STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 97-4270

) ISLAND RETIREMENT HOME, INC., )

)

Respondent. )

) ISLAND RETIREMENT HOME, INC., )

)

Petitioner, )

)

vs. ) Case No. 97-4795

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on January 14, 1998, at Fort Lauderdale, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer A. Steward, Esquire

Agency for Health Care Administration 1400 West Commercial Boulevard

Suite 110

Fort Lauderdale, Florida 33309

For Respondent: Sola Gafaru, Director

Island Retirement Home, Inc. 2906 West Island Drive Miramar, Florida 33023

STATEMENT OF THE ISSUES

The issues for determination are whether Island Retirement Home, Inc., committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken; and whether Island Retirement Home, Inc.'s license, as an Assisted Living Facility, should be renewed.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 12, 1997, the Agency for Health Care Administration (AHCA) charged Island Retirement Home, Inc. (Island) with violating provisions of Chapter 400, Part III, Florida Statutes, and provisions of Chapter 58A-5, Florida Administrative Code, by failing to correct

32 Class III deficiencies cited during a survey on May 16, 1997, within the mandated time period of June 15, 1997, in that the deficiencies were uncorrected or could not be reviewed at the follow-up visit on July 7, 1997. By Answer dated August 27, 1997, Island disputed the allegations of fact in the Administrative Complaint and requested a formal hearing. On September 10, 1997, this matter was referred to the Division of Administrative Hearings (DOAH).

By letter dated August 22, 1997, AHCA notified Island that its application for license renewal as an Assisted Living Facility (ALF) was denied due to Island's failure to meet minimum licensure standards, pursuant to Subsection 400.414(2)(g), Florida Statutes. The alleged deficiencies were cited during the

survey on May 16, 1997, and were not corrected or could not be reviewed at the follow-up visit on July 7, 1997, which was terminated early due to alleged improper conduct by Island.

Island contested the denial and requested a formal hearing. On October 15, 1997, this matter was referred to DOAH.

The parties filed a motion to consolidate the two cases. By Order dated November 19, 1997, the motion was granted and the cases were consolidated.

At hearing AHCA presented the testimony of two witnesses and entered no exhibits into evidence. Island presented the testimony of three witnesses and entered three exhibits into evidence.1

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript.

The parties filed post-hearing submissions which have been duly considered in the preparation of this recommended order.

FINDINGS OF FACT

1. It is undisputed that Island Retirement Home, Inc. (Island) is licensed, as an Assisted Living Facility (ALF), by the Agency for Health Care Administration (AHCA). Island is licensed for six beds and is located at 2906 West Island Drive, Miramar, Florida.

2. On May 16, 1997, Island was surveyed by AHCA for relicensure. At that time Island had two residents at the

   facility.

   
   

3. At the survey on May 16, 1997, AHCA's surveyor found numerous deficiencies of which Island was notified.2

   Furthermore, Island was notified that it had to correct the deficiencies by June 15, 1997.

4. A follow-up visit was conducted by the same surveyor on July 7, 1997.3

5. Two deficiencies were found regarding fiscal records and financial stability.

   1. At the relicensure survey, AHCA's surveyor was unable to review Island's fiscal records and assess Island's financial stability in that Island's fiscal records were not maintained at the facility. Island's fiscal records were not provided to the surveyor even after the survey.

   2. At the follow-up survey, the deficiencies remained in that fiscal records were again unavailable.

   3. The deficiencies were classified as Class III deficiencies.

6. One deficiency was found regarding refunds to residents.

   
   

   1. At the relicensure survey, there were no records regarding refunds to residents. As a result, the surveyor was unable to verify refunds, if any, to residents. Entries regarding deposits and refunds were made by Island on the resident logs. However, no resident made a deposit so no refund was due any resident; therefore, no records, showing a refund to residents, existed.

   2. At the follow-up survey, the deficiency remained in that records were again unavailable.

   3. The deficiency was classified as a Class III deficiency.

7. One deficiency was found as to maintaining liability insurance.

   1. At the relicensure survey, AHCA's surveyor was informed that Island did not maintain documentation of its liability coverage at the facility, resulting in the surveyor being unable to determine Island's liability status. However, when an ALF applicant applies for renewal, proof of liability insurance must accompany the application. No evidence was presented that such proof did not accompany Island's renewal application.

   2. At the follow-up survey, the deficiency remained in that liability insurance records were again unavailable.

   3. The deficiency was classified as a Class III deficiency.

      
      

8. One deficiency was found regarding the posting of inspection reports.

   1. At the relicensure survey, none of the inspection reports from AHCA were posted at Island for public review.

   2. At the follow-up survey, the deficiency remained in that AHCA'S inspection reports were still not posted.

   3. The deficiency was classified as a Class III deficiency.

      
      

9. One deficiency was found as to a written procedure for contacting a resident's family in emergency situations.

   1. At the relicensure survey, Island did not have available for review such a written procedure. Because of the small number of residents served by Island, Island looks to a resident's application package as to who to contact on behalf of the

      resident in an emergency situation. Regardless, Island did not

      have a written procedure for contacting a resident's family in emergency situations.

   2. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to records and documents. Being unable to review a written procedure, if any, AHCA's surveyor terminated the survey.

   3. The deficiency was classified as a Class III deficiency.

      
      

10. One deficiency was found regarding personnel records showing that staff were appropriately trained to provide services to residents.

    1. At the relicensure survey, Island did not have at the facility any personnel records for review showing that its staff had the appropriate ALF training to provide services to the residents.

    2. At the follow-up survey, the deficiency remained uncorrected. Personnel records were available for Island's staff who were exempt from ALF training requirements; however, again, no records were available for one staff member showing that the ALF training requirements were fulfilled or that the person was exempt.

    3. The deficiency was classified as a Class III deficiency.

    
    

11. One deficiency was found relating to documentation

    showing that staff, who may come into contact with potentially

    infectious diseases, had received training in infection control measures.

    1. At the relicensure survey, one of Island's staff members assisted a resident and, because of the resident's needs, the staff member could come in contact with a potentially infectious disease. Island had no documentation showing that the staff member had received the appropriate training in infection control measures. Also, according to the staff member, no training had been received.

