considered complete. Therefore, the Agency has failed to establish that a deficiency in this regard existed at either the 1991 and 1992, annual survey or the January 1994, appraisal visit.
Rule 10A-5.024(2)(b)3.e., Florida Administrative Code, requires that a record of height and weight be initiated on admission for each resident and that residents receiving individual assistance with their ADL's shall have their weight recorded semiannually. The Agency has established that a deficiency existed at the January 29, 1991, annual survey but that deficiency was corrected at or before the March 22, 1991, follow-up visit. Therefore, since it was not established that a deficiency existed at the January 19, 1993, annual survey there was no repeat deficiency as alleged in the Administrative Complaint.
Rule 10A-5.024(1)(j), Florida Administrative Code, requires that each facility have a Disaster Preparedness Plan that has been coordinated with and reviewed by the local disaster preparedness authority. The Agency has established that the facility failed to act in a timely and responsible manner and as a result no Disaster Preparedness Plan had been coordinated with and reviewed by the local disaster preparedness authority during any of the visits by the Agency in January and March, 1993 or January, 1994. Since the facility failed to correct this deficiency by the time of the follow-up visit in March, 1993, the deficiency in January, 1994, was a repeat deficiency as alleged in the Administrative Complaint.
Rule 10A-5.019(5)(d), Florida Administrative Code, requires that the administrator develop job descriptions for staff who are responsible for providing personal services to residents. Although the facility was an ACLF as defined in Section 400.402(3), Florida Statutes, which offered residents assistance with personal services as defined by Section 400.402(16), Florida Statutes, the facility was not prevented from accepting residents that did not require assistance with personal services. Since the Agency failed to establish which, if any, of the residents required assistance with their personal services or which, if any, of the employees were providing personal services to the residents, it failed to establish that a deficiency existed.
Rule 10A-5(1)(f), Florida Administrative Code, requires each staff member of a facility have a personnel record containing certain documentation. The Agency failed to establish or identify which, if any, of the staff members' (including the administrator's) personnel file did not meet the above requirement. Therefore, the Agency failed to establish that a deficiency existed at the June 11, 1993, follow-up visit or was not corrected at the January 19, 1994, appraisal visit.
Rule 10A-5.0191(4), Florida Administrative Code, requires that the administrator ensures that, before staff provide assistance with personal hygiene, they have received training in personal hygiene care from a nurse. The Agency failed to establish which, if any, of the staff members were providing residents assistance with personal hygiene or if they were, which staff did not have the required training.
Rule 10A-5.0191(5)(a), Florida Administrative Code, requires that the administrator ensure that each staff member who may come into contact with potentially infectious materials is trained in infection control procedures for blood and other body fluids. The Agency failed to establish that a deficiency existed in this regard.
Section 400.424(1), Florida Statutes, requires that the presence of each resident in a facility shall be covered by a contact executed at the time of admission or prior thereto, between the facility and the resident, or designee or legal representative. Rule 10A-5.024(2)(a), Florida Administrative Code, sets forth the provisions to be covered in the contract. Since the Agency could not identify any resident by name (only by number) that did not have a properly executed contract, no deficiency has been established.
Section 400.426(4),(5) and (6), Florida Statutes, require in essence that where possible a resident shall be examined by a licensed physician or licensed nurse practitioner within 60 days before admission to a facility or within 30 days following admission so that the facility owner or administrator may determine the appropriateness of the admission. The Agency established a deficiency in this regard at the January 29, 1991, annual visit which was
corrected on March 7, 1991, within the time limit specified by the Agency. Therefore, under Section 400.419(3)(c), Florida Statutes, there can be no penalty unless there is a repeat deficiency. The Agency failed to establish a deficiency at the January 19, 1993, annual survey. Therefore, there is no repeat deficiency as alleged in the Administrative Complaint.
Rule 10A-5.0181(6)(a) - (d), Florida Administrative Code, provides that the criteria for continued residency shall require, among other criteria, the criteria for admission set forth in Rule 10A-5.0181(5)(a) - (m), Florida Administrative Code. The Agency failed to establish or identify which, if any, of the residents where the administrator failed to follow the criteria for continued residency in keeping the resident in the facility. The Agency failed to establish a violation of the above rules.
