STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PLAZA WEST,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
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) Case No. 01-3068
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AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
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vs. )
) FREEDOM VILLAGE OF SUN CITY ) CENTER LTD., d/b/a PLAZA WEST, )
)
Respondent. )
Case No. 01-4490
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RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in these consolidated cases on March 20, 2002, by video teleconference, at sites in Tampa and Tallahassee, Florida, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Eileen O'Hara Garcia, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701
For Respondent: Karen L. Goldsmith, Esquire
Alex Finch, Esquire
Goldsmith, Grout, & Lewis, P.A. 2180 Park Avenue North, Suite 100
P.O. Box 2011
Winter Park, Florida 32790-2011 STATEMENT OF THE ISSUES
The issue in Case No. 01-3068 is whether the licensure status of Petitioner, Plaza West, should have been changed from standard to conditional, effective May 15, 2002. The issue in Case No. 01-4490 is whether Respondent, Plaza West, committed the violations alleged in the Amended Administrative Complaint dated October 23, 2001, and, if so, what penalty should be
imposed.
PRELIMINARY STATEMENT
By letter dated June 22, 2001, the Agency for Health Care Administration (Agency) notified Plaza West that as a result of the survey completed on May 18, 2001, its licensure status was changed from standard to conditional, effective May 15, 2001.
According to the letter, the basis for the change of licensure status was that, during the survey, Plaza West was cited for two Class I deficiencies. Specifically, the Agency alleged that the
deficiencies were the result of Plaza West's failing "to maintain proper sanitation in the kitchen" and "to maintain proper training and competency in the kitchen." In a Petition for Formal Hearing filed with the Agency, Plaza West challenged the allegations and the change of licensure status. On
August 2, 2001, the Agency forwarded the matter to the Division of Administrative Hearings. The case was designated DOAH Case No. 01-3068.
In a two-count Amended Administrative Complaint (Amended Complaint) dated October 23, 2001, the Agency stated its intention to impose an administrative fine on Plaza West in the amount of $26,000 pursuant to Subsections 400.23(8)(a), 400.102(1)(a) and (d), 400.121(1), and 400.19(3), Florida
Statutes. Count I of the Amended Complaint alleged that Plaza West failed to prepare, distribute, and serve food under sanitary conditions in violation of Rule 59A-4.1288, Florida Statutes, which incorporates by reference 42 C.F.R.
483.35(h)(2). In Count II of the Amended Complaint, the Agency alleges that Plaza West failed to employ sufficient support personnel competent to carry out the functions of the dietary service in violation of Rule 59A-4.1288, Florida Administrative Code, which incorporates by reference, 42 C.F.R. 483.35(b). The Amended Complaint alleged that these violations were Class I deficiencies.
Plaza West challenged the allegations in the Amended Complaint and filed a Petition for Administrative Hearing (Petition). On November 19, 2001, the Agency forwarded the Amended Complaint and the Petition to the Division of Administrative Hearings. This case was designated DOAH Case No. 01-4490.
Plaza West filed an uncontested Motion to Consolidate the two cases, which was granted by Order of Consolidation entered on December 20, 2001. Prior to the cases being consolidated, the final hearing in Case No. 01-3068 was scheduled for
October 5, 2001, but was continued until November 14, 2001, upon granting of an Amended Motion for Continuance. Thereafter, the parties requested and were granted further continuances.
Pursuant to the Order issued February 18, 2002, the final hearing was rescheduled and conducted on the date noted above.
Prior to the evidentiary portion of the hearing, the parties stipulated to several facts that required no proof at hearing. The stipulated facts have been incorporated in the Findings of Fact herein. One fact to which the parties stipulated was that, with regard to Tag F362, the staff of Plaza West had adequate training at the time of the survey, but did not implement that training. The effect of this stipulated fact is to modify the charge in Count II of the Amended Complaint and the second charge in the June 22, 2001, letter referenced above.
At hearing, the Agency presented the testimony of two witnesses: Padraic Juarez, an environmental administrator with the Florida Department of Health, who was accepted as an expert in sanitation and food safety; and Suzanne Knapp, an Agency surveyor, who was accepted as an expert in dietary services.
The Agency offered and had two exhibits received into evidence. Plaza West presented the testimony of four witnesses: Barry Bolay, the certified dietary manager at Plaza West at the time of the survey; Craig Hedberg, Ph.D., a professor at the University of Minnesota, who was accepted as an expert in hazardous food and microbiology; Robert Johnson, administrator and assistant executive director of Plaza West; and Mariza Cedero, dietary supervisor at Plaza West. Plaza West offered no exhibits into evidence.
A hearing transcript was filed on April 8, 2002. The parties filed Proposed Recommended Orders which have been considered in preparation of this Recommended Order.
FINDINGS OF FACT
The Agency is the state agency responsible for licensing and regulating nursing homes in Florida under Part II, Chapter 400, Florida Statutes.
Plaza West is a nursing home licensed by and subject to regulation by the Agency pursuant to Part II, Chapter 400,
Florida Statutes. The nursing home is located at 12 American Eagle Boulevard, Sun City, Florida.