    2. At the follow-up survey, the deficiency remained uncorrected. Personnel records were available and were reviewed; however, none of the personnel records showed that the staff had received training in infection control measures.

    3. The deficiency was classified as a Class III deficiency.

    
    

12. One deficiency was found regarding the posting of the current health inspection report completed by the county public health unit.

    1. At the relicensure survey, Island did not post for public review the current health inspection report completed by the county public health unit. Because of Island's small size in physical structure and the number of residents served, the county public health unit inspected Island once a year. The only inspection report available was one completed by the county public health unit in 1996.

    2. At the follow-up survey, the deficiency remained in that

       Island did not have a current inspection report posted even though a current health inspection had been performed.

    3. The deficiency was classified as a Class III deficiency.

    
    

13. One deficiency was found regarding a current health assessment for each resident's status and condition.

    1. At the relicensure survey, Island did not have a current accurate health assessment for one resident (Resident No. 1) as to that resident's status and condition.

    2. At the follow-up survey, the deficiency was not corrected. The health assessment was again inaccurate for the resident, who was now Resident No. 4, in that the assessment had not been updated. Also, for another resident (Resident No. 3), no health assessment had been performed even though the resident had been a resident at Island for at least 30 days.

    3. The deficiency was classified as a Class III deficiency.

    
    

14. One deficiency was found as to the assessment of each resident's ability to self-preserve, or to get themselves out of the facility at the time of an emergency.

    1. At the relicensure survey, Island had not assessed its only two residents as to self-preservation. Island's basis for the non-assessment was that no forms were available for such an assessment.

    2. At the follow-up survey, the deficiency was not corrected.

    3. The deficiency was classified as a Class III deficiency.

15. One deficiency was found regarding each resident satisfying criteria for admission and continued residency in the facility.

    1. At the relicensure survey, one resident (Resident No. 1) failed to meet the criteria for continued residency. Resident No. 1 required assistance with all activities of daily living (ADLs), except eating, and had been bedbound for several months. Further, Resident No. 1's health assessment indicated a no-salt added diet, but Island failed to provide the Resident with such a diet, thereby, failing to meet the Resident's dietary needs. Additionally, from the review of Resident No. 1's records, the surveyor determined that the Resident had lost 16 pounds in 10 days and had lost 60 pounds since admission in October 1995, indicating that Island was no longer able to provide for the needs of the Resident.

    2. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to records and documents. Being unable to review the records or documents, AHCA's surveyor terminated the survey.

    3. AHCA did not present evidence as to the classification of the deficiency.

16. One deficiency was found as to inappropriately retaining the placement of a resident.

    1. At the relicensure survey, one resident (Resident No. 1) was found to be inappropriately placed. Resident No. 1 had been

       bedbound for several months. Within seven days of being bedbound, Respondent had failed to attempt to discharge and place Resident No. 1 in a more appropriate facility to meet Resident No. 1's needs.

    2. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to the entire facility. Being unable to inspect the facility, AHCA's surveyor terminated the survey. However, the surveyor did determine that Resident No. 1, who was now Resident No. 4, was still residing at the facility and was still bedbound.

    3. The deficiency was classified as a Class II deficiency.

    
    

17. One deficiency was found regarding documentation showing that the administrator met certain qualifications as an administrator.

    1. At the relicensure survey, Island did not have for review the personnel records of its administrator. The records were not maintained at the facility.

    2. At the follow-up survey, the administrator's personnel file was available for review and showed that the administrator was qualified to be an administrator. However, the personnel file failed to contain documentation showing that the administrator had obtained the necessary updated training, i.e.,

       CORE updates, to continue to meet the qualifications of an administrator.

    3. The deficiency was classified as a Class III deficiency.

18. Three deficiencies were found regarding documentation showing that the administrator had provided training to the staff on CORE subjects in job duties; and that the staff, who provided direct care, had received the required minimum training.

    1. At the relicensure survey, there were no training records. According to Island's administrator, no training records on the staff existed.

    2. At the follow-up survey, Island's administrator informed the surveyor that, again, no training records were available. Even though some personnel records were available, there was no documentation showing the required training.

    3. The deficiencies were classified as Class III deficiencies.

19. One deficiency was found as to having a written work schedule available.

    1. At the relicensure survey, Island did not have a written work schedule available.

    2. At the follow-up survey, the deficiency remained uncorrected. A written work schedule was available; however, the work schedule showed one person, the same person, on duty 24- hours a day, seven days a week. Even though Island's administrator informed the surveyor that she assisted the staff person shown on the work schedule every day with resident care, the administrator was not listed on the schedule and no other person was reflected on the work schedule as a back-up staff

       person.4 Moreover, the administrator's assistance would not be continual in that the administrator worked at least one day a week at a nursing home approximately 20 minutes from Island, and she owned and operated a home health agency.

    3. The deficiency was classified as a Class III deficiency.

    
    

20. One deficiency was found regarding a written appointment or designation of someone to be in charge of the facility during the administrator's temporary absence when residents are at the facility.

    1. At the relicensure survey, only one staff person was present and there was no written documentation showing the appointment or designation of the staff person or any other person to be in charge of the facility during the administrator's temporary absence. The administrator informed the surveyor that no person had been designated in writing to be in charge of the facility during her temporary absence.

    2. At the follow-up survey, the deficiency was not corrected. There was no documentation showing a written appointment or designation. Moreover, no person had been appointed or designated by the administrator.

    3. The deficiency was classified as a Class III deficiency.

    
    

21. One deficiency was found regarding staff receiving required HIV and AIDS training.

    1. At the relicensure survey, Island had no documentation showing that the staff had received required training in HIV and

       AIDS. The administrator is a registered nurse and was required by a hospital at which she was employed prior to the relicensure survey to obtain HIV and AIDS training. Even though the administrator had the required training, there was no documentation at the facility to show that she had the required training and her HIV and AIDS training was not within the knowledge of the surveyor.

    2. At the follow-up survey, the deficiency remained. Island had no documentation showing the required training in HIV and AIDS had been received by its staff.