Rule 10A-5.019(5)(b), Florida Administrative Code, requires that the administrator assure that sufficient staff who know how to implement the facility's disaster plan are on the premises at all times. NFPA 101 Life Safety Code 1988, Chapter 31-7, Florida Administrative Code, requires that all staff be periodically instructed and kept informed with respect to their duties and responsibilities in regard to the plan, that such instruction be reviewed every two months and that a copy of the plan be readily available at all times within the facility. The Agency failed to establish that a deficiency existed in this regard at the January 29, 1991, annual review or the January 19, 1994, appraisal visit.
Rule 10A-5.019(5)(f), Florida Administrative Code, requires the administrator to assure that there is a least one staff member within the facility at all times who has certification in first aid in accordance with Rule 10A-5.0191(2), Florida Administrative Code. The Agency failed to establish that a deficiency existed in this regard.
Rule 10A-5.019(5)(h), Florida Administrative Code, requires that the administrator assure that members of the staff appear to be free from apparent signs and symptoms of communicable disease, as documented by a statement by a health care provider. The Agency failed to establish that a deficiency existed in this regard.
Rule 10A-5.019(5)(k), Florida Administrative Code, requires that the administrator assure that, during periods of temporary absence of the administrator when residents are on the premises, a staff member who is at least
18 years of age, has certification in first aid, and duly appointed in writing is in charge of the facility. The Agency failed to establish a deficiency in this regard.
Rule 10A-5.0182(6)(b)2.a.- e., Florida Administrative Code, requires that where supervision of self-administered medications is required there must be a staff person designated in writing who is responsible for, and trained in the supervision of self-administered medications and that such staff person is to follow the procedure set out in the regulation. Rule 10A-5.024(1)(c), Florida Administrative Code, requires that a daily up-to-date medication records be kept on file in the facility for residents who receive self-administered medication. The Agency failed to establish a deficiency in this regard.
The deficiency as alleged in the administrative complaint charges that the deficiency is a violation of Rule 10 A-5.0182(6)(b)3. & 4., Florida Administrative Code , provides for the staff person designated to supervise self-administered medication to assist the resident in numerous ways and makes
the staff person responsible for keeping the resident's health care provider up- to-date on the resident's conditions and concerns. This deficiency does not appear to be noted in the January 19, 1993, annual survey. In any event the Agency failed to establish a deficiency in this regard.
Rule 10A-5.0182(6)(c), Florida Administrative Code, provides that only persons licensed to administer medications may administer medication in accordance with heath care provider's directions. The Agency failed to establish a deficiency in this regard. The administrator's assistance with opening the bubble packs for residents before time for medication falls more in line with supervising self-administered medication. See Rule 10A- 5.0182(6)(b)3.c., Florida Administrative Code.
Pertinent to this alleged deficiency, Rule 10A-5.0182(6)(d), Florida Administrative Code , provides that no prescription drug shall kept by the facility unless it has been legally dispensed and labeled for the resident for whom it is prescribed, that medications may be centrally stored under certain conditions and that, among other things, centrally stored medication shall be kept in a locked cabinet or other locked storage receptacle at all times. The Agency established that there was a violation of the above rule.
Rule 10A-5.0182(6)(d)4.a.b. and (e), provides that no person other than a pharmacist shall alter a prescription label or transfer medication from one storage container to another, and that the administrator shall make ever effort to ensure that prescriptions for residents whose medications are supervised or administered by the facility are refilled in a timely manner. The Agency failed to show a violation of the above rule.
Rule 10A-5.0182(6)(d)6., Florida Administrative Code, a procedure for disposing of medication that is left in a facility after a resident is discharged and the administrator has been unable to return the medication to the resident, the resident's family or the resident's guardian. Assuming arguendo that a deficiency exited in this regard at the January 19, 1993, annual survey, that alleged deficiency was corrected within the specified time allowed by the Agency. Therefore, unless there is repeat deficiency, the can be no penalty. The Agency failed to show a repeat deficiency at the June 11, 1993, follow-up visit.
Rule 10A-5.0182(6)(f), Florida Administrative Code, provides that a stock supply of OTC medication for multiple resident use is not permitted and that when OTC medications are centrally stored they shall be labeled with the resident's name, and the manufacturer's label with directions for use shall be kept with the medications. The Agency established that a violation occurred.