The Agency conducted an annual re-certification survey of Plaza West on May 15-18, 2001, to ensure the facility's compliance with applicable state and federal regulations. The results of the survey are reported on a form identified as "HCFA-2567," commonly known as a "Form 2567" ("survey form").
The survey form identifies each alleged deficiency by reference to a tag number ("Tag"). Each Tag of the survey form includes a narrative description of the alleged deficiency and cites the relevant rule or regulation violated thereby.
There are two Tags at issue in this proceeding, Tag F371 and Tag F362.
Tag F371 references 42 C.F.R. 483.35(h)(2), which requires that facilities "store, prepare, distribute, and
serve food under sanitary conditions." The Agency alleges that Plaza West improperly stored leftover food and potentially hazardous foods and, thereby, placed residents in the facility, who were fed by mouth, in jeopardy.
Tag F362 references 42 C.F.R 483.35(b), and requires that facilities "employ sufficient support personnel competent to carry out the functions of the dietary service." The Agency stipulated that at the time of the survey, facility staff had
received in-service training in the area of safe food practices, but alleges that the staff failed to implement those practices.
Subsection 400.23(8), Florida Statutes, requires the Agency to assign a "class" rating to the deficiencies alleged in the survey form. The Agency assigned a Class I rating to the deficiencies alleged in Tags F371 and F362. A Class I rating is authorized in Section 400.23(8)(a), Florida Statutes (2001), for any deficiency that the Agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in the facility.
When the Agency alleges a Class I deficiency in the survey form, Subsection 400.23(7), Florida Statutes, requires the Agency to change the rating of the facility's license to conditional. Accordingly, after the Agency assigned Tags F371 and F362 as Class I deficiencies, it was required to change the licensure rating of Plaza West from standard to conditional, effective May 15, 2001.
The Tag F371 was based on observations by the Agency surveyor assigned to observe the main kitchen and two pantry areas at Plaza West on May 15, 2001, during the May 2001 re- certification survey.
Plaza West has a main kitchen and a serving pantry on both the first floor and the second floor. Food is prepared in the main kitchen and taken to the pantries, where it is served to the residents.
On the morning of May 15, 2001, Ms. Suzanne Knapp (surveyor or Agency surveyor), conducted an initial tour of the main kitchen and the second floor pantry. Later that day, the surveyor conducted an in-depth review of the main kitchen and the first and second floor pantry areas.
During the initial tour of the first floor pantry on May 15, 2001, at about 9:50 a.m., the Agency surveyor observed that the paper towel dispenser at the hand wash sink was empty. The Food Code, which is applicable to nursing homes, requires that the facility have a method for dietary staff to dry their hands on a single service item. Paper towels meet that description.
At the time the surveyor made the observation described in paragraph 13, there were paper towels underneath the hand wash sink in a drawer for use by facility staff when the top dispenser was empty. However, after observing the empty paper towel dispenser, the surveyor did not advise facility staff of her observation or inquire of staff as to the availability of another method for staff to dry their hands at the hand wash sink. Because the surveyor never raised this as a
concern during the initial tour or any other time during the survey, staff never informed her of the second source of paper towels.
During the initial tour of the main kitchen, at about 10:00 a.m., the Agency surveyor made the following observations:
there were no paper towels at the one of two hand wash sinks,
the ice scoop holder attached to the outside of the ice machine was dirty; 3) there was dust on the vents on the upper outside part of the ice machine; 4) the third compartment of a three-compartment sink used to "process" (wash, rinse, and sanitize) pots and pans contained water with a sanitizing solution that was at 100 ppm of sanitizing solution rather than at the manufacturer's required concentration of 200 ppm; 5) some cutting boards were in a storage rack that was on a dirty shelf;
6) the hand wash sink next to the food preparation sink did not have a barrier between the two sinks. None of these items, standing alone, would rise to the level of a Class I deficiency.
At the time of the initial tour, the ice scoop holder, which was attached to the outside of the ice machine, was dirty. When this was observed by the surveyor, there was no ice scoop or similar device in the holder. While the ice machine was operable and full of ice, there is no indication of what the ice was used for and how it was retrieved from the machine.
With regard to the dust on the vent on the upper part of the ice machine, the surveyor was concerned that some of the dust particles could fall into the ice or on food.
The surveyor was concerned that the sanitizing solution in the third compartment of the sink in the main kitchen was not strong enough to adequately reduce the bacteria on the pots and pans. The concern of the surveyor was reasonable, if there was an indication that the weaker solution had been used to sanitize items. However, there is no indication that pots and pans were being washed at the time surveyor determined that the strength of the solution was not the proper strength. Moreover, there is no indication that items were about to be sanitized in the solution or had been sanitized in the solution and, if so, what the strength of the solution was at that time.