    3. The deficiency was classified as a Class III deficiency.

    
    

22. One deficiency was found as to insufficient staff to meet the needs of the residents.

    1. At the relicensure survey, through observation, interviews of the residents, and review of the evening schedule, the surveyor determined that Island had insufficient staff to address the needs of the residents who consisted of two residents. One resident was bedbound and, at a minimum, two staff members were required to assist the resident in and out of bed, particularly in an emergency; but only one staff person was scheduled to work.

    2. At the follow-up survey, the deficiency remained. The bedbound resident continued as a resident at the facility, but only one staff person was present.

    3. The deficiency was classified as a Class III deficiency.

23. One deficiency was found regarding documentation showing the method of medication management on a resident's health assessment.

    1. At the relicensure survey, the method of administration of medication for one resident had not been documented by the

       health care provider. Island failed to ensure that the method of administration was available to the resident.

    2. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to records.

       Being unable to review the records, AHCA's surveyor terminated the survey.

    3. The deficiency was classified as a Class III deficiency.

    
    

24. One deficiency was found regarding the signing of medication administration records (MARs) by the staff person, who supervises the residents self-administering their medication, and at the time the medication is self-administered.

    1. At the relicensure survey, even though a staff person, at times, supervised residents when they self-administered their medication, that same staff person did not sign the MARs.5 The administrator, who did not supervise the self-administration medication, signed the MARs.

    2. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to records.

       Being unable to review the records, AHCA's surveyor terminated

       the survey.

       
       

    3. The deficiency was classified as a Class III deficiency.

    
    

25. One deficiency was found as to ensuring that medication is timely refilled.

    1. At the relicensure survey, a resident's (Resident No. 2) prescribed heart medication was empty. The staff was not aware as to whether the administrator had ordered a refill. However, the administrator had notified the resident's family member, who was responsible for providing the resident's medication, that the medication needed refilling, and the administrator was awaiting the medication at the time of the survey.

    2. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to inspect the facility and records. Being unable to inspect the facility and records, AHCA's surveyor terminated the survey.

    3. AHCA did not present evidence as to the classification of the deficiency.

26. One deficiency was found as to appropriate services being provided to meet the needs of residents.

    1. At the relicensure survey, Island's staff person, who prepared most of the meals, was not aware that Island's only two residents were on a no-salt diet. One of the food items for each

       evening meal prepared by the staff person contained salt, and the staff person was unaware of the food item's salt content.

       Further, Island's staff member was unaware of the name and

       location of a resident's (Resident No. 2) day program and was, therefore, unaware of the resident's whereabouts.

    2. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to inspect the facility and records. Being unable to inspect the facility and records, AHCA's surveyor terminated the survey.

    3. AHCA did not present evidence as to the classification of the deficiency.

27. One deficiency was found as to required activities being provided for the residents.

    1. At the relicensure survey, a determination as to whether required activities were being provided to the residents could not be made. An activities calendar was posted, however, the calendar did not reflect the time of day and duration of the activities.

    2. At the follow-up survey, the deficiency was uncorrected. Even though the activities calendar was posted and reflected the duration of the activities, the calendar did not reflect the time of day of the activities.

    3. AHCA did not present evidence as to the classification of the deficiency.

28. One deficiency was found as to maintaining sufficient

    non-perishable foods in case of an emergency.

    1. At the relicensure survey, Island did not have a week's supply of non-perishable foods in case of an emergency for its two residents. The administrator had made plans to replenish the non-perishable foods the following week.

    2. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to inspect the facility and records. Being unable to inspect the facility and records, AHCA's surveyor terminated the survey.

    3. The deficiency was classified as a Class III deficiency.

    
    

29. One deficiency was found regarding Island's furniture and furnishings being clean, in good repair, and reasonably attractive.

    1. At the relicensure survey, Island's carpet, throughout the facility, was stained with unidentifiable brown and black stains. Island's administrator indicated that the floors would be tiled, instead of carpeted, which would alleviate the problem. Additionally, in one resident's (Resident No. 1) room, both doors to the closet were off and leaning against the back wall of the closet.

    2. At the follow-up survey, the deficiency was uncorrected.

       
       

    3. The deficiency was classified as a Class III deficiency.

    
    

30. One deficiency was found regarding a current

    satisfactory fire safety inspection report being available for review.

    1. At the relicensure survey, Island did not have a current satisfactory fire safety inspection report for review.

    2. At the follow-up survey, the deficiency was uncorrected.

       
       

    3. The deficiency was classified as a Class III deficiency.

    
    

31. Island has been licensed since 1993. During all the relicensure surveys, the only deficiencies cited have been the deficiencies in this present matter.

32. Throughout its licensure, Island was continuously used by the former Department of Health and Rehabilitative Services as a facility to place residents, who were difficult to manage, on a temporary basis.

33. Due to multiple deficiencies being cited at the relicensure survey, AHCA recommended that Island's administrator obtain additional training. At the follow-up survey, Island's personnel files did not show that the administrator had obtained the additional training, and AHCA cited this failure to obtain the additional training as a deficiency. AHCA failed to demonstrate that the deficiency was an uncorrected deficiency for which Island was cited at the relicensure survey.

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties thereto pursuant to Section 120.569 and Subsection

    120.57(1), Florida Statutes.

    
    

35. Chapter 400, Part III, Florida Statutes, [Sections 400.401-400.454, Florida Statutes], is the Assisted Living Facilities Act. Section 400.401, Florida Statutes, provides guidance for administrative proceedings involving licenses for ALFs and provides in pertinent part:

    (3) The principle that a license issued under this part is a public trust and a privilege and is not an entitlement should guide the finder of fact or trier of law at any administrative proceeding or in a court action initiated by the Agency for Health Care Administration to enforce this part.

    
    

36. Section 400.414, Florida Statutes, provides for the denial or discipline of the license of an ALF and provides in pertinent part:

    1. The agency may deny, revoke, or suspend a license issued under this part or impose an administrative fine in the manner provided in chapter 120. At the chapter 120 hearing, the agency shall prove by a preponderance of the evidence that its actions are warranted.

       
       

    2. Any of the following actions by a facility or its employee shall be grounds for action by the agency against a licensee:

       
       

       * * *

       
       

       (h) 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.