Pertinent to this case, Rule 10A-5.033(5)(a), Florida Administrative Code, requires the facility to employ, on staff or by contract, the services of a licensed pharmacist where there is a documented class III violation directly related to the administration or supervision of self-administered medication. The rule further requires that the first on-site visit by the pharmacist occur within 14 working days of the identification of the class III violation, that written recommended corrective action be furnished to the Agency not later that
10 working days after the initial on-site visit by the pharmacist and at a minimum that a written quarterly corrective action report be furnished the Agency until the Agency, along with the pharmacist and the facility determine that the deficiencies have been corrected and the staff trained. The Agency established that a violation occurred.
Rule 10A-5.0182(4), Florida Administrative Code, requires that the facility provide opportunities for social and leisure services, and that an activities calendar be posted or made available to residents. The Agency failed to show a violation of the rule.
Rule 10A-5.0182(4)(a), Florida Administrative Code, provides that the administrator is responsible for the development and implementation of or arrangement for participation by residents in an ongoing activities program, that scheduled activities shall be available 5 days a week for a total of not less than 10 hours per week. The Agency failed to show a violation of this rule.
Rule 10A-5-023(18)(a).5 and (b), Florida Administrative Code, requires that the facility conduct and document monthly fire drills in accordance with Rule 4A-40, Florida Administrative Code. The Agency has proven a violation of the above rules.
Rule 10A-5.022(1)(b) and Rule 4A-48, Florida Administrative Code, and NFPA 101, Life Safety Code 1988, Chapters 21-2.3.4., require the facility to keep the fire protection system in a safe and functional condition and to document the testing of such system. The Agency has proven a violation of the above rules.
Having considered the foregoing Findings of Fact and Conclusions of Law, and considered the factors set forth in Section 400.419(2), Florida Statutes, concerning the imposition of a penalty, it is recommended that the Agency for Health Care Administration enter a Final Order finding the Respondent to have committed the violations set forth in paragraphs 3(b), 3(e), 3(t), 3(w), 3(x), 3(aa) and 3(bb) of the Administrative Complaint and for such violations shall pay an administrative fine of $100, $200, $300, $250, $250, $250, and $250, respectively, for a total administrative fine of $1,600, to be paid on terms the Agency deems appropriate. It is further recommended that the Agency grant the Respondent's application for renewal of its license with conditions the Agency deems appropriate, including, at the minimum, that the moratorium remain in place until such time as the Respondent employs a consultant pharmacist, on staff or by contract, and corrects the medication violations as found in this Recommended Order to the satisfaction of the Agency.
RECOMMENDED this 27th day February, 1995, in Tallahassee, Florida
WILLIAM R. CAVE
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 27th day of February, 1995.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5515 AND 94-4101
The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in these cases.
Petitioner's Proposed Findings of Fact:
Proposed finding of fact 1 is adopted in substance as modified in Finding of Fact 1.
The introductory portion of Proposed finding of fact 2 is adopted in substance as modified in Findings of Fact 2 and 3.
Proposed findings of fact 2(a), 2(c), 2(d), 2(f) through 2(r), 2(t), 2(u), and 2(x) are rejected as not being supported by the evidence in the record.
Proposed findings 2(b), 2(e), 2(s), 2(v), 2(w), 2(y)and 2(z) are adopted in substance as modified in Findings of Fact 4(b), 4(e), 4(t), 4(w), 4(x), 4(aa) and 4(bb), respectively.
Proposed finding of fact 3 is adopted in sustance as modified in Finding of Fact 4.
Proposed finding of fact 4 is adopted in substance as modified in Findings of Fact 5, 6, 8-10.
Proposed finding of fact 5 is adopted in substance as modified in Finding of Fact 7.
Proposed finding of fact 6 is adopted in substance as modified in Finding of Fact 4(t).
Proposed finding of fact 7 is covered in the Preliminary Statement.
Respondent's Proposed Findings of Fact:
1. Proposed finding of fact 1 is adopted in substance as modified in Finding of Fact 1.
The balance of Respondent's proposed findings of fact are intermingled with cited rules and statutes, the allegations and argument. Some paragraphs are numbered and some paragraphs are unnumbered. Where it is possible, a response has been made to what might be considered proposed findings of fact. However, the proposed finding of fact may be one of many unnumbered paragraphs under a single number.
2. Proposed findings of fact 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17,
18, 19, 21, 23, 24, 25, 37 and 40 are adopted in substance as modified in Findings of Fact 4(c), 4(a), 4(d), 4(j), 4(b), 4(l), 4(m), 4(k), 4(n), 4(aa),
4(x)(z), 4(q), 4(n), 4(s), 4(u), 4(v), 4(g), 4(p), 4(o) and 4(u), respectively
3. Proposed findings of fact 2, 4, 26 - 30, 32, 36, 39 and 43 - 48 are either not material or relevant, or unnecessary, or subordinate, or cumulative.