The surveyor observed that there was no barrier between the hand wash sink and the food preparation sink. The surveyor believed that the absence of such a barrier could cause cross contamination if the hand-washing splash got on food items being prepared in the food preparation sink. While this is a possibility, there is no indication that either the food preparation sink or the hand sink was being used during the observation. Thus, the concern regarding cross-contamination is merely speculative. Additionally, this configuration, with the
hand wash sink next to the food preparation sink, had been approved during the planning and/or construction phase, by the Agency's Plans and Construction Division. Finally, this identical configuration was in place during the survey immediately prior to the May 2001 survey and was not cited as a deficiency.
During the initial tour, at about 10:10 a.m.,
the surveyor went to the second floor food service pantry, where she observed cooked scrambled eggs, called boil-in-the-bag eggs, on the counter top. The eggs were in the thick plastic bag, which was about half full of eggs, and wrapped in Saran Wrap.
About three cooked sausage links and a few slices of cooked bacon, separately wrapped in Saran Wrap, were also on the counter. The eggs, sausage, and bacon were away from any heat or cooling source.
Mr. Barry Bolay, the Certified Dietary Manager for the facility, accompanied the surveyor to the second floor pantry and was with her when she observed the cooked scrambled eggs, the bacon, and the sausage on the counter. At that time, Mr. Bolay told the surveyor that the facility did not keep leftover cooked scrambled boil-in-the-bag eggs and that the eggs, bacon, and sausage were to be thrown away. However, Mr. Bolay explained that the food would be taken to the main kitchen and disposed of there.
During the survey, the surveyor was provided with a copy of the facility’s policy regarding “Refrigerated Leftover Storage.” The policy provided the following: “Leftover foods will not be saved and re-used for human consumption if there is any doubt of wholesome quality. A leftover is a product that has been on the service line one time.” The policy prohibits the facility from re-using food that "has been exposed in serving carts or at residents' tables" and sets forth guidelines regarding the length of time specified foods should be in the refrigerated.
The refrigerated leftover storage policy lists foods which may be stored for a maximum of seven days, a maximum of three days, and those foods which may not be saved. Cooked eggs are specifically included in the list of foods that are "not to be saved." Consistent with this policy, cooked scrambled boil- in-the-bag eggs that are not served at the meal for which they are prepared are discarded, whether or not they have been on the service-line or the residents' tables.
On May 15, 2001, at approximately 2:10 p.m., the surveyor conducted an in-depth review of the main kitchen. First, the surveyor interviewed facility staff to determine if the facility had a system in place to calibrate its food probe thermometers. After being advised that the facility did have such a system, the surveyor asked Mr. Bolay or other staff to
bring her two probe thermometers that are regularly used to take the temperatures of food in the kitchen. Upon being provided with two thermometers, the surveyor inserted the thermometers into a carton of milk that had been taken from the milk cooler. There was a difference of 13 degrees in the temperatures registered by the two thermometers. The surveyor then asked Mr. Bolay to calibrate the thermometers. In response to the surveyor's directive Mr. Bolay put water and ice in a cup for the purpose of calibrating the thermometers.
The surveyor's opinion was that Mr. Bolay put too much water and not enough ice in the cup when he was preparing to calibrate the thermometers and that this would not allow a freezing point environment necessary to calibrate the thermometers. Based on the opinion expressed to him by the surveyor, Mr. Bolay retrieved another cup and packed it with ice, added a small amount of water, and then inserted the two probe thermometers. After Mr. Bolay followed the surveyor's instructions, the thermometers still were not calibrated correctly and in order to calibrate them, "adjustments had to be made to the thermometers." Once the probe thermometers were adjusted, the temperature of the milk was taken again and the temperature of the milk was determined to be at a safe level.
It is important to calibrate thermometers that are used in facilities in order to check the temperature of foods
and ensure that they are kept at a safe temperature. In this case, when the two probe thermometers regularly used by the staff were provided to the surveyor, they were not calibrated. However, once the thermometers were calibrated, it was determined that the milk, which was being stored in the milk cooler, was at a safe temperature.
While in the main kitchen for the in-depth review, the Agency surveyor observed three bags of cooked scrambled boil-in- the-bag eggs in the reach-in refrigerator. The bags were stacked on top of each other and each bag was partially filled with cooked scrambled boil-in-the-bags eggs and wrapped in Saran Wrap. None of the bags were labeled or dated, but one of the bags appeared to be identical to the one that the surveyor had seen that morning in the second floor pantry. Also, in the reach-in refrigerator were three cooked sausage links wrapped in Saran Wrap that appeared identical to the sausage that was in the second floor pantry at about 10:10 a.m. that same day.
The surveyor asked Mr. Bolay why the eggs were in the reach-in refrigerator after he had stated, that morning that the eggs would be discarded. In responding to the surveyor, Mr. Bolay did not deny that one of the bags of cooked eggs and the three links of cooked sausage were the same ones that were observed in the second floor pantry at about 10:10 a.m. that morning. However, Mr. Bolay was surprised that the cooked boil-
in-the-bag eggs were in the refrigerator and told the surveyor that he did not know why the eggs had not been discarded, who put the eggs and sausage in the refrigerator, or why they were put there. Mr. Bolay reiterated to the surveyor his earlier statement that this occurrence was against facility policy and also indicated that employees who are known to violate this policy are disciplined.