       
       

37. Subsection 400.419, Florida Statutes, provides, among other things, the classifications of violations and provides in

    pertinent part:

    
    

    1. Each violation shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification of each violation on the face of the notice of the violation as follows:

       
       

       1. Class "I" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines present an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. . . . A class I violation is subject to a civil penalty in an amount not less than $1,000 and not exceeding $5,000 for each violation. A fine may be levied notwithstanding the correction of the violation.

          
          

       2. Class "II" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines directly threaten the physical or emotional health, safety, or security of the facility residents, other than class I violations. A class II violation is subject to a civil penalty in an amount not less than $500 and not exceeding

          $1,000 for each violation. . . . If a class II violation is corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense.

          
          

       3. Class "III" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or class II violations. A class III violation is subject to a civil penalty of not less than $100 and not

          exceeding $500 for each violation. A citation for a class III violation shall specify the time within which the violation is required to be corrected. If a class III violation is corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense.

          
          

       4. Class "IV" violations are those conditions or occurrences related to the operation and maintenance of a building or to required reports, forms, or documents that do not have the potential of negatively affecting residents. These violations are of a type that the agency determines do not threaten the health, safety, or security of residents of the facility. A facility that does not correct a class IV violation within the time limit specified in the agency- approved corrective action plan is subject to a civil penalty of not less than $50 nor more than $200 for each violation. Any class IV violation that is corrected during the survey will be identified as an agency finding and not as a violation.

          
          

    2. The agency may set and levy a fine not to exceed $500 for each violation which cannot be classified according to subsection (3). In no event may such fine in the aggregate exceed $5,000.

    
    

38. Section 400.434, Florida Statutes, provides for the right of entry and inspection by, among others, AHCA and its representatives and provides in pertinent part:

    Any duly designated officer or employee of

    . . . the agency [AHCA] . . . shall have the right to enter unannounced upon and into the premises of any facility licensed pursuant to this part in order to determine the state of compliance with the provisions of this part and of rules or standards in force pursuant thereto. . . . Any application for a license or renewal thereof made pursuant to this part shall constitute permission for, and complete acquiescence in, any entry or inspection of the premises for which the license is sought,

    in order to facilitate verification of the information submitted on or in connection with the application; to discover, investigate, and determine the existence of abuse or neglect; or to elicit, receive, respond to, and resolve complaints. Any current valid license shall constitute unconditional permission for, and complete acquiescence in, any entry or inspection of the premises by authorized personnel. . . .

    AHCA's surveyor was statutorily authorized to inspect Island and its records. By Island making application for relicensure, Island provided AHCA's surveyor permission to inspect its facility and records. Island improperly denied AHCA's surveyor access to its facility and records at the follow-up survey.

39. Because Island denied AHCA's surveyor access to the facility and records, the follow-up survey was terminated by the surveyor before completion. As a result, the surveyor was unable to determine whether a number of the previously cited deficiencies at the relicensure survey were corrected within the prescribed time period. AHCA argues that these deficiencies "should be deemed uncorrected for the purposes of adverse licensure actions and administrative sanctions" when a facility denies access in violation of Section 400.434. AHCA's argument is compelling.

40. For all the deficiencies cited at the relicensure survey, Island was given a specific period of time within which to correct the deficiencies, in accordance with Subsection 400.419(3). It is not unreasonable to consider the deficiencies to continue to be uncorrected until a follow-up survey is

    conducted to determine whether they have been corrected. When the licensee or license applicant prevents follow-up survey, it is also not unreasonable to consider the deficiencies uncorrected unless the licensee's or license applicant's action is reasonable under the circumstances of the particular situation. In the case at bar, unfortunately, both AHCA and Island share some responsibility in causing the termination of the follow-up survey before completion. However, denying AHCA's surveyor access to the facility and records was an unreasonable action and reaction by Island under the circumstances. Consequently, the deficiencies, which could not be reviewed and for which no

    determination was made at the follow-up survey as to whether they were corrected, are deemed uncorrected.6

41. Section 400.417, Florida Statutes, provides in pertinent part:

    (1) . . . An applicant for renewal of a license who has complied on the initial license application with the provisions of

    s. 400.411 with respect to proof of financial ability to operate shall not be required to provide proof of financial ability on renewal applications unless the facility or any other facility owned or operated in whole or in part by the same person or business entity has demonstrated financial instability as evidenced by bad checks, delinquent accounts, or nonpayment of withholding taxes, utility expenses, or other essential services or unless the agency suspects that the facility is not financially stable as a result of the annual survey or complaints from the public or a report from the State Long-Term Care Ombudsman Council.

    Rule 58A-5.014, Florida Administrative Code, provides in pertinent part:

    (5) License Renewal. . . .

    
    

    * * *

    
    

    (b) Applicants for renewal of a license shall not be required to provide proof of financial ability to operate unless the facility or any other facility owned or operated in whole or part by the same owner or business entity has demonstrated financial instability as referenced in 58A-5.021(2),

    F.A.C. When there is evidence of financial instability, applicants shall follow the requirements in Rule 58A-5.014(5)(b)1. or 2., F.A.C., below.

    Rule 58A-5.021, Florida Administrative Code, provides in pertinent part:

    1. The administrator or owner of a facility shall be responsible for maintaining fiscal records which accurately identify, summarize, and classify funds received and disbursed for the operation of the facility. Written accounting procedures and a recognized system of accounting shall be used to accurately reflect details of the business including residents' "trust funds" and other property. Written accounting procedures concerning trust funds shall include safekeeping and reporting procedures related to the income and expense records of the trust fund and frequency of reports to the resident. Other written accounting policies shall describe the facility's income and expense recordkeeping procedures including a description and frequency of financial statements and reports.

       * * *

       
       

    2. The facility shall:

    (a) Be administered on a sound financial basis consistent with good business practices. Evidence of filed bankruptcy of any owner; issuance of checks returned for insufficient funds; delinquent accounts; nonpayment of local, state, or federal taxes or fees; unpaid utility bills; tax or judgment liens against facility or owners property; failure to meet employee payroll; confirmed complaints to the agency or ombudsman council regarding withholding of refunds or funds due residents; failure to maintain liability insurance due to non- payment of premiums; non-payment of rent or mortgage; non-payment for essential services or adverse court action shall constitute prima facie evidence that the ownership lacks satisfactory proof of financial ability to operate the facility in accordance with the requirements of Chapter 400, Part III, F.S.