4. Proposed findings of fact 16, 20, 22, 28, 31, 33, 34, 35, 38, 41 and 42 are rejected as not being supported by the evidence in the record.
COPIES FURNISHED:
Sam Power, Agency Clerk
Agency For Health Care Administration The Atrium, Ste. 301
325 John Knox Road Tallahassee, Florida 32303
Tom Wallace, Assistant Director Agency For Health Care Administration The Atrium, Ste. 301
325 John Knox Road Tallahassee, Florida 32303
Linda Parkinson, Esquire
Agency For Health Care Administration Division of Health Quality Assurance
400 West Robinson Street, Suite S-309 Orlando, Florida 32801
William Witt, Esquire
4625 East Bay Drive, Suite 210
Clearwater, Florida 34624
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, | |||
CASE | NO.: | 93-5515 | |
Petitioner, | PDRL | NO.: | 8-93-453-ACLF |
vs. | CASE | NO.: | 94-4101 |
DORA RETIREMENT HOME, | PDRL RENDITION | NO.: NO.: | 8-93-517-ACLF AHCA-95-467-FOF- |
(Idora Rawlings) | OLC | ||
Respondent.
/
FINAL ORDER
The Respondent operates a small (6 residents) retirement home, known in regulatory language as an "adult congregate living facility" (ACLF). The goal of state regulation is to promote the dignity, privacy, health, and safety of the elderly and disabled residents of such homes. The legislature has emphasized that a license to operate such a home is a public trust, not an entitlement, and that this principle should guide the fact finder in adjudicatory proceedings. See Section 400.401(2) and (3), Florida Statutes.
The mission of an ACLF is to serve its residents in a homelike setting by providing room, board, and assistance as needed with walking, bathing, dressing, eating, grooming, toileting, taking of medicines, and similar activities.
RULING ON EXCEPTIONS FILED BY THE RESPONDENT
The Respondent excepts to all findings that her facility was in violation of applicable rules on the grounds that the testimony of the agency's witnesses was not credible. The agency has no authority to reweigh the evidence or evaluate the credibility of testimony given before the hearing officer. The exceptions are denied. Heifetz vs. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985)
RULING ON EXCEPTIONS FILED BY THE AGENCY
Counsel excepts to the hearing officer's conclusion in paragraphs 4(a) and
18 that no fine should be imposed for the deficiency cited at both the inspection (survey) of January 1991 and the next inspection of January 1993 for failure to maintain liability insurance. The agency's inspectors testified on the basis of their notes that no documentation of insurance was presented to them at the inspection or in the follow-up times for corrections, but the
Respondent testified that she did provide the documentation at the time of the inspections. At this level of review the agency has no authority to reweigh the evidence. The hearing officer resolved the conflicting testimony as follows:
It is unclear whether the agency requested and was not provided copies of the certificates of insurance . . . or whether the agency was just unable to locate copies of the certificate of insurance in the Respondent's files during the 1991 and 1993 annual surveys.
In so finding the hearing officer implicitly rejected the Respondent's testimony that she provided this documentation at the time of the inspections. Based on the certificates having been presented at the two day administrative hearing in Sarasota, the hearing officer concluded that the Respondent was insured as required by law. The rule should be amended to allow imposition of a fine for failure to present evidence of insurance at the time of inspection or during the follow-up period allowed for correction of deficiencies. But as currently written no fine can be imposed.
Counsel excepts to the hearing officer's conclusion that no fine should be imposed for failure to maintain an admissions and discharge registry. The hearing officer found that the Respondent's record keeping was "sloppy" and that the registry, if the hodgepodge of records kept could be described as a registry, "was kept in somewhat a loose and shabby manner". At the hearing the hearing officer noted that "Well, the log, I think, the log speaks for itself, that the entries are certainly not in chronological order." See transcript page
233. On cross examination, the Respondent acknowledged that "I keep very bad records, okay." She defended her inadequate records by saying, "I was never taught how to really file." See transcript page 228 and 236. The inadequate record keeping spanned the period from 1991 to 1994. The hearing officer's recommendation of no fine is based on his conclusion that with sufficient study, the required entries could be found in the Respondent's records. This recommendation overlooks the requirement of the rule that such records be maintained "in a place, form and system ordinarily employed in good business practice." See the introductory paragraph of Section 10A-5.024, Florida Administrative Code. The $250.00 fine sought by the agency for the Respondent's repeated failure to comply with the requirement for an admissions discharge record is clearly appropriate and is hereby imposed.
