STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 01-2812

)

ROBERT SCHMIDT AND ) RITA SCHMIDT, d/b/a DIXIE LODGE, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal administrative hearing on September 10, 2001, at 210 North Palmetto Avenue, Daytona Beach, Florida, before the Honorable Stephen F. Dean, duly-assigned Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administrative 2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

For Respondent: Walker Richardson, Administrator

Dixie Lodge

507 South Woodland Boulevard DeLand, Florida 32720

STATEMENT OF ISSUES

The issue is whether the licensee, Robert Schmidt, should be subject to an administrative fine for failure to meet the

background screening requirements at Dixie Lodge, an assisted living facility (hereinafter Respondent), and, if so, the amount.

PRELIMINARY STATEMENT

Respondent was notified by an Amended Administrative Complaint dated June 20, 2001, of the Agency's intent to impose an administrative fine in the amount of $1,000.00 against Respondent, the licensee of the assisted living facility, Dixie Lodge, 547 South Woodland Boulevard, DeLand, Florida, for retaining an employee who failed to meet background screening requirements and who worked in direct contact with residents. Respondent filed a petition for formal administrative hearing to dispute the Agency's action. The matter was referred to the Division of Administrative Hearings and this hearing ensued.

At the hearing, Petitioner presented the testimony of two witnesses and one composite containing nine exhibits which was received into evidence. Respondent presented the testimony of one witness and Exhibits One through Four were received into evidence.

Petitioner submitted Proposed Findings that were read and considered.

FINDINGS OF FACT

1. The Agency for Health Care Administration (hereinafter the Agency) is the state agency responsible for the licensing and regulation of assisted living facilities. Respondent is licensed to operate as an assisted living facility in DeLand, Florida.

2. Robert A. Cunningham was called as a witness for the Agency. Mr. Cunningham is a Health Facility Evaluator II.

   His duties include surveying assisted living facilities, adult family homes and adult day care centers.

3. Mr. Cunningham testified that he was familiar with Dixie Lodge because he has been surveying this facility for approximately 15 years. On or about May 16, 2001,

   Mr. Cunningham conducted a complaint investigation of Dixie Lodge.

4. Mr. Cunningham identified Petitioner's Exhibit One as a complaint investigation form. This contains a summary of his investigative findings. The last finding was that a care- giving employee, who did not meet the screening requirements, had been retained as an employee in a "contact" position.

5. Mr. Cunningham identified Petitioner's Exhibit Two as a copy of the Agency's letter to the facility administrator outlining the findings of the complaint investigation. It states that the facility was in violation of Section

   400.4174(2), Florida Statutes, and Rule 58A-5.019(3), Florida Administrative Code, regarding background screening on employees. The letter dated June 26, 2001, states that the inspection findings have been revised to reflect Tag A 1115, a Class II deficiency, as the result of an amendment in the law, effective May 15, 2001.

6. Mr. Cunningham identified Petitioner's Exhibit Three as a copy of the recommendation for sanction inspection report narrative of the inspection conducted on May 16, 2001.

   Mr. Cunningham testified that the recommendation for sanction was prepared by Robert Dickson, a Facility Evaluator Supervisor in the area office.

7. Mr. Robert Dickson was called as a witness for the Agency. His duties included supervising the field surveyors, who conduct the surveys of the licensed facilities, and reviewing and approving the survey work findings.

8. Mr. Dickson is familiar with the survey at issue in this proceeding.

9. Mr. Dickson identified Petitioner's Exhibit One through Nine. Mr. Dickson identified Petitioner's Exhibit Three as a copy of the sanction recommendation that he prepared.

10. Mr. Dickson identified Petitioner's Exhibit Five as a copy of Section 400.414, Florida Statutes (2000), which

    gives the Agency the authority to deny, revoke licenses, and impose administrative fines.

11. Mr. Dickson identified Petitioner's Exhibit Six as a copy of Section 400.4174, Florida Statutes (2000), regarding background screening and exemptions.