Even after the survey, Mr. Bolay investigated the matter and still was unable to determine who put the cooked boil-in-the-bag eggs and cooked sausage links in the reach-in refrigerator and why they were put there.
The credible testimony of Mr. Bolay was that leftover cooked boil-in-the-bag eggs are never served to residents at the facility because the policy prohibits these eggs from being saved, Mr. Bolay also indicated that, even in absence of such a policy, cooked boil-in-the-bag eggs would not be served because they can not be reheated in a manner to make them palatable.
The cooked scrambled boil-in-the-bag eggs were to be discarded and, thus, there was no need for the bags to be labeled. Moreover, it was the facility's policy to discard any food items which were unlabeled and undated, unless the time that they were placed in the refrigerator could be verified. In this case, the three bags of cooked boil-in-the-bag eggs and the three cooked sausage links were not labeled and the time that
they were placed in the refrigerator could not be verified. Therefore, pursuant to the facility's policy and/or procedures regarding unlabeled foods, the eggs and sausage would have been discarded and not served to residents.
Eggs are categorized by the Food Code as a potentially hazardous food. They are protein and possess a high moisture level, which can support the rapid progressive growth of bacteria. However, because the boil-in-the-bag eggs are a pasteurized product, the level of potential hazard was within federally approved standards. Accordingly, if cooked boil-in- the-bag eggs were cooled within the applicable guidelines, they would not necessarily harbor food-borne illnesses. It would be more likely that contamination by another source would make them hazardous and there was no evidence that the eggs were so contaminated.
The safe temperature for potentially hazardous foods, such as eggs, to be stored is 41 degrees F. The Food Code allows cooling down of hazardous foods from 140 degrees F. to 70 degrees F. in two hours and to 41 degrees or less within six hours.
To determine if foods are cooled within the applicable federal guidelines, there must be a system of labeling to determine if that level is being met.
The temperatures of the bags of cooked eggs in the reach-in refrigerator were taken with calibrated thermometers at about 2:40 p.m. The three bags of eggs were tempted at 48 degrees F., 50 degrees F., and 66 degrees F. The surveyor believed that these were not safe temperatures for the eggs, which were a potentially hazardous food.
The three plastic bags containing cooked scrambled boil-in-the-bag eggs, wrapped in Saran Wrap, were not labeled and no determination was made as to when the eggs were cooked, whether they ever reached 170 degrees F. and when they were placed in the refrigerator.
Immediately after Mr. Bolay or other staff took the temperature of the cooked boil-in-the-bag eggs as directed by the surveyor, he discarded the three bags of eggs. This action was consistent with the facility's policy that leftover eggs were "not to be saved."
As part of his job as certified dietary manager, Mr. Bolay inspects the main kitchen several times a day,
including the reach-in-refrigerator. Based on this practice and his knowledge of the facility's policy that cooked eggs are not to be saved, if he had seen the eggs in the reach-in refrigerator, he would have discarded them or had staff to do so.
Facility staff are trained to discard unlabeled food or, if unsure, to bring it to the attention of the certified dietary manager, the supervisor, or chef. With regard to unlabeled foods, the credible testimony of Mr. Bolay is that employees are trained that, "[i]f in doubt, throw it out."
Based on the evidence presented, it is not known whether the boil-in-the-bag eggs in the reach-in refrigerator were safe to eat. Without information as to when the eggs were cooked, whether they ever reached the appropriate temperature, and when the cooling process began, no determination can be made as to whether the eggs were cooling down properly under the applicable federal guidelines.
During the in-depth review of the main kitchen, on May 15, 2001, at about 2:40 p.m., the surveyor observed two or three pans, covered with foil, in the reach in refrigerator. In the pans were corn beef hash and pre-cooked link sausage.
On May 15, 2001, at or about 12:45 p.m., the prep cook removed the corn beef hash from the can, placed it in a pan for the following morning's breakfast, and stored it in the reach-in refrigerator. The corn beef hash had not been heated prior to being put in the reach-in refrigerator and was not to be heated until the next day.
On May 15, 2001, at 12:45 p.m., the prep cook removed the pre-cooked link sausage from the freezer, placed the pre-
cooked sausage in a pan, and put it in the reach-in refrigerator. The pre-cooked link sausage was not heated that day, but was to be heated and served for breakfast the following day.
The procedure described in paragraphs 42 and 43 reflect and followed the normal "prep procedure" or routine utilized at Plaza West.
The pans with the corn beef hash and the pre-cooked link sausage were not dated or labeled, but it was possible to verify when those food items were put in the pan and the refrigerator, and who put them there. Moreover, there is no requirement that "prep foods" be labeled.
The canned corn beef hash and pre-cooked link sausage are not hazardous foods. The corn beef is a canned processed food and the sausage links were pre-cooked and came frozen from the supplier. Because these foods are in "a ready-to-eat condition," they do not come within the meaning of potentially hazardous foods as it relates to achieving a suitable cooking temperature and/or the cooling process described in paragraph 33.