Counsel excepts to the hearing officer's recommendation that no fine be imposed for failure to maintain a record of resident weights at the time of admission and semiannually thereafter. An ACLF provides housing, food service, and personal services to its residents. Personal services include "individual assistance with or supervision of essential activities of daily living" such as walking, bathing, dressing, eating, grooming, toileting, and taking medicines. In contrast to actual physical assistance, supervision of such activities means reminding a resident and when necessary observing to see if the resident completes the activity. See Section 400.402, subsections (1), (3), (7), (16), (22), and (23), Florida Statutes. The rule requires the semiannual recording of a resident's weight only if the resident is receiving individual assistance with one or more activities of daily living. See Section 10A-5.024(b)3.e., Florida Administrative Code. The basis given for the recommendation of no fine is that the agency did not establish that there were residents receiving individual assistance with as opposed to mere supervision of activities of daily living.
The hearing officer's ruling is sustained and the exception is denied.
Counsel excepts to the hearing officer's recommendation that no fine be imposed for failure to have written job descriptions for staff providing personal services to residents. This requirement is not applicable to staff persons whose duties are exclusively building maintenance or clerical. Section 10A-5.019(5)(d) and (6)(e)4., Florida Administrative Code. The hearing officer found as a fact that Respondent had staff persons without job descriptions, but held that it was the obligation of the agency to establish whether an individual staff person fit within the exception or not. The hearing officer's rationale is rejected. The obligation to establish whether a staff person is within the exception is on the owner or operator of an ACLF, not the agency. See State vs. Kahler, 232 So.2d 166 (Fla. 1970), Wright vs. State, 409 So2d 1183, 1185 (Fla.
4th DCA 1982), and Hall vs. T. C. Safford Paving Service, 397 So.2d 725, 726 (Fla. 1st DCA 1981). Also rejected is the hearing officer's conclusion that a repeat violation does not exist unless the same employee is the subject of the first and later violations. See Section 400.414(2)(d), Florida Statutes, which allows the agency to discipline a licensee for recurring identical or similar violations. Finally, the implication of paragraph 23 that no discipline can be imposed on an ACLF unless the agency proves that the residents of a facility in fact require the services of a licensed ACLF is rejected. A repeat violation has been established in this case and a $250.00 fine is appropriate and is hereby imposed.
Counsel excepts to the hearing officer's recommendations in paragraphs (4)(g) through (i) that no fines be imposed for failure to maintain a personnel file on each staff person. The hearing officer's recommendation appears to have been based on conflicting evidence as to whether the Respondent was in compliance with rule requirements; therefore, the exception is denied and no fine is imposed.
Counsel excepts to the hearing officer's recommendation that no fine be imposed for failure to maintain a contract for each resident executed at or before admission. The hearing officer implies that no violation can be established unless residents are identified by name as not being covered by a contract. There is no requirement that residents be identified by name to prove a violation. Because the hearing officer's comment may also be construed as a comment on the weight of the evidence, the exception is denied and no fine is imposed.
Counsel excepts to the hearing officer's recommendation in paragraph 4(k) that no fine be imposed for failure to have new residents examined by a physician or nurse practitioner within 30 days of admission as required by Section 400.426(5), Florida Statutes. Although the hearing officer found several violations were established at the inspection of January 1991, the hearing officer recommends against finding a repeat violation because a resident's examination was found to be untimely by only 5 days in the inspection of January 1993. The extent of the untimeliness is relevant to mitigation, not to whether there is a violation. In the context of the Respondent's other record keeping deficiencies, the $250.00 fine sought by the agency for this repeat violation is reasonable, and is hereby imposed.
Counsel excepts to the hearing officer's recommendation that no fine be imposed for failure to ensure that residents were not kept after their health declined to the extent that they no longer met the criteria for ACLF residency. Again, the hearing officer's language could be read to imply that a violation of this requirement cannot be proved without identifying by name residents who do
not meet residency requirements. There is no such requirement, but because the comments may also be construed as a comment on the weight of the evidence, the exception is denied and no fine is imposed.
