vs. ) Case Nos. 01-1209
Respondent. )
A hearing was held pursuant to notice on September 17, 2001, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, in Pensacola, Florida.
For Petitioner: Christine T. Messana, Esquire
For Respondent: Richard P. Warfield, Esquire
Whether Respondent committed the violations in the Administrative Complaints and, if so, what penalty should be imposed.
The Agency for Health Care Administration (AHCA) filed an Administrative Complaint on October 4, 2000, alleging a Class I deficiency (Tag A1006) and seeking the revocation of the assisted living facility license of North Florida Living Facilities, d/b/a/ Pecan Grove Living Facility (Pecan Grove) as well as the imposition of administrative fines. Pecan Grove requested a formal administrative hearing and AHCA forwarded the case to the Division of Administrative Hearings on or about March 29, 2001. A hearing was scheduled for June 6, 2001, in Pensacola, Florida.
AHCA filed a second Administrative Complaint against Pecan Grove on or about May 2, 2001, alleging certain Class II deficiencies (Tags A718, A802 and A300) and also seeking the revocation of Respondent's license. AHCA filed a Motion to Consolidate and Motion for Continuation of Final Hearing. The cases were consolidated and a hearing was scheduled for July 18, 2001.
Respondent requested a continuance to secure the services of an attorney in this matter. The request was granted and the consolidated cases were set for hearing on September 17, 2001.
At hearing, AHCA presented the testimony of three witnesses, Robert L. Dubose, Sandra Corcoran, and Norma Endress. Petitioner did not offer any exhibits. Respondent presented the
testimony of Margot Robinson and David Davis. Respondent's Exhibits 1 through 5 were offered. Respondent's Exhibits 1, 2 and 5 were admitted into evidence, Respondent's Exhibits 3 and 4 were rejected.
A Transcript, consisting of one volume, was filed on October 5, 2001. Respondent requested more than ten days after the filing of the Transcript in which to file Proposed Recommended Orders. That request was granted. Petitioner and Respondent filed Proposed Recommended Orders on October 26, 2001 and November 1, 2001, respectively.
AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes.
Pecan Grove is an assisted living facility which is owned by North Florida Living Facilities. Pecan Grove has a licensed capacity of eight beds and is located in a home in Pensacola, Florida.
Case No. 01-1209
Robert DuBose is the Director of Environmental Health for the Escambia County Health Department. His office is responsible for inspection of facilities, including assisted living facilities, regarding environmental health matters. His agency works in cooperation with AHCA in that AHCA handles
licensure and related inspections and his agency handles the environmental health portion of the inspections. His agency is primarily interested in facility sanitation and issues that would be related to the health of the residents.
In September of 2000, Mr. DuBose received a call from an AHCA nurse informing him of certain environmental health conditions at Pecan Grove. Also in September of 2000, AHCA responded by letter to a resident of Pecan Grove regarding a complaint made by the resident regarding the facility. The letter to the resident stated that an unannounced visit to the facility would take place. Mr. DuBose, the Deputy Director of Environmental Health, and a facility inspector from his agency went to Pecan Grove and conducted an inspection of the facility.
During the inspection, Mr. DuBose and his colleagues found numerous environmental health problems:
I was appalled at the condition of this facility. And as I indicated in my written statement, I couldn't believe that something like this had a license in the State of Florida. I just -- I have never seen anything like this that had any type of license from the State in all the years of being a health inspector. I've seen things like this in private residences where we had dilapidated homes, indigent folks living there, people that were mentally ill, living conditions like this, but I just can't -- I still don't understand how or why this place was licensed.
And I'm sure, you know, AHCA may have some feelings in the same -- it's not that someone -- I'm not sure what happened but it's not any facility we want to have licensed, I guess is what I was trying to say. It was just -- there was roaches in the refrigerator. There was roaches in the building. There were no linens on the beds. People were sleeping on mattresses without covers, pillows without covers. There were evidence of rats in the heater closet.
There was no hot water in one of the bathrooms. There was some improper storage of garbage.
When we were outside, the mosquitos [sic] were just eating us up. I mean, we had bites all over us just waking [sic] around outside. And we found the storage containers with stagnant water in them sitting around in the yard. Thee [there] was sewage overflowing and they had a septic tank that a laundry or the laundry wastewater was overflowing, some type of sewage was overflowing in the middle of the back of the yard.
