STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 98-4633

)

HARBORVIEW ACRES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Port Charlotte, Florida, on March 15, 1999.

APPEARANCES

For Petitioner: Karel L. Baarslag

Senior Attorney

Agency for Health Care Administration Post Office Box 60127

Fort Myers, Florida 33906-0127

For Respondent: Zia Butt

Administrator Harborview Acres, Inc. 4950 Pocatella Drive

North Port, Florida 34287

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of caring for a resident beyond the scope of Respondent's license and whether Respondent failed to ensure that an employee timely obtained a tuberculosis test.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 23, 1998, Petitioner alleged that Respondent operates an assisted living facility known as Harborview Acres in Port Charlotte.

The Administrative Complaint alleges that the August 24, 1998, survey revealed that Respondent's license did not authorize it to provide the care required by one of its residents, as required by Sections 400.407(3), 400.417(1), and 400.447(1), Florida Statutes, and Rules 58A-5.033(2)(c)2 and 58A-5.0184(1), Florida Administrative Code. Pursuant to Section 400.419, Florida Statutes, the Administrative Complaint seeks a $500 fine for this unclassified deficiency.

The Administrative Complaint alleges that a survey on August 24, 1998, revealed that Respondent failed to ensure that each staffperson had documentation that he or she was free of tuberculosis, as required by Rule 58A-5.019(5)(h)2, Florida Administrative Code. The Administrative Complaint alleges that Petitioner had cited this violation on an inspection dated June 18, 1996, and that Respondent had corrected the violation by the follow-up survey dated September 3, 1996. Pursuant to Section 400.419, Florida Statutes, the Administrative Complaint seeks a

$300 for this Class III deficiency.

At the hearing, Petitioner called two witnesses and offered into evidence one exhibit. Respondent called two witnesses and offered into evidence four exhibits. All exhibits were admitted.

The court reporter filed the Transcript on April 23, 1999.

FINDINGS OF FACT

1. Respondent owns and operates a licensed assisted living facility (ALF) known as Harborview Acres in Port Charlotte. Respondent's ALF license does not include an extended congregate care license or a limited nursing service license--both of which authorize an ALF to provide additional services to its residents.

2. Petitioner conducted an biennial survey of Respondent's facility on August 24, 1998. As a result of findings made during the survey, Petitioner cited Respondent for two deficiencies that are at issue in this case.

3. The first cited deficiency is Tag A 006, which asserts that Respondent's license does not authorize the type of care that it was providing to one resident, who is identified as Resident 3.

4. Petitioner's surveyors saw one meal during which Resident 3 refused to feed herself. She ate while a staffperson helped her eat, but, as soon as the staffperson walked away, Resident 3 began to spill food onto herself.

5. Resident 3 was confined to a wheelchair and required assistance in transfers from and to her wheelchair. She required assistance in various activities of daily living, such as dressing herself, combing her hair, and bathing.

6. However, unknown to the surveyor and staff, Resident 3 was ill with a urinary tract infection. A few days previously, she had been walking with a walker, but otherwise without assistance, and had been feeding herself.

7. The record does not permit a finding that the condition of Resident 3 was such as to require services beyond the scope of Respondent's license.

8. During the survey, one surveyor reviewed staff files and found that the documentation for Staff 3, who had been hired on July 12, 1996, revealed no tuberculosis test since August 17, 1997. Zia Butt, the administrator, admitted that the employee's test was overdue. As Ms. Butt explained, the employee had gone to the County Public Health Office for a tuberculosis test, but the office had been unable to conduct the test and told her to return in a week.

9. Petitioner properly classified this deficiency as a Class III deficiency. The failure of a caregiver to obtain annual tuberculosis tests indirectly or potentially threatens the physical or emotional health, safety, or security of the residents of the facility.

10. The surveyor gave Respondent until September 21, 1998, for Staff 3 to obtain a tuberculosis test. The record does not establish that Respondent failed to correct this deficiency within the time permitted. Likewise, the record does not

    establish the factual basis for the allegation that this is a repeated offense.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

12. Section 400.419(1)(c) provides:

    
    

    (c) 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 an administrative fine of not less than $100 and not exceeding $1,000 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 fine may be imposed, unless it is a repeated offense.

13. The statute provides that the timely correction of a cited Class III deficiency precludes the imposition of a fine, unless the deficiency is a "repeated offense."

14. Petitioner failed to prove that Respondent did not correct the deficiency in the permitted time, so the question is whether this deficiency is a "repeated offense."

15. The statutes and rules do not define what is meant by "repeated offense." It is unclear whether the prior offense must

    have been an uncorrected failure to obtain timely documentation of an annual tuberculosis test and whether this failure must pertain to Staff 3 or whether it may pertain to another staffperson.

16. Even assuming that a timely corrected deficiency concerning a different employee were sufficient, the record fails to establish by admissible evidence such a deficiency.

RECOMMENDATION

It is

RECOMMENDED that the Agency for Health Care Administration dismiss the Administrative Complaint against Respondent.

DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1999.

COPIES FURNISHED:

Karel L. Baarslag Senior Attorney

Agency for Health Care Administration Post Office Box 60127

Fort Myers, Florida 33906-0127

Zia Butt Administrator

Harborview Acres, Inc. 4950 Pocatella Drive

North Port, Florida 34287

Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-004633

Orders for Case No: 98-004633