Similarly, the hearing officer recommends no fine be imposed for failure to ensure that staff were knowledgeable in how to implement the facility's disaster plan because individual employees unfamiliar with the disaster plan were not identified by name. There is no requirement that staff persons be identified by name, but for the reason given above the exception is denied and no fine is imposed.
Counsel excepts to the hearing officer's recommendation in paragraph 4(q) that no fine be imposed for failure to document staff supervision of self- administered medications. Not all residents at an ACLF need supervision and assistance in taking medications. A resident who is able, is encouraged to take her/his own medicines and may keep the medicines in her/his own room. Section 10A-5.0182(6)(a), Florida Administrative Code. Supervision of self administration of medicines is but one of the personal services which must be available to residents who need help such as opening medicine bottles, reading labels, and reminders to take medicines. When this service is provided, daily documentation by the staff is required. Section 10A- 5.024(1)(c), Florida Administrative Code. The hearing officer found that the agency failed to prove that any of respondent's residents over the approximately three year period were receiving assistance with the taking of medications. Having reviewed the entire record, it is clear that the Respondent was providing this service to residents. See page 19, paragraph 4(s) of the hearing officer's findings and the Respondent's testimony at transcript pages 189 - 192, 204, and 211 - 214. Very troubling is testimony by one of the inspectors that she found filled syringes with needles that could not be identified with a particular resident or prescription. See the transcript, pages 45 and 82. The hearing officer's finding is totally contrary to the record and is rejected. Desmond vs. Medic Ayers Nursing Home, 492 So.2d 427 (Fla. 1st DCA 1986) . A repeat violation has been established; the $250.00 fine sought by the agency is reasonable, and is hereby imposed.
Counsel's next exception addresses the issue of whether she Respondent crossed the line from staff supervision of self administration of medicines by a resident to actual administration of medicines by the Respondent.
Administration of medicines, as opposed to self administration, must be done by a licensed health care provider, such as a nurse. The evidence is conflicting here; therefore, the exception is denied and no fine is imposed. It is recommended that agency staff draft a rule on what acts or forms of assistance constitute administration requiring a licensed provider.
Finally, counsel excepts to the hearing officer's findings regarding alteration of prescription labels and disposal of medications. Again, the evidence is conflicting; therefore, the exception is denied and no fine is imposed.
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 rulings on the 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 rulings on the exceptions.
In this case, the agency imposed a moratorium 1/ on the admission of new residents, and seeks to deny the Respondent's current application for license renewal based on serious repeat deficiencies and to impose a substantial fine. The history of violations dates back to the Respondent's first biennial inspection of January of 1991 and has continued in the more than three years since the first inspection. The hearing officer found the Respondent guilty of seven violations, and recommends the imposition of fines totaling $1,600.00, but regarding licensure, the hearing officer recommends that the Respondent be given one more chance to prove she is capable of operating an ACLF. Specifically, he recommends a conditional license be issued with conditions deemed appropriate by the agency, and that the moratorium remain in effect until the Respondent employs a consultant pharmacist and corrects medication violations established in this proceeding.
The entire record has been reviewed in considering the hearing officer's recommendation, and I respectfully disagree with the recommendation. See Criminal Justice Commission vs. Bradley, 596 So2d 661 (Fla. 1992)
On the basis of the hearing officer's findings and the rulings on the exceptions the Respondent has been found in violation of applicable rules as follows:
The Respondent failed to post the most recent agency inspection report. This is a repeat, class III violation. A $100.00 fine is imposed.
The Respondent failed to have a disaster plan and to coordinate with the local disaster preparedness authority. This is a repeat, class III violation. A $200.00 fine is imposed.
The Respondent failed to ensure that prescription drugs were kept by the facility only when legally dispensed and labeled for a resident. This is a repeat, class III violation. A $300.00 fine is imposed.
The Respondent maintained a stock supply of over-the-counter (OTC) medications and additionally failed to label such medications and supervise in accordance with doctors' orders. This is a repeat, class III violation. A
$250.00 fine is imposed.
The Respondent failed to retain a consultant pharmacist within 14 days of an uncorrected class III violation and keep the consultant until the agency received written notification by the consultant and the facility that corrections had been made. This is a repeat, class III violation. A $250.00 fine is imposed.
The Respondent failed to document monthly fire drills. This is a repeat, class III violation. A $250.00 fine is imposed.