There were rat burrows up under the house. It was -- it was just the carpets were filthy. You couldn't even tell what color they were. It's just housing that you would
-- that I've -- I haven't seen anything like that since, I suppose, the times that we did the I-110 road control project when we put I-110 through Pensacola and the people -- there was some low income people in that area and the people moved out of the houses and we had to go in there or our inspectors had to go in to kill the rats and fleas before we tore the houses down and it was similar to that type of condition.
And like I say, I've seen some elderly people that were mentally ill living in that type of condition, but never, never seen any
kind of a facility like that. No question that this was a health hazard. The people needed to be moved.
These environmental health problems described by
Mr. DuBose constitute gross environmental health hazards. Rats carry fleas that can cause disease when they bite people.
Additionally, rats urinate as they travel and carry a disease called leptospirosis in their urine and other diseases. Upon inspection, Mr. DuBose found mosquito larvae in several containers in all different stages of development indicating the containers had been standing for some time. Mosquitoes carry several diseases including dengue fever and West Nile virus.
The sewage overflow in the backyard also constituted a health hazard even though it was from wash water, as that is still highly contaminated wastewater.
The inside of the facility also contained many health hazards including inadequate air conditioning and a leak in the sink so severe that the bottom of the cabinet under the sink was saturated from water before a bucket had been placed there to catch the dripping water. The inside of the refrigerator was 70 degrees which was significantly above the temperature adequate to safely store food. Roaches were found inside the refrigerator. Roaches are a health hazard because they track contaminants onto food. A burner on the stove was not working causing concern that an electrical fire could result. The
carpets and floors were filthy. There were no sheets on the beds and the mattresses and pillows were filthy. There were rat droppings and pecan shells in the water heater closet which was adjacent to the bedrooms and hallway. The bathrooms were in poor condition in that there was no hot water in the hand sink in one of the bathrooms and no faucet on another.
Mr. DuBose and his colleagues called Adult Protective Services requesting they send an inspector there as the inspection team felt the residents needed to be removed immediately. The owner agreed to move the residents immediately and the residents were moved to another facility owned by Respondent, Willow Grove.
Margot Robinson, administrator of Pecan Grove and wife of the owner of Pecan Grove, attempted to explain some of the health hazards found by Mr. DuBose. She and her husband had started to remodel the facility. They had removed some carpet and started painting one of the bedrooms. She also explained that on the day of Mr. DuBose's inspection, she had ordered a staff person to remove the bed linens for washing and to bleach the mattresses. Further, she explained that a house across the street from Pecan Grove had burned down several months prior to the inspection and that rats were coming to Pecan Grove from a pile of wood left from the burned house. She also accused a former resident of causing damage to the facility.
AHCA placed a moratorium on admissions to Pecan Grove on September 26, 2000. By letter dated October 24, 2000,
AHCA lifted the moratorium on admissions indicating that Tag A1006, which with Respondent had been cited in the Administrative Complaint, had been corrected.
Case No. 01-2107
As the result of a complaint received by AHCA, Sandra Corcoran and Norma Endress, registered nurse specialists employed by AHCA, conducted a survey inspection of Pecan Grove in April 2001. The complaint was in regard to two issues: threat of harm to a resident and that a resident was not getting the type of food he could eat. During the survey inspection, Resident #1 informed the surveyors that he had been threatened by Resident #3 that if Resident #1 changed the thermostat, that Resident #3 would hit him. Resident #3 was present at the beginning of the survey inspection. He was a tall man whose demeanor was threatening to a point that even the AHCA nurses were intimidated by him.
Resident #3 first lived at Willow Grove, but was moved to Pecan Grove. He had a history of psychological problems and would at times check himself into a local psychiatric care facility. At the time of the survey visit, Resident #3 had been given his discharge notice from Pecan Grove. The AHCA surveyors
instructed the staff person to call the police if Resident #3 made threats to the other residents.
Resident #1 was thin and pale and complained to the surveyors that he was not given appropriate food to eat. That is, Resident #1's teeth were in very poor condition and he requested soft foods such as Vienna sausage, potted meat and oatmeal. During the survey inspection, Ms. Corcoran did not observe these types of food to be available for Resident #1. However, Mrs. Robinson explained that Resident #1 had been given Promote, a nutritional drink, to supplement his diet.
Ms. Corcoran asked a staff person to look at Resident #1's "1823" which is the document that contains any medical orders for the resident as well as diet requirements. However, none of the records for the resident were at the facility. All of the residents' records had been taken to Willow Grove by David Davis, area manager for Pecan Grove and
Willow Grove. Mr. Davis' office was at Willow Grove and he had taken the records to his office to update them.