    Regarding the two deficiencies that Island failed to have fiscal records and that Island failed to show that it was financial stabile, AHCA has demonstrated a deficiency as to the fiscal

    records, a violation of Rule 58A-5.021(1). However, AHCA has failed to demonstrate a deficiency as to Island's financial stability and, therefore, that a violation was committed.

42. As to the deficiency regarding refunds, AHCA has failed to demonstrate that any refunds were due and, therefore, that a deficiency existed.

43. An applicant for licensure as an ALF is required to furnish AHCA proof of liability insurance. Subsection 400.411(5), Florida Statutes. Rule 58A-5.014, Florida Administrative Code, provides in pertinent part:

    (5) License Renewal. . . .

    (a) All applicants for renewal of a license shall submit the following:

    
    

    * * *

    
    

    2. Proof of liability insurance.

    
    

    Rule 58A-5.021, Florida Administrative Code, provides in pertinent part:

    (4) Facilities shall maintain liability insurance coverage in force at all times. On the renewal date of the facility's policy or whenever a facility changes policies, the facility shall file documentation of coverage with the AHCA central office. Such documentation shall be issued by the insurance company and shall include the name of the facility, that it is an assisted living facility, its licensed capacity, and the dates of coverage.

    Regarding the deficiency that Island failed to have proof of liability insurance, AHCA has demonstrated a violation Subsection 400.411(5) and Rules 58A-5.014(5)(a)2 and 58A-5.021(4).

44. Section 400.435, Florida Statutes, provides in pertinent part:

    (1) Every facility shall maintain, as public information available for public inspection

    under such conditions as the agency shall prescribe, records containing copies of all inspection reports pertaining to the facility that have been issued by the agency to the facility. Copies of inspection reports shall be retained in the records for 5 years from the date the reports are filed or issued.

    
    

    * * *

    
    

    (3) Every facility shall post a copy of the last inspection report of the agency for that facility in a prominent location within the facility so as to be accessible to all residents and to the public. Upon request, the facility shall also provide a copy of the report to any resident of the facility or to an applicant for admission to the facility.

    Rule 58A-5.024, Florida Administrative Code, provides in pertinent part:

    The owner or administrator of a facility shall maintain the following written records in a place, form and system ordinarily employed in good business practice. All records required by this rule chapter shall be accessible to department and agency staff.

    
    

    * * *

    
    

    1. Facility Inspection Records. Those which pertain to fire safety, food services, sanitation standards, and other licensing reports provided to the facility shall be available to the public under the following conditions.

       1. Inquiries for inspection reports may be routinely requested during the hours of 9:00

    a.m. -- 5:00 p.m., Monday through Friday. Other requests shall be permitted at the discretion of the owner or administrator.

    * * *

    
    

    (d) Administrators shall establish procedures to ensure availability of inspection records to the public.

    Regarding the deficiency that Island failed to post inspection reports, AHCA has demonstrated a violation Subsections 400.435(1) and (3) and Rule 58A-5.024(5).

45. Rule 58A-5.024, Florida Administrative Code, provides in pertinent part:

    The owner or administrator of a facility shall maintain the following written records in a place, form and system ordinarily employed in good business practice. All records required by this rule chapter shall be accessible to department and agency staff.

    (1) Facility Records.

    
    

    * * *

    
    

    (n) Each facility shall have a written procedure for contacting a resident's family, guardian, or health care provider in an emergency.

    
    

    As to the deficiency that Island failed to have a written procedure for contacting a resident's family in an emergency situation, AHCA has demonstrated a violation of Rule 58A- 5.024(1)(n).

46. Rule 58A-5.024, Florida Administrative Code, provides in pertinent part:

    The owner or administrator of a facility shall maintain the following written records in a place, form and system ordinarily employed in good business practice. All records required by this rule chapter shall be accessible to department and agency staff.

    (1) Facility Records.

    
    

    * * *

    
    

    (f) Personnel records for each staff member which contain, at a minimum, the original employment application with references furnished, verification of freedom from communicable disease, a copy of the staff member's job description, and written documentation of compliance with all staff training required by s. 400.452, F.S., and Rule 58A-5.0191.

    Rule 58A-5.0191, Florida Administrative Code, provides, among other things, the required training for all ALF staff. Island's personnel records failed to show that the staff had the required training or was exempt. Regarding the deficiency that Island failed to have personnel records showing that the staff were appropriately trained to provide services to residents, AHCA has demonstrated a violation of Rules 58A-5.0l91 and 58A-5.024(1)(f).

47. Regarding the deficiency that Island failed to have documentation showing that staff, who may come into contact with potentially infectious diseases, had received training in infection control measures, AHCA demonstrated a violation of Rules 58A-5.024(1)(f) and 58A-5.0191.

48. Rule 58A-5.020, Florida Administrative Code, provides in pertinent part:

    (1) When food service is provided by the facility, the administrator or a person designated by the administrator shall meet the following requirements:

    
    

    * * *

    
    

    (k) Reports of sanitation inspections performed by the county public health unit shall be on file showing corrections and dates of corrections for any deficiencies.

    
    

    Rule 58A-5.024 provides in pertinent part:

    
    

    (3) Food Services Records.

    
    

    * * *

    
    

    (b) All facilities shall maintain:

    1. Reports of sanitation inspections, corrections, and dates of corrections for any

       deficiencies.

    2. Dated menus for regular and therapeutic diets, corrected as served for six months.

    
    

    * * *

    
    

    (5) Facility Inspection Records. Those which pertain to fire safety, food services, sanitation standards, and other licensing reports provided to the facility shall be available to the public under the following conditions.

    
    

    As to the deficiency that Island failed to post the current health inspection report completed by the county public health unit, AHCA demonstrated a violation of Rules 58A-5.020(1)(k) and 58A-5.024(3)(b) and (5).

49. Rule 58A-5.0181, Florida Administrative Code, provides in pertinent part:

    (4) Examination Requirements for Admission.

    1. All of the following information is required for admission to an assisted living facility:

       1. The report of the health assessment dated and containing the signature, address, phone number, and Florida license number of the examining health care provider. The initial health assessment for a resident being admitted to a facility may be performed by a currently licensed health care provider from another state.