The Respondent failed to maintain documentation regarding the testing and operation of smoke detectors. This is a repeat, class III violation. A
$250.00 fine is imposed. 2/
The Respondent failed to maintain an admission/discharge registry in a place, form, and system consistent with good business practice. This is a repeat, class III violation. A $250.00 fine is imposed.
The Respondent failed to have written job descriptions for staff providing personal services to residents. This is a repeat, class III violation. A $250.00 fine is imposed.
The Respondent failed to have new residents examined by a physician or nurse practitioner within 30 days after admission when such residents had not been so examined within 60 days prior to the date of admission. This is a repeat, class III violation. A $250.00 fine is imposed.
The Respondent failed to document supervision by staff of self- administered medications by residents. This is a repeat, class III violation. A $250.00 fine is imposed.
The Respondent violated the moratorium on admission of new residents. See paragraphs 5 through 7 of the Recommended Order.
The agency may deny renewal of an ACLF license if it is established that there were
at least 5 recurring identical or similar class III violations which in the aggregate threaten the health, safety, or welfare of residents, or
violation of a moratorium on admission of residents, or
failure of the licensee to meet minimum license standards. 3/
Having reviewed the entire record, I am satisfied that the Respondent has already been given ample time to demonstrate that she can operate an ACLF in compliance with law. It is patently clear that she is not so capable. Her record keeping is abysmal. I am further satisfied that the violations do in the aggregate constitute a threat to the health, safety, or welfare of her residents.
Based upon the foregoing, it is
ADJUDGED, that the Respondent's application for renewal of her license to operate an ACLF be denied. It is further adjudged that fines totaling $2,600.00 are imposed, but the fines are suspended on the condition that the Respondent cooperate fully and promptly with the staff of the agency and HRS in removing all residents in her facility who require the services of a licensed ACLF.
DONE and ORDERED this 3rd day of in Tallahassee, Florida.
Douglas M. Cook, Director Agency for Health Care
Administration
ENDNOTES
1/ The agency may impose a moratorium on the admission of residents to an ACLF when the facility poses a threat to the health, safety, or welfare of residents. Section 400.415, Florida Statutes.
2/ Violations one through seven and the fines imposed are based on the recommendations of the hearing officer.
3/ Section 400.414(2)(d), (f), and (g), Florida Statutes.
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.
COPIES FURNISHED:
William R. Cave Hearing Officer
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Linda Parkinson, Esquire
Division of Health Quality Assurance
400 West Robinson Street Suite S-309
Orlando, Florida 32801-1976
William Witt, Esquire 4625 East Bay Drive
Clearwater, Florida 34624
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addresses by U.S. Mail this 5th day of April, 1995.
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
=================================================================
DISTRICT COURT OPINION
=================================================================
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
DORA RETIREMENT HOME, IN THE DISTRICT COURT OF APPEAL (Idora Rawlings) OF FLORIDA SECOND DISTRICT
Appellant, CASE NO. 95-01560 DOAH CASE NO. 93-5515
v.
STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,
Appellee.
/ Opinion filed December 27, 1995.
Appeal from the Administrative Agency for Health Care Administration; Douglas M. Cook, Director.
Mark A. Gruwell of Law Offices of Mark A. Gruwell, Sarasota, for Appellant.
Linda L. Parkinson, Senior Attorney, Agency for Health Care Administration, Orlando, for Appellee.
PER CURIAM.
Affirmed.
SCHOONOVER, A.C.J., FULMER and QUINCE, JJ., Concur.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
Style: Dora Retirement Home v.
State, Agency for Health Care Administration County: Sarasota
Appellate Case No: 95-01560
Trial Court Case No: 93-5515/94-4101
This cause having been brought to this Court by Appeal, and after due consideration, the Court having issued its opinion;
YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the Opinion of this Court and with the rules of procedure and laws of the State of Florida.
WITNESS, The Honorable Edward F. Threadgill, Jr.,
Chief Judge of the District Court of Appeal of Florida, Second District, and the seal of said court at Lakeland, Florida, on this day.