Pecan Grove failed to have available the residents' medical records at the facility.
AHCA placed a moratorium on admissions to Pecan Grove which was lifted on May 11, 2001, as the result of corrected deficiencies including the three deficiencies with which
Respondent was charged in the Administrative Complaint, i.e., Tag A718, Tag A802, and Tag A300.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Sections 120.569 and 120.57, Florida Statutes.
The Administrative Complaint in Case No. 01-1209 seeks to impose a $5,000 administrative fine pursuant to Section 400.419, Florida Statutes, and to revoke Respondent's license pursuant to Section 400.414(1)(a), Florida Statutes. The Administrative Complaint cited a Class I deficiency for being in violation of Rule 58A-5.023(1)(c), Florida Administrative Code.
The Administrative Complaint in Case No. 01-2107 seeks to revoke Respondent's license pursuant to Section 400.414(1)(a),(e) and (5) Florida Statutes. The Administrative Complaint cited Class II deficiencies for violations of Section 400.428(1), Florida Statutes, and Rules 58A-5.020(1)(c) and
58A-024(3), Florida Administrative Code.
The burden of proof in this proceeding is on the agency. Because of the proposed penalties in the consolidated cases, the agency is required to prove the allegations against Respondent by clear and convincing evidence. Department of
Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
Section 400.419, Florida Statutes, defines Class I and II deficiencies and sets forth the parameters of any administrative fine to be imposed regarding such deficiencies:
400.419 Violations; administrative fines.--
Each violation of this part and adopted rules 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 on the written notice of the violation as follows:
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. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. A Class I violation is subject to an administrative fine in an amount not less than $5,000 and not exceeding $10,000 for each violation. A fine may be levied notwithstanding the correction of the violation.
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 an administrative fine in an amount not less than $1,000 and not exceeding $5,000 for each violation.
A citation for a class II violation must specify the time within which the violation is required to be corrected.
In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors:
The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.
Actions taken by the owner or administrator to correct violations.
Any previous violations.
The financial benefit to the facility of committing or continuing the violation.
The licensed capacity of the facility.
Section 400.414(1), Florida Statutes, reads in pertinent part as follows:
400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds.--
The agency may deny, revoke, or suspend any license issued under this part, or impose an administrative fine in the manner provided in chapter 120, for any of the following actions by an assisted living facility, any person subject to level 2 background screening under s. 400.4174, or any facility employee:
An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.
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(e) One or more class I, three or more class II, or five or more repeated or recurring identical or similar class III violations that are similar or identical to violations which were identified by the agency within the last 2 years.
* * * Administrative proceedings challenging
agency action under this subsection shall be reviewed on the basis of the facts and conditions that resulted in the agency action.
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(5) An action taken by the agency to suspend, deny, or revoke a facility's license under this part, in which the agency claims that the facility owner or an employee of the facility has threatened the health, safety, or welfare of a resident of the facility be heard by the Division of Administrative Hearings of the Department of Management Services within 120 days after receipt of the facility's request for a hearing, unless that time limitation is waived by both parties. The administrative law judge must render a decision within 30 days after receipt of a proposed recommended order.
Section 400.428(1)(a), Florida Statutes, reads as follows:
400.428 Resident bill of rights.--
No resident of a facility shall be deprived of any civil or legal rights,
benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to:
Live in a safe and decent living environment, free from abuse and neglect.
Rule 58A-5.023(1), Florida Administrative Code, reads in pertinent part as follows:
58A-5.023 Physical Plant Standards.
GENERAL REQUIREMENTS.
The ALF shall be located, designed, equipped, and maintained to promote a residential, non-medical environment and provide for the safe care and supervision of all residents.
The facility's physical structure, including the interior and exterior walls, floors, roof and ceilings shall be structurally sound and in good repair. Peeling paint or wallpaper, missing ceiling or floor tiles, or torn carpeting shall be repaired or replaced. Windows, doors, plumbing, and appliances shall be functional and in good working order. All furniture and furnishings shall be clean, functional, free-of-odors, and in good repair. Appliances may be disabled for safety reasons provided they are functionally available when needed.
In order to ensure a safe and sanitary environment, the ALF shall be subject to annual inspection by the county health department pursuant to Rule Chapter 64E-12.
Rule 58A-5.033, Florida Administrative Code, reads in pertinent part as follows:
58A-5.033 Administrative Enforcement
(5) ADMINISTRATIVE SANCTIONS. Administrative fines shall be imposed for class I violations, or class II, III, or IV violations which are not corrected within the time frame set by the agency, and for repeat class II or III violations, as set forth in s. 400.419, F.S.