During the in-depth review of the main kitchen at about 2:40 p.m., on May 15, 2001, the surveyor observed raw, uncracked eggs in a large plastic "cylinder-type container" in the reach-in refrigerator. At the time of this observation, the
surveyor believed that the reach-in refrigerator was not maintaining food at 41 degrees as required by the Food Code. Despite this concern, the Agency surveyor did not take or direct staff to take the temperature of the eggs.
At the time of the survey, the refrigerator units, including the reach-in refrigerator and the walk-in refrigerator or cooler, were fully operational and functional and at the proper temperature.
Although the reach-in refrigerator was working properly at the time of the survey, the Agency surveyor believed otherwise. Based on the mistaken belief that the reach-in refrigerator was not working properly, on May 15, 2001, at approximately 3:00 p.m., the surveyor told faculty staff to remove and/or discard "the potentially hazardous food stored in the reach-in refrigerator and not to store potentially hazardous food in this unit until it was assured that the food could be maintained at the safe temperature of 41 degrees F or less."
From a safety perspective, labeling is not a concern with storage of raw eggs. The only concern with uncooked eggs is that the eggs be stored or held at the proper temperature, 40-45 degrees F. Storing raw eggs at temperatures within that range limits the growth of salmonella within those eggs.
The surveyor did not specify the foods in the reach-in refrigerator that she deemed to be "potentially hazardous."
Immediately after the surveyor instructed facility staff to remove and/or discard the "potentially hazardous food," the staff started to remove food from the reach-in refrigerator. The surveyor continued the in-depth review of the main kitchen. A few minutes after the surveyor first observed the large plastic bin containing the raw, uncracked eggs in the reach-in refrigerator, she saw them in the walk-in cooler stored on a shelf.
There was a misunderstanding between the surveyor and facility staff regarding the removal of "potentially hazardous foods" from the reach-in refrigerator. By her instructions, noted in paragraph 52, the surveyor intended for the staff to discard the "potentially hazardous foods," including the uncracked raw eggs that were in the reach-in refrigerator. Facility staff who were charged with complying with the surveyor's instructions understood these instructions to require only that the "potentially hazardous food," be removed from the reach-in refrigerator.
Facility staff apparently understood that the surveyor's directive regarding removal of potentially hazardous foods was based on the surveyor's belief that the reach-in refrigerator was not functioning properly and was not cooling foods to 41 degrees F. or less. Based on this understanding or interpretation of the directive, facility staff removed the raw
uncooked eggs from the reach-in refrigerator and placed them in the walk-refrigerator or cooler.
Although the temperature of the raw, uncracked eggs was never taken, the eggs were stored in refrigerator units that were fully operational and functional and at the proper temperature. Therefore, it is reasonable to assume that the raw eggs were at the temperature required for storage of raw eggs. The Agency's presumption to the contrary is rejected, in light of the fact that refrigerator units were fully operational, functional, and at the proper temperature.
The pre-cooked link sausage and the corn beef hash were not hazardous foods and the method utilized for storage of these foods was appropriate.
There were no food-borne illnesses in the facility at the time of the survey.
The reach-in refrigerator is in the main kitchen and is used primarily for storing food prepared for the next meals and was working properly at the time of the survey.
During the survey, there was a personal beverage cup in the food preparation area of the main kitchen. This violates the Food Code, which prohibits staff from having personal beverages in the facility's food zones, but this deficiency, standing alone, would not constitute a Class I deficiency. Leaving or having a personal beverage in the food preparation
area also violated the policy of Plaza West. After the cup was observed by the surveyor and the facility dietary supervisor, Maritza Cedona, who was accompanying the surveyor at this time, Ms. Cedona, immediately removed the cup from the area. No food was being prepared at the time or in the area where the cup was observed.
During the in-depth review of the main kitchen the surveyor observed two bins in which glass dessert dishes and/or coffee cups were stored. On the bottom interior surface of one of the bins were broken pieces of glass, apparently from one or more of the dishes stored in the bin. On the bottom interior surface of the other bin were loose coffee grounds. This violates the requirement that surfaces used to store equipment should be kept free of foreign matter or dust particles, and that such surfaces should be washed, rinsed, and sanitized. This violation, standing alone, would not constitute a Class I deficiency.
During the in-depth review of the main kitchen, at about 2:15 p.m., a cook was observed slicing onions with a slicer. A few minutes later, the surveyor observed that the cook had completed that task and there was a piece of plastic or a plastic bag on top of the slicer. When a piece of plastic is over a piece of kitchen equipment, it typically means that the equipment has been cleaned and is ready for use. In this case,
the plastic was not covering the slicer, but was placed across the top of it.
The surveyor believed that the placement of the plastic on the slicer was an indication that it had been washed. In fact, the slicer had not been washed. The cook had only wiped the slicer with a towel. The slicer had to be disassembled before it could be washed, rinsed, and sanitized. Because the cook could not disassemble the slicer, this job was done by the chef and/or the dietary supervisor. The slicer had not been disassembled and cleaned immediately after it was used because the dietary supervisor, who would have cleaned it that day, was with the surveyor during that time.