February 13, 1996
(SEAL) William A. Haddad
Clerk, District Court of Appeal Second District
| Issue Date | Proceedings |
|---|---|
| Feb. 16, 1996 | Second DCA Opinion and Mandate filed. |
| May 23, 1995 | Letter to Hearing Officer from Idora Rawlings Re: Requesting a copy of any and communication, including recommendations, pleadings, etc. and a record of telephone communication between Mr. Witt or Mr. Wasserman might have sent filed. |
| May 04, 1995 | Letter to Mark A. Gruwell from William A. Haddad (Unsigned) (cc: Hearing Officer) Re: Notice of Administrative Appeal filed. |
| Apr. 06, 1995 | Final Order filed. |
| Feb. 27, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 11/9-10/94. |
| Dec. 28, 1994 | Respondent`s Recommended Order filed. |
| Dec. 16, 1994 | Letter to Parties of Record from WRC sent out. (RE: response to letter of 12/13/94) |
| Dec. 14, 1994 | Letter to Hearing Officer from M. Nicholas (Re: Lifting the Moratorium) filed. |
| Dec. 13, 1994 | (Respondent) Motion for Enlargement of Time To File Recommended Orders, Order (for Hearing Officer Signature) w/cover letter filed. |
| Dec. 12, 1994 | Order Granting Motion for Extension of Time to File Proposed Recommended Orders sent out. (time for parties to submit proposed orders is extended until 5:00pm on 12/21/94) |
| Dec. 12, 1994 | (Petitioner) Proposed Recommended Order (for Hearing Officer Signature) w/cover letter filed. |
| Dec. 09, 1994 | (Respondent) Motion for Enlargement of Time To File Recommended Orders filed. |
| Dec. 01, 1994 | Transcript of Proceedings (Volumes I, II/tagged) filed. |
| Nov. 09, 1994 | CASE STATUS: Hearing Held. |
| Oct. 31, 1994 | Amended Notice of Hearing (as to dates only) sent out. (hearing set for Nov. 9-10. 1994; 9:00am; Sarasota) |
| Sep. 23, 1994 | Order Denying Motion to Relinquish Jurisdiction sent out. (Petitioner`s motion denied) |
| Sep. 23, 1994 | Order Amending Denial Letter sent out. (motion granted) |
| Aug. 25, 1994 | (Petitioner) Motion to Amend Denial Letter filed. |
| Aug. 19, 1994 | Second Notice of Hearing sent out. (hearing set for 11/8/94; at 9:00am; in Sarasota) |
| Aug. 19, 1994 | (Petitioner) Motion to Relinquish Jurisdiction filed. |
| Aug. 17, 1994 | Order of Consolidation sent out. (Consolidated cases are: 93-5515, 93-4101) |
| Jul. 19, 1994 | Order to Show Cause sent out. (parties to show cause why this case should not be scheduled for hearing, must file reply within 15 days) |
| Jul. 18, 1994 | (Petitioner) Status Report filed. |
| May 13, 1994 | Order of Continuance and Status Report sent out. (hearing date to be rescheduled at a later date; parties to file status report by 7/11/94) |
| May 11, 1994 | (Respondent) Motion to Continue Hearing w/(unsigned) Order & cover ltr filed. |
| Mar. 22, 1994 | Third Amended Notice of Hearing sent out. (hearing set for 05/11/94, 9:00 a.m., Sarasota) |
| Mar. 21, 1994 | Second Notice of Hearing sent out. (hearing set for 05/19/94, 9:00 a.m., Sarasota) |
| Mar. 17, 1994 | Order sent out. (Joint Stipulation for Withdrawal of Attorney granted.) |
| Mar. 07, 1994 | Joint Stipulation for Withdrawal of Attorney w/(unsigned) Order & cover Ltr filed. |
| Feb. 25, 1994 | Petitioner`s Response to Respondent`s Request for Production filed. |
| Jan. 25, 1994 | Order of Continuance and Status Report sent out. (hearing date to be rescheduled at a later date; parties to file status report by 2/25/94) |
| Jan. 24, 1994 | (Respondent) Motion for Continuance; Notice to Produce filed. |
| Oct. 14, 1993 | Notice of Hearing sent out. (hearing set for 1/27/94; 9:00am; Sarasota) |
| Oct. 07, 1993 | (AHCA) Response to Initial Order filed. |
| Sep. 28, 1993 | Initial Order issued. |
| Sep. 23, 1993 | Notice; Request for Formal Proceeding, Letter Form; Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 27, 1995 | Opinion | |
| Apr. 03, 1995 | Agency Final Order | |
| Feb. 27, 1995 | Recommended Order | Agency established violation sufficient to impose admiminstrative fines-violation not serious enough to warrant denying relicensure. |