       2. A description of physical and mental status, including identification of any health-related problems and any functional limitations, and the following information:

          1. Whether the individual has apparent signs or symptoms of any communicable disease which is likely to be transmitted to other residents or staff.

          2. Whether the individual appears to be capable of administering his own medications with supervision or assistance from staff if necessary.

          3. Whether the individual is independent in

             activities of daily living, requires supervision with activities of daily living, or requires individual assistance with activities of daily living.

       3. Orders for care including medication, diet, and therapy.

       4. A statement that in the opinion of the examining health care provider, on the day the examination is given, the person's needs can be met in an assisted living facility which is not a medical, psychiatric, or nursing facility.

    2. If the above information is not contained in the health assessment report, the administrator shall obtain the information from the resident's health care provider within 30 days after admission using the Health Assessment for Assisted Living Facilities Care form.

       
       

       Further, Rule 58A-5.024 provides in pertinent part:

       
       

       (2) Resident Records. . .

       
       

       * * *

       
       

    3. Other resident records shall contain:

    
    

    * * *

    
    

    3. Health information as follows:

    
    

    * * *

    
    

    c. Description of resident's overall condition and level of care required, updated as needed.

    
    

    Regarding the deficiency that Island failed to have a current health assessment for each resident's status and condition, AHCA demonstrated a violation of Rules 58A-5.0181(4) and 58A- 5.024(2)(c)3.c. The Administrative Complaint did not allege a violation of Rule 58A-5.024.

50. Rule 58A-5.0181 provides in pertinent part:

    
    

    (6) Within 30 days following admission, each resident's capacity for self-preservation shall be assessed in accordance with the requirements of Rule Chapter 4A-40, F.A.C. Assistance needed to evacuate shall also be documented.

    
    

    Regarding the deficiency that Island failed to assess each resident's ability to self-preserve, or to get themselves out of the facility at the time of an emergency, AHCA demonstrated a

    violation of Rule 58A-5.0181(6).

51. Rule 58A-5.0181, Florida Administrative Code, provides in pertinent part:

    1. In order to be admitted to any facility, an individual shall meet the following criteria:

       1. The individual is able to perform the activities of daily living, with supervision or assistance if necessary.

       2. The individual is free from apparent signs and symptoms of any communicable disease which is likely to be transmitted to other residents or staff; however, a person who has Human Immunodeficiency Virus (HIV) infection may be admitted to a facility, provided that he would otherwise be eligible for admission according to this rule.

       3. The individual is in sufficient health so as not to require 24-hour nursing supervision.

       4. With respect to medication, the individual:

          1. Is capable of taking his own medication with or without supervision by trained staff, or

          2. Requires administration of medication, and the facility has a nurse to provide this service when the service is needed, or the resident or the resident's legal representative, designee, surrogate, guardian, or attorney-in-fact contracts with a licensed third party to provide this service.

       5. The individual has no bedsores or skin breaks classified by a health care provider as stage 2, 3, or 4 pressure ulcers.

       6. The individual's special dietary needs, if any, can be met by the facility.

       7. The individual is able to participate in social and leisure activities.

       8. The individual is capable of self- preservation in an emergency situation involving the immediate evacuation of the facility, with assistance with transfer as defined in Rule 58A-5.0131, if necessary.

       9. The individual is not bedridden.

       10. The individual has not been determined to be incapacitated pursuant to chapter 744, F.S., or, if so, has a legal guardian who is

           able to make decisions on his behalf.

       11. The individual is not a danger to self or others as determined by a health care

           provider or mental health professional as defined in s. 394.455(2), F.S.

       12. The individual does not require licensed professional mental health treatment on a 24- hour a day basis.

       13. The individual is at least 18 years of age.

    
    

    * * *

    1. Criteria for continued residency shall be the same as the criteria for admission, except as follows:

       1. The individual may be bedridden for no more than 7 consecutive days.

          
          

          * * *

          
          

          (c) A resident who does not meet the requirement specified in Rule 58A- 5.0181(1)(h), F.A.C., may remain in the facility provided the resident has a 24-hour attendant to assist the resident to evacuate in case of an emergency. The resident and the facility shall enter into a written agreement describing how the special needs of the resident will be met.

          * * *

          
          

    2. The administrator is responsible for monitoring the continued appropriateness of placement of a resident in the facility.

    
    

    As to the deficiency that Island continued to have a resident at the facility after the resident failed to satisfy criteria for admission and continued residency, AHCA demonstrated a violation of Rule 58A-5.0181(1). However, although AHCA demonstrated a violation of Rule 58A-5.0181(1), AHCA failed to present evidence as to the classification of the violation.

52. As to the deficiency that Island retained a resident in an inappropriate placement, AHCA demonstrated a violation of Rules 58A-5.0181(1) and (7). One resident failed to meet the

    criteria for continued residency at Island; however, the resident remained at Island. Placement was no longer appropriate at Island.

53. Rule 58A-5.019, Florida Administrative Code, provides in pertinent part:

    1. Administrators shall:

       1. Be at least 18 years of age.

       2. If employed on or after August 15, 1990, have a high school diploma or general equivalency diploma (G.E.D.), or have been an operator or administrator of a licensed assisted living facility in the State of Florida for at least one of the past 3 years in which the facility has met minimum standards. Administrators employed on or after October 30, 1995, must have a high school diploma or G.E.D.

       3. Complete the core training requirement pursuant to s. 400.452, F.S., and Rule 58A- 5.0191.

    Regarding the deficiency that Island failed to have documentation showing that the administrator met the qualifications of an administrator by completing core training, AHCA demonstrated a violation of Rule 58A-5.019(2)(c).

54. Rule 58A-5.019 provides in pertinent part:

    
    

    (5) The administrator of a facility shall:

    
    

    * * *

    
    

    (l) Ensure and document that the staff receive training as required under Rule 58A- 5.0191.