When the surveyor concluded that the slicer had not been washed, and apparently assumed it would not be washed, only fifteen minutes had passed since she had observed the cook slicing onions. Based on the facility's practice, there is no indication that the slicer would not have been disassembled and washed in a timely fashion and prior to its being used again.
During the in-depth review of the main kitchen, the surveyor observed dirty pots and pans stacked on top of each other, on a rack that was suppose to be used for clean pots and pans.
The surveyor observed that at one of the two hand wash sinks in the main kitchen, the soap dispenser was empty.
However, there was a dispenser with sanitizing solution at the sink. The sanitizer is an acceptable substitute for soap and an appropriate "stop gap until employees could get soap."
In the facility's main kitchen, there was a large bulk container that had a bag of flour stored inside. The bottom interior surface of the container was heavily caked with flour and other debris, which likely were pieces of the bag which contained the flour. This deficiency standing alone, would not constitute a Class I deficiency.
It is routine in the food service area that foods be labeled and dated. Based on this "routine"," the Agency's survey report noted that the surveyor's observation that "[m]any covered food items stored in the walk-in cooler [in the main kitchen] were without dates and a label of contents." Neither this recorded observation nor other evidence or testimony at hearing, detail, describe, or otherwise specifically identify the items referred to on the survey form. Absent such information and a reference to applicable Food Code provisions or other regulations requiring labeling, it is unclear what the items were and whether there is a requirement that they be labeled.
On May 15, 2001, the surveyor conducted a noon meal observation at the first floor pantry. During the noon meal, when there was no more ground chicken, the certified dietary
manager removed two pieces of whole chicken from a serving pan and sent it to the main kitchen to be ground. When facility staff returned with the ground chicken, the container with the ground chicken was placed across the top of the steam table and not into the steam table well. Prior to serving the ground chicken to residents, the ground chicken was put on individual plates, heated in the microwave, and then served to the residents. The temperature of the ground chicken was not taken before it was served to the residents.
The Food Code requires that when food is reheated, if it is not at a safe temperature of 140 degrees F. or above, it is required to be at 165 degrees F. Because the temperature of the ground chicken was not taken after being removed from the microwave, the temperature of the ground chicken could not be determined.
The surveyor observed the activities described in paragraph 68, including the ground chicken being served to residents. However, the surveyor did not advise facility staff that the chicken should not be served to the residents. If, in fact, the Agency believed that the ground chicken posed a threat of transmitting a food borne illness to the residents who were going to be eating it, the Agency surveyor likely would have advised the facility to not serve the chicken to the residents.
With regard to Tag F362, the Agency alleges that although the dietary staff at the facility was trained in proper food storage and preparation, the staff failed to implement the training. Under Tag F362, the Agency alleges that the facility violated 42 C.F.R. 483.35(b), by failing to employ sufficient support personnel competent to carry out the functions of the dietary service.
According to the survey report, this deficiency or violation was evidenced during the survey by "improper storage of potentially hazardous foods, and improper use of the reach-in refrigerator (prep cooler), located on the cook's line." The Agency alleged that the staff failed to implement and adhere to their in-service training on safe food practices and that their failure to do so "threatened residents with food borne illness." No evidence was presented to support these allegations.
The Agency based the Tag F362 deficiency on the facility's alleged improper storage of potentially hazardous food and improper use of the reach-in refrigerator. Initially, the allegations under Tag F362 were that the staff had not received in-service training on safe food practices, and that the staff had failed to implement the practices. Subsequently, in accordance with the stipulation of the parties, the alleged deficiency under Tag F362 was modified to charge only that the
facility staff failed to implement the in-service training they had received on safe food service practices.
The statement of deficiencies and findings under Tag F362 references Tag F371 and the federal regulation cited under the latter tag. Therefore, the Agency's findings under Tag F371, related to the storage of food, also apply to and will be considered in addressing the Tag F362 deficiency.
Both Tags F362 and F371 were designated as
Class I deficiencies based on the Agency's determination that as a result of the alleged violations, "immediate jeopardy was identified for all residents who ate food by mouth with the threat of the spread of food borne illness." However, on May 15, 2001, the first day of the survey, after the facility discarded the allegedly potentially hazardous food, the "immediate jeopardy" was relieved, the scope/severity was reduced to "F," and the state classification of the deficiencies was reduced from Class I to Class III.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2001).
The Agency is authorized to license nursing home facilities in the State of Florida, and pursuant to Chapter 400,
Part II, Florida Statutes, is required to evaluate nursing home facilities and assign ratings.
Subsection 400.23(7), Florida Statutes (2001), requires the Agency to "at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a licensure status to the facility." That section further provides that the Agency's evaluation must be based on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections.
Based on its findings and classifaction of deficiencies, the Agency is required to assign a licensure status to the facility. The relevant categories are defined in Section 400.23(7), Florida Statutes as follows:
A standard licensure status means that a facility has no class I or class II deficiencies and has corrected all class III deficiencies within the time established by the agency.