Rule 58A-5.020(1)(c), Florida Administrative Code, reads as follows:
58A-5.020 Food Service Standards.
GENERAL RESPONSIBILITIES. When food service is provided by the facility, the administrator or a person designated in writing by the administrator shall:
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(c) Provide regular meals which meet the nutritional needs of residents, and therapeutic diets as ordered by the resident's health care provider for residents who require special diets.
Rule 58A-5.024, Florida Administrative Code, requires assisted living facilities to maintain resident records on the premises.
The Administrative Complaint in Case No. 01-1209, alleges that Respondent violated Rule 58A-5.023(1)(c), Florida Administrative Code, by not ensuring a safe and sanitary environment. Petitioner has met its burden of proof regarding this allegation. Pursuant to Section 400.419, Florida Statutes, this constitutes a Class I violation in that the environmental
conditions found in Pecan Grove at the time of the Health Department inspection presented a substantial probability that serious physical harm would result to the residents.
While the record is not clear as to precisely what actions were taken to correct the violations, the lifting of the moratorium on admissions indicates that Respondent took some action to correct the violations as contemplated by Section 400.419(1)(a), Florida Statutes. However, the gravity of the violations as to the environmental conditions found by the Health Department and potential harm to the residents outweigh any mitigation offered by Respondent. Accordingly, the fine of
$5,000.00 sought to be imposed by AHCA is appropriate for this violation. Section 400.419(2)(a) and (b), Florida Statutes.
The Administrative Complaint in Case No. 01-2107, alleges that Respondent violated Section 400.428(1), Florida Statutes, by not ensuring that two of its residents experienced safe living conditions because of threatening behavior of another resident. Petitioner failed to meet its burden of proof regarding this allegation. The evidence presented regarding any threats made by Resident #3 were largely based on hearsay. Moreover, Respondent had given notice to Resident #3 that he must permanently leave the facility and he in fact did so.
The Administrative Complaint in Case No. 01-2107 also alleges that Respondent violated Rule 58A-5.020(1)(c), Florida
Administrative Code, regarding meeting the nutritional needs of Resident #1. Petitioner failed to meet its burden of proof as to this allegation. Resident #1 did not testify, the staff member who the Administrative Complaint alleges confirmed the non-availability of requested foods did not testify, and no written order by a health care provider, or anyone else, indicating that a therapeutic diet was required for this resident was introduced.
The Administrative Complaint in Case No. 01-2107 also alleges that Respondent violated Rule 58A-5.024(3), Florida Administrative Code, in that Respondent failed to have the residents' files on the premises. Petitioner has met its burden of proof as to this allegation. The Administrative Complaint in Case No. 01-2107 does not seek an administrative fine for this Class II violation.
AHCA seeks revocation of Respondent's license pursuant to Section 400.414(1)(a), Florida Statutes, for the Class I violation asserted and proven by AHCA in Case No. 01-1209.
AHCA also seeks revocation of Respondent's license based on the three Class II violations alleged in Case No. 01-2107, of which one Class II violation was proven.
Section 400.414(1)(a) and(e), Florida Statutes, allows AHCA to seek revocation of the license of an assisted living facility for an intentional or negligent act which seriously
affects the health, safety, or welfare of a resident of a facility. AHCA has proven one Class I violation and one Class II violation. Unlike the statutory provision imposing administrative fines, Section 400.414, Florida Statutes, does not provide for mitigating circumstances to be considered and states that administrative proceedings challenging agency action under Section 400.414(1), Florida Statutes, shall be reviewed on the basis of the facts and conditions that resulted in the agency action.
The facts and conditions established in Case
No. 01-1209 constitute environmental health conditions that seriously affect the health and safety of the residents of Pecan Grove. Mr. DuBose's testimony that he had never seen conditions so deplorable is compelling. The fact that minor renovations had begun at the time of the investigation is not persuasive.
Accordingly, the agency's position that Respondent's license be revoked is not unreasonable. While the $5,000 administrative fine proposed by the agency is justified, it is not appropriate to impose such a fine in light of licensure revocation.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That the Agency for Health Care Administration enter a final order revoking Respondent's license for Pecan Grove Living Facility.
DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida.
BARBARA J. STAROS
Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001.
Christine T. Messana, Esquire
Richard P. Warfield, Esquire
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
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.