    
    

    Rule 58A-5.0191 requires the administrator and staff to meet certain training requirements. Island had no training records and no documentation showing that the training requirements had

    been met. Regarding the three deficiencies that Island failed to have documentation showing that the administrator had provided training to staff on CORE subjects in the staff's job duties and that the staff, who provided direct care, had received the required minimum training, AHCA demonstrated a violation of Rules 58A-5.0191 and 58A-5.019(5)(l).

55. Rule 58A-5.024(1), regarding facility records, provides in pertinent part:

    (h) Facilities shall maintain a written work schedule for all employees including provision for relief personnel and coverage for vacations, sick leave and emergencies. The work schedule shall reflect the 24-hour staffing pattern maintained by the facility for a given time period and shall include the owner or administrator if serving as staff to meet staffing ratios required by Rule 58A- 5.019, F.A.C.

    Regarding the deficiency that Island failed to have a written work schedule available, AHCA demonstrated a violation of Rule 58A-5.024(1)(h).

56. Rule 58A-5.019 provides in pertinent part:

    
    

    (5) The administrator of a facility shall:

    
    

    * * *

    
    

    (k) Ensure 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, and duly appointed in writing shall be in charge of the facility.

    
    

    Regarding the deficiency that Island failed to have a written designation or appointment of someone to be in charge of the facility during the absence of the administrator when the

    facility houses residents, AHCA demonstrated a violation of Rule 58A-5.019(5)(k).

57. As to the deficiency that Island's staff failed to receive required HIV and AIDS training, AHCA demonstrated a violation of Rule 58A-5.0191.

58. Rule 58A-5.0182, Florida Administrative Code, provides in pertinent part:

    (1) The administrator shall provide staff and services appropriate to the needs of the residents living in the facility.

    
    

    Rule 58A-5.019 provides in pertinent part:

    
    

    1. The administrator of a facility shall:

       (a) Employ sufficient staff in accordance with required staffing ratios and based on the following factors to assure the safety and proper care of residents in the facility:

       1. The physical and mental condition of the residents;

       2. The size and layout of the facility;

       3. The capabilities and training of the staff; and

       4. Compliance with all minimum standards.

       
       

       * * *

       
       

    2. Staffing Ratio.

    1. Notwithstanding the minimum staffing ratio specified herein, all administrators of facilities, including those composed of apartments, shall have sufficient staff to provide or arrange services for residents as required consistent with the level of care offered and to evacuate residents identified through the assessment required under Rule 58A-5.0181(6), F.A.C., as needing assistance if an emergency evacuation is required.

       Regarding the deficiency that Island had insufficient staff to meet the residents' needs, AHCA demonstrated a violation of Rules 58A-5.0182(1) and 58A-5.019(5)(a) and (6)(a).

59. Rule 58A-5.0182 provides in pertinent part:

    (6) Medication. The method for management of a resident's medications, whether self- administration, self-administration with supervision, or administration by licensed personnel, shall be as directed by the health care provider in the health assessment report required pursuant to Rule 58A-5.0181, F.A.C., or as prescribed on new orders.

    Regarding the deficiency as to the failure of Island to have the method of administration of one resident's medication documented by the health care provider, AHCA demonstrated a violation of Rule 58A-5.0182(6).

60. Rule 58A-5.0182(6) provides in pertinent part:

    
    

    1. Supervision of self-administered medication.

    1. A staff person, designated in writing, who is at least 18 years of age and who has access to, is responsible for, and is trained in the supervision of self-administered medications in accordance with Rule 58A- 5.0191, shall be available at all times.

    2. The designated staff person shall supervise the self-administered medication in the following manner:

       1. Obtain the medication container from the storage area or the resident.

       2. Ensure that the medication is given to the resident for whom it is prescribed at the time indicated on the prescription.

       3. Verify with the resident the accuracy of the dosage with the label and the name of the medication.

       4. Observe the resident self-administer the medication.

       5. Record the observed dosage taken on the medication administration record at the time taken.

    Regarding the deficiency that the signing of MARs was not done by the staff person who observes the residents self-administer their medication and at the time the medication is self-administered,

    AHCA demonstrated a violation of Rule 58A-5.0182(6)(b).

    
    

61. Rule 58A-5.0182(6) provides in pertinent part:

    
    

    (e) The administrator shall make every effort to ensure that prescriptions for residents whose medications are supervised or

    administered by the facility are refilled in a timely manner.

    
    

    As to the deficiency that Island's administrator failed to ensure the timely refill of medication, AHCA failed to demonstrate a violation of Rule 58A-5.0182(6). The administrator made a concerted effort to make sure that the resident's medication was timely refilled. Even assuming that a violation of Rule 58A- 5.0182(6) occurred, AHCA failed to present evidence as to the classification of the deficiency.

62. Rule 58A-5.0182 provides in pertinent part:

    
    

    1. Facilities shall offer personal supervision, as appropriate for each resident, including the following as needed:

       1. Supervision of diets as to quality and quantity, including documentation of the resident's refusal to comply with a therapeutic diet and notification to the health care provider of such refusal. However, a competent individual shall not be compelled to follow a restrictive diet. If a resident refuses to follow a therapeutic diet after the benefits are explained, a signed statement from the resident refusing the therapeutic diet is acceptable documentation of a resident's preferences. In such instances, daily documentation is not necessary.

    
    

    * * *

    
    

    (c) Awareness of the resident's general whereabouts, although the resident may travel independently in the community.

    
    

    As to the deficiency that Island failed to provide the appropriate services to meet the needs of the residents, AHCA demonstrated a violation of Rule 58A-5.0182(2). However, AHCA failed to present evidence as to the classification of the

    deficiency.

63. Rule 58A-5.0182 provides in pertinent part:

    
    

    1. Opportunities for social and leisure services to facilitate social interaction, enhance communication and social skills, and reduce isolation and withdrawal shall be provided. An activities calendar showing planned activities shall be posted or made available to residents in every building.

       1. The administrator or designee is responsible for the development and implementation of or arrangement for participation by residents in an ongoing activities program. The program shall provide diversified individual and group activities for each resident in keeping with each resident's needs, abilities, and interests. Activities planned and offered by the facility in consultation with the residents shall include recreational, social, and educational opportunities for the residents. Resident participation shall be voluntary, and the facility shall encourage and promote participation on the part of each resident. Scheduled activities shall be available at least 5 days a week for a total of not less than 10 hours per week. . . .