A conditional licensure status means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part or with rules adopted by the agency. If the facility has no class I, class II, or class III deficiencies at the time of the
follow-up survey, a standard licensure status may be assigned.
Subsection 400.23(8), Florida Statutes, (2001), provides that when minimum standards are not met, the deficiencies shall be classified according to the nature of the deficiency. That section delineates and defines the various categories of deficiencies and provides in relevant part the
following:
(8) The agency shall adopt rules to
provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature and the scope of the deficiency. The scope shall be cited as isolated, patterned, or widespread. An isolated deficiency is a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency where more than a very limited number of residents are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same resident or residents have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the facility. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents. The agency shall indicate the classification on the face of the notice of deficiencies as follows:
A class I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency,
$12,500 for a patterned deficiency, and
$15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine must be levied notwithstanding the correction of the deficiency.
A class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of
$2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency.
A class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class III deficiency is subject to a civil penalty of
$1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed.
The Agency, as the party seeking to reduce Plaza West's licensure status and impose an administrative fine, bears the burden of proof in both DOAH Case No. 01-3068 and DOAH Case No. 01-4490. See Board of Trustees of the Northwest Florida Community Hospital v. Department of Management Services,
Division of Retirement, 651 So. 2d 170, 172 (Fla. 1st DCA 1995) (Burden of proof is on the party seeking to change the status quo.).
In DOAH Case No. 01-3068 the Agency seeks to reduce Plaza West licensure status from standard to conditional and,
therefore, bears the burden of proving the allegations in the June 22, 2001, letter by a preponderance of the evidence. See
Section 120.57(1)(j), Florida Statutes (2001) ("Findings of fact shall be based upon preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, . . . ").
In DOAH No. 01-4490, the Agency seeks to impose a civil penalty or administrative fine on Plaza West, and, therefore, the Agency bears the burden of proving the allegations in the Amended Administrative Complaint by clear and convincing evidence. See Osborne Stern; 670 So. 2d at 932-33 (Fla. 1996) (The "clear and convincing evidence" standard applies when agency seeks to impose an administrative fine or civil penalty.)
Subsection 400.23(21), Florida Statutes (2001), directs the Agency to adopt and enforce rules to implement Part II, Chapter 400, Florida Statutes, and provides in relevant part the following:
[T]he agency . . . shall adopt and enforce rules to implement this part, which shall include reasonable and fair criteria in relation to:
* * *
(c) All sanitary conditions within the facility and its surroundings, including water supply, sewage disposal, food handling
and general hygiene, which will ensure the health and comfort of the residents.
Rule 59A-4.1288, Florida Administrative Code, provides in pertinent part:
Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. . . .
Therefore, for nursing home facilities certified to participate in the federal Medicare and/or Medicaid programs, the Agency classifies deficiencies with respect to the requirements of Title 42, Sections 483.10 through 483.75, C.F.R., using federal Tags to designate the nature of the particular deficiencies.
See Rule 59A-4.128(1), Florida Administrative Code.
The regulations found in 42 C.F.R. 483 and the requirements therein have been incorporated by reference into Rules 59A-4.128 and 59A-4.1288, Florida Administrative Code.
Tag F371 incorporates the requirements of 42 C.F.R.
483.35(h)(2), which provides that "[t]he facility must [s]tore, prepare, distribute, and serve food under sanitary conditions."
Tag F362 incorporates the requirements of 42 C.F.R.
483.35(b), which provides that "[t]he facility must employ sufficient support personnel competent to carry out the functions of the dietary service.
The Tag F362 deficiency is based on the same factual allegations that are the basis for the Tag F371 deficiency. Accordingly, the facts will not be dealt with separately, but will be treated together. However, in applying different standards of proof in weighing the evidence presented, the quantity and the quality of the evidence have been carefully considered in determining whether the Agency has met the differing burdens of proof.
In DOAH Case. No. 01-3068, the Agency alleges that Plaza West violated 42 C.F.R. 483.35(h)(2) by failing to store, prepare, distribute, and serve food under sanitary conditions and 42 C.F.R. 483.35(b) by the facility staff's failing to employ sufficient support staff to carry out the functions of the dietary services. For these alleged violations, the Agency cited Plaza West for Tag F371 and Tag F362 deficiencies. Both tags were designated as Class I deficiencies. Based on the two Class I deficiencies, the Agency seeks to change the licensure status of Plaza West from standard to conditional, effective May 15, 2001.
In DOAH Case No. 01-3068, the Agency failed to meet its burden. The evidence failed to establish the allegations which formed the basis for the Tag F371, Class I deficiency and, by reference, the Tag F362, Class I deficiency.
The Agency failed to prove that the foods it deemed as potentially hazardous foods were properly categorized as such, and that the potentially hazardous foods and/or leftover foods were improperly stored.
The evidence established that the Agency based its findings, relative to the storage of food, on the mistaken belief that the reach-in refrigerator was not properly functioning and cooling the foods. However, the parties stipulated that, at the time of the survey, the refrigerated units in question were functioning and at the proper temperature.