12. Mr. Dickson identified Petitioner's Exhibit Seven as a copy of Rule 58A-5.019, Florida Administrative Code, regarding staffing standards and background screening.

13. Mr. Dickson identified Petitioner's Exhibit Eight as a copy of Respondent's assisted living facility (standard) license for Dixie Lodge.

14. Mr. Dickson identified Petitioner's Exhibit Nine as a copy of Respondent's request for a formal administrative hearing.

15. Mr. Walker testified that at the time in question on May 16, 2001, his staff employee, Mr. Michael Roberts, did not have an exemption from background screening.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this case. Section 120.57(1), Florida Statutes.

17. The Agency is authorized to license and maintain regulatory oversight over assisted living facilities pursuant

    to Chapter 400, Part III, Florida Statutes, and Chapter 58A-5, Florida Administrative Code.

18. Section 400.402(6), Florida Statutes (2000), provides that an assisted living facility is a building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.

19. Section 400.414(1)(f), Florida Statutes (2000), provides that the Agency may, among other things, fine a facility for retaining an employee subject to level background screening standards under Section 400.4174(2), Florida Statutes, who does not meet the screening standards of Section 453.03, Florida Statutes, and for whom exemptions from disqualification have not been provided by the Agency.

20. Section 400.4174(2), Florida Statutes (2000), provides that the owner or administrator of an assisted living facility must conduct Level 1 background screening, as set forth in Chapter 435, on all employees hired on or after October 1, 1998, who perform personal services as defined in Section 400.402(17), Florida Statutes. The Agency may exempt

    an individual from employment disqualification as set forth in Chapter 435.

21. Section 435.06(2), Florida Statutes (2000), provides the employer must either terminate the employment of any of its personnel found to be in non-compliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening in not required unless the employee is granted an exemption from disqualification pursuant to Section 435.07, Florida Statutes.

22. Respondent failed to place an employee who did not pass the screening requirement in a job not requiring screening.

23. Section 400.419, Florida Statutes, which was amended by a bill passed and approved by the Governor on May 15, 2001, defines the classes of violations for which fines can be levied by the Agency. A Class I violation is one that presents an imminent danger to residents. A Class II violation is one that directly threatens the physical health or emotional health or safety of a resident. A Class III violation is one that potentially threatens the physical or emotional health or safety of a resident. A Class IV violation is one relating to conditions and maintenance or required reports that do not have the potential to negatively

    effect residents. This law provided that a fine of between

    
    

    $500.00 and $1,000.00 could be levied for a Class III violation.

24. The failure to discharge the employee or place the employee in a position not requiring screening is not a violation that presents an imminent danger or directly threatens the physical or emotional health or safety of a resident. It, at worse, constitutes a potential threat to the health or safety of residents. Therefore, it is properly classed a Class III violation.

25. In this case, the employee sought and was granted an exemption within a month of the cited violation. The employee's appeal was pending when the inspection took place. Further, the amendment to the law on the day prior to the inspection moved the violation from unclassified without fine, to one for which a fine of not more than $1,000.00 or less than $500.00 can be levied.

26. Given the foregoing mitigating factors it does not seem fair or warranted to seek the maximum fine.

RECOMMENDATION

Based upon the Findings of Fact, Conclusions of Law, and in consideration of the mitigating factors, it is

RECOMMENDED:

That the Agency enter a final order imposing a fine of not more than $500.00 against Respondent for failure to remove an employee who failed to meet the background screening requirements from a position working in direct contact with residents.

DONE AND ENTERED this _____ day of October, 2001, in Tallahassee, Leon County, Florida.

___________________________________ STEPHEN F. DEAN

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 19th day of October, 2001.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Walker Richardson, Administrator Dixie Lodge

507 South Woodland Boulevard DeLand, Florida 32720

Diane Grubbs, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive

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: 01-002812

Orders for Case No: 01-002812