    Regarding the deficiency that Island failed to provide required activities for the residents, AHCA demonstrated a violation of Rule 58A-5.0182(4)(a). However, AHCA failed to present evidence as to the classification of the deficiency.

64. Rule 58A-5.020, Florida Administrative Code, provides in pertinent part:

    1. When food service is provided by the facility, the administrator or a person designated by the administrator shall meet the following requirements:

       
       

       * * *

       
       

       1. A one-week supply of non-perishable food, based on the number of weekly meals the facility has contracted with residents to

    serve, shall be on hand at all times. The quantity shall be based on the resident census and not on licensed capacity. The supply shall consist of dry or canned foods that do not require refrigeration and shall be kept in sealed containers which are labeled and dated. Canned goods shall not be bulging, dented, or rusted. The food shall be rotated in accordance with shelf life to ensure safety and palatability. Water sufficient for drinking and food preparation shall also be stored, or the facility shall have a plan for obtaining water in an emergency, with the plan coordinated with and reviewed by the local disaster preparedness authority.

    Regarding the deficiency that Island failed to maintain sufficient non-perishable foods in case of an emergency, AHCA demonstrated a violation of Rule 58A-5.020(1)(i). The Administrative Complaint cited the violation as Rule 58A- 5.020(1)(j); however, the incorrect cite is not fatal to a violation being found. Island was provided adequate notice of the grounds for the alleged violation, and evidence was presented at the hearing on the alleged violation without objection.

65. Rule 58A-5.022, Florida Administrative Code, provides in pertinent part:

    (1) Every facility shall:

    
    

    * * *

    
    

    (c) Keep all furniture and furnishings clean, in good repair and reasonably attractive.

    
    

    As to the deficiency that Island's furniture and furnishings were unclean, not in good repair, and not reasonably attractive, AHCA demonstrated a violation of Rule 58A-5.022(1)(c). However, the

    administrator had plans of improving the condition of the furnishings by tiling the floors.

66. Section 400.417, Florida Statutes, provides in pertinent part:

    (1) . . . A license shall be renewed upon the filing of an application . . . if the applicant has first met the requirements established under this part and all rules promulgated under this part. . . An applicant for renewal of a license must furnish proof that the facility has received a satisfactory firesafety inspection, conducted by the local fire marshal or other authority having jurisdiction, within the preceding 12 months.

    . . . .

    
    

    As to the deficiency that Island failed to have a current satisfactory fire safety inspection report available for review, AHCA demonstrated a violation of Subsection 400.417(1). However, the Administrative Complaint did not charge Island with a violation of Subsection 400.417(1), but with a violation of Rule 58A-5.023(18)(a). There is no such rule. Further, Rule 58A- 5.023(18) has nothing to do with satisfactory firesafety inspections.

67. AHCA did not present evidence as to the alleged deficiency that Island failed to develop and follow a written comprehensive emergency management for emergency care in violation of Rule 58A-5.024(1)(j), Florida Administrative Code. It is presumed that AHCA has abandoned this alleged violation.

68. AHCA alleged also in the Administrative Complaint that Island's administrator violated Subsection 400.452(8), Florida Statutes, by failing to obtain additional recommended training. However, AHCA failed to demonstrate a violation of Subsection

    400.452(8) in that it failed to demonstrate that the administrator's failure to obtain the additional recommended training was an uncorrected deficiency for which Island was cited at the relicensure survey.

69. By statutory definition, all the deficiencies classified as Class II and Class III deficiencies affect the health, safety, and welfare of the residents.

70. Section 400.17, Florida Statutes, provides, among other things, for the granting of a conditional license and provides in pertinent part:

    (3) A conditional license may be issued to an applicant for license renewal when the applicant fails to meet all standards and requirements for licensure. A conditional license issued under this subsection shall be limited in duration to a specific period of time not to exceed 6 months, as determined by the agency, and shall be accompanied by an approved plan of correction.

71. AHCA suggests a $500 civil penalty for each violation constituting a Class III deficiency and the denial of Island's application for renewal of its ALF license.

RECOMMENDATION

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

RECOMMENDED that the Agency for Health Care Administration enter a final order:

1. Imposing an administrative fine of $300 for each demonstrated violation consisting of a Class III deficiency as to

   the Administrative Complaint, totalling $6,100.

   
   

2. Issuing Island Retirement Home, Inc., a conditional license for a 6-month period under terms and conditions as determined by the Agency for Health Care Administration.

DONE AND ENTERED this 17th day of July, 1998, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1998.

ENDNOTES

1/ The hearing was conducted by video teleconference. Island forwarded its exhibits, which had been admitted into evidence, to this Administrative Law Judge. However, Island included photographs which were not offered for admission into evidence and were not admitted into evidence. The photographs have not been considered in the preparation of this recommended order.

2/ The survey document reflecting the results of the survey conducted on May 16, 1997, was not entered into evidence or made a part of the record. However, the parties presented testimony regarding the survey and the survey document and neither party objected to such testimony being presented.

3/ The survey document reflecting the results of the survey conducted on July 7, 1997, was not entered into evidence or made a part of the record. However, the parties presented testimony regarding the survey and the survey document and neither party objected to such testimony being presented.

4/ Island's administrator identified the staff person on duty as

a "friend." However, this Administrative Law Judge is not persuaded that the person was nothing more than a friend and was not working at the facility.

5/ This Administrative Law Judge is not persuaded that the staff person supervised all the self-administered medication by the residents; however, the finding is supported if the staff person supervised only one self-administration and the administrator signed the MAR.

6/ Island did not request another surveyor to complete the follow-up survey. However, if Island had made such a request and if AHCA had denied the request, whether AHCA's denial was reasonable would be an issue for the case at bar in determining whether the deficiencies should be deemed uncorrected.

COPIES FURNISHED:

Jennifer A. Steward, Esquire

Agency for Health Care Administration 1400 West Commercial Boulevard

Suite 110

Fort Lauderdale, Florida 33309

Sola Gafaru, Director

Island Retirement Home, Inc. 2906 West Island Drive Miramar, Florida 33023

Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive

Tallahassee, Florida 32308-5403

R. S. Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-004270

Orders for Case No: 97-004270