The evidence established that the cooked eggs that were stored in the reach-in refrigerator in violation of the facilities policy. However, the Agency failed to establish that the storage of cooked eggs violated any applicable state or federal regulation. Moreover, the Agency failed to establish that the leftover cooked scrambled boil in the bag eggs were served to the residents or that they would be served to them. Rather, the clear and convincing evidence established that the eggs would not be served to the residents, but would be discarded.
No evidence presented to prove that the reach-in refrigerator was improperly used to rapidly cool food.
Numerous findings were listed under Tag F371, but the clear and convincing evidence established that the Class I rating of that deficiency was based on the unproven allegations related to the storage of potentially hazardous foods and leftover foods. This is evidenced by the fact that immediately after the facility staff discarded all the foods deemed by the Agency to be potentially hazardous foods, the Agency changed both Tag F371 and Tag F362 from Class I deficiencies to Class III deficiencies.
The evidence established that the Agency's initial determination that the Tag F371 and Tag F362 should be classified as Class I violations was based on its conclusion that the alleged improper storage practices placed all residents, eating by mouth, in jeopardy and threatened residents with food borne illnesses. The evidence failed to prove this allegation.
The Agency did not prove by a preponderance of evidence that the alleged Tag F371 and Tag F362, Class I deficiencies, and findings in support thereof, caused, or were likely to cause, serious injury, harm, death to residents receiving care at Plaza West.
In DOAH Case No. 01-3048, with regard to
Tag F362, the Agency alleged that Plaza West violated 42 C.F.R. 483.35(b), which requires that "[t]he facility "employ
sufficient support personnel competent to carry out the functions of the dietary service." The Agency alleged that Plaza West violated this provision in that the facility staff failed to implement the in-service training they received. The Agency failed to prove this allegation.
Even if it is assumed that the alleged deficiencies occurred, that does not establish that facility staff failed to implement the in-service training that they received. The Agency's reliance on the factual allegations it claims as the basis for a violation of 42 C.F.R. 483.35(b), appears to be misplaced. The plain meaning of that provision is that the facility must employ adequate support staff who are capable of performing the duties of the dietary service. Without more, the mere fact that deficiencies existed at the facility is not evidence that Plaza West failed to employ adequate support personnel who were competent or capable of performing the dietary service. No evidence was presented regarding the quantity, qualifications, or competency of employees hired by Plaza West to carry out the functions of the dietary service.
More importantly, for the reasons stated above, the Agency has failed to prove the factual allegations relative to
42 C.F.R. 483.35(b) and cited as a Tag F362, Class I deficiency.
In Case No. 01-3068, the Agency failed to prove by a preponderance of evidence the cited Tag F371 and Tag F362, Class
I deficiencies. Having failed to establish that the facility had the two Class I deficiencies, those deficiencies can not be the basis of changing the licensure status of Plaza West from standard to conditional.
In DOAH Case No. 01-4490, the allegations in the two- count Amended Complaint are the same as those in
DOAH Case No. 01-3068, with the only difference being the remedy sought. In the former case, the Agency seeks to impose civil penalties pursuant to among other provisions, Subsection 400.23(8)(a), Florida Statutes. In DOAH Case No. 01-4490 the Agency has failed to meet its burden.
In Count I of the Amended Complaint, the Agency alleges that Plaza West had a Tag F371, Class I deficiency during the May 2001 survey in that it failed to maintain proper sanitation in the kitchen in violation of 42 C.F.R. 483.35(h)(2). As noted in paragraphs above, the Agency failed to prove this allegation by even a preponderance of evidence. Having failed to do so, the Agency is without authority to impose a civil penalty or administrative fine against Plaza West.
In Count II of the Amended Complaint, the Agency alleges that Plaza West had a Tag F362, Class I deficiency during the May 2001 survey, based on a violation of 42 C.F.R. 483.35(b), which requires the facility to employ sufficient
support personnel competent to carry out the functions of the dietary service. As noted above, the Agency failed to prove this allegation by even a preponderance of evidence.
Accordingly, the Agency is without authority to impose a civil penalty or administrative fine against Plaza West for the alleged Tag F362, Class I deficiency.
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 revising the May 2001 survey report to delete and/or modify the deficiencies described under Tag F371 and Tag F362 that are not supported by the record; rescinding the conditional licensure rating, effective May 15, 2001, to the extent the change in licensure status was based on Tag F362 and Tag F 371; and dismissing the Amended Administrative Complaint.
DONE AND ENTERED this 18th day of June, 2002, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
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 18th day of June, 2002.
COPIES FURNISHED:
Eileen O'Hara Garcia, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701
Karen L. Goldsmith, Esquire Goldsmith, Grout, & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011
Winter Park, Florida 32790-2011
Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, 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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 21, 2003 | Agency Final Order | |
| Jun. 18, 2002 | Recommended Order | Agency failed to prove that facility improperly stored potentially hazardous foods and leftovers. |
