.STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 99-4616

)

NORTHPOINTE RETIREMENT )

COMMUNITY, )

)

Respondent. )

)

)

AGENCY FOR HEALTH CARE )

CARE ADMINISTRATION )

)

Petitioner, )

)

vs. ) Case No. 99-4618

)

NORTHPOINTE RETIREMENT )

COMMUNITY, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing on March 2, 2000, pursuant to due notice in Pensacola, Florida. The case was heard by P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The appearances were as follows:

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administration Building 3, Suite 3408D

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: Mohamed Mikhchi, Ph.D., pro se

Northpointe Retirement Community 5100 Northpointe Parkway

Pensacola, Florida 32514 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent should be subjected to a fine or sanction for retaining a resident with a State II "pressure ulcer" at its Northpointe Retirement facility (hereinafter Northpointe) and if so, in what amount. It also must be resolved whether the Respondent has been maintaining incomplete file documentation concerning its staff and, if so, whether such violations should be the subject of a fine.

PRELIMINARY STATEMENT

The Respondent, through its president and owner, Mohamed Mikhchi, was notified by an Administrative Complaint, filed October 15, 1999, of the Petitioner agency's intent to impose a fine in the amount of $500.00, against the Respondent as licensee of an Assisted Living Facility (ALF). That facility is known as Northpointe Retirement Community, located at 5100 Northpointe Parkway, Pensacola, Florida. The agency made an initial determination that Northpointe had retained one of its residents who had a "Stage II" pressure ulcer in violation of relevant rules.

The Respondent filed a Petition for Formal Hearing concerning this complaint. The Respondent was then notified by

the agency, by Administrative Complaint of October 14, 1999, of its intent to impose a fine of $500.00 against the Respondent for not having all required documents as to two of its five employee files reviewed during a compliance survey. The Respondent filed a petition to contest that complaint and a formal hearing was requested. Ultimately the two proceedings were consolidated.

The cause came on for hearing as noticed. The agency presented the testimony of two witnesses and two composite exhibits. Mohamed Mikhchi, the president and owner of the Respondent, testified and presented a total of four exhibits at the hearing. Upon conclusion of the hearing the parties requested a transcript thereof and availed themselves of the right to submit proposed recommended orders on an extended briefing schedule. Thus, the proposed recommended orders were timely submitted and have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Agency for Health Care Administration (Agency) is an agency of the State of Florida executive branch responsible for the licensing and regulation of assisted living facilities in the state. The Agency filed the Administrative Complaints which engendered the subject dispute. The Agency, however, has dismissed its Administrative Complaint which gave rise to Case No. 99-4616, because the Agency since learned information which

   would make the prosecution of that case, involving the Stage II decubitis ulcer, inappropriate.

2. The Respondent corporation by and through its president and owner, Mohamed Mikhchi, is an ALF. The corporation and Mr. Mikhchi are duly licensed and authorized to do business in Florida as an ALF. Upon being served with the Administrative Complaints, the Respondent timely availed itself of its right to a formal proceeding pursuant to Sections 120.57 and 120.569, Florida Statutes.

3. Ms. Jacqueline Klug was called as a witness for the agency. She investigates complaints against state-licensed facilities. She has served in this position for approximately three years and is familiar with Northpointe because she participated in the original survey and the follow-up survey (see "Tag A213").

4. Composite Exhibit No. 1, identified by Ms. Klug, is a survey report of a complaint investigation conducted on

   February 9, 1998, by Ms. Klug. The Northpointe facility was not in compliance with appropriate rules, cited below, because on February 9, 1998, the employees working at the facility did not all have documentation that they were free from communicable diseases on file in the relevant personnel files maintained at the facility.

5. A survey was also conducted as a later complaint investigation on October 7, 1999. Ms. Walker testified that she

   participated in that complaint investigation. She found that on October 7, 1999, the employee files in question were still incomplete and the deficiency concerning the inclusion of a record that each such employee was free from communicable disease had not yet been corrected. Indeed, an employee hired on September 16, 1999, and one hired on October 2, 1999, did not have the required nurses' licenses in each employee file.

6. Ms. Karen Walker was called as a witness for the agency. She is a Health Facility Evaluator II. It is her business to survey ALF, hospitals and nursing homes. She has surveyed the Northpointe facility, participating in the survey of October 7, 1999.

7. Ms. Walker cited Northpointe for incomplete employee files during the survey of October 7, 1999. Employee files of the two nurses did not contain a copy of the nurses' professional licenses. The Respondent established that the professional licenses had been earned by the nurses in question but simply had not yet been forwarded to the nurses and therefore to the personnel files by the state licensing agency, the Board of Nursing. The Respondent has also acted to correct the other above-found record deficiency.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding in accordance with Section 120.57(1), Florida Statues.

9. An assisted living facility is a facility providing room and board to its elderly or disabled residents and also providing to its residents one or more personal services constituting assistance with the activities of daily living.

   See Section 400.402(1)(6)(17), Florida Statutes (1999).

   
   

10. Section 400.407(1), Florida Statutes (1999), provides that a license is required to operate an ALF in Florida.

11. Section 400.401(3), Florida Statutes (1999), provides that a license issued under this part is a public trust and a privilege and not an entitlement, and that this principle should guide the finder of fact or trier of law in any administrative or judicial proceeding.

12. Section 400.419(1)(c), Florida Statutes (1999), provides that a "Class III Violation" is a condition or occurrence related to the operation and maintenance of a facility or to the personal care of residents which the agency determines indirectly or potentially threatens the physical or emotional health, safety or security of facility residents. A Class III Violation is subject to an administrative fine of not less than

    $100.00 and not more than $1,000.00 for each violation. A citation for a Class III Violation must specify the time allowed for correction of the violation. If a Class III Violation is timely corrected no fine may be imposed.

13. The amount of fine sought in the Administrative Complaint is $500.00 for this Class III Violation. That is

within the statutory range of Section 400.419(1)(c), Florida Statutes, of $100.00 to $1,000,00. In light of the failure to timely correct the deficiencies, after specification by the agency of the correction time period, established by the proof in this case, but also in light of the countervailing circumstance that the nurses' licenses in question had been earned and were of record in the state licensing records, albeit not yet supplied to the personnel files of the Respondent facility, only a $300.00 fine is warranted under these mitigating and aggravating circumstances, when they are balanced together. See Section 400.419(1)(c), Florida Statutes.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, recommended that a final order be entered by the Agency for Health Care Administration finding the Respondent Northpointe Retirement Community guilty of the above deficiencies and the failure to timely correct them as found and concluded in more detail above, and imposing an administrative fine in the amount of $300.00.

DONE AND ENTERED this 22nd day of May, 2000, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 22nd day of May, 2000.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration Building 3, Suite 3408D

1717 Mahan Drive

Tallahassee, Florida 32308

Mohamed Mikhchi, Ph.D. Northpointe Retirement Community 5100 Northpointe Parkway

Pensacola, Florida 32514

Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk

Agency for Health Care Administration Building 3, Suite 3431

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 99-004616

Orders for Case No: 99-004616