STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 06-5152

)

NORTHPOINTE RETIREMENT )

COMMUNITY, INC., d/b/a ) NORTHPOINTE RETIREMENT COMMUNITY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on May 17, 2007, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, in Pensacola, Florida.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Mail Station 3

Tallahassee, Florida 32308

For Respondent: Mohamad H. Mikhchi, Administrator

Northpointe Retirement Community 5100 Northpointe Parkway

Pensacola, Florida 32514

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Agency for Health Care Administration (AHCA) filed an Administrative Complaint on September 15, 2006, seeking license revocation or in the alternative, the imposition of nine administrative fines and a survey fee alleging four Class I and five Class II deficiencies. The Administrative Complaint further alleged that Respondent failed to pay outstanding fines and survey fees. This allegation was withdrawn at hearing.

Northpointe Retirement Community, Inc. (Northpointe) requested a formal administrative hearing, and AHCA forwarded the case to the Division of Administrative Hearings on or about December 18, 2006. A hearing was scheduled for March 15, 2006, in Pensacola, Florida. A Motion for Continuance was granted and the hearing was rescheduled for May 17, 2007.

Prior to the hearing, AHCA filed a Motion in Limine which was denied.

At hearing, Petitioner presented the testimony of one witness, Norma Endress. Petitioner's Exhibits numbered 1 through 3 were admitted into evidence.1/ Respondent presented the testimony of Mohamed Mikhchi. Respondent’s Exhibits 1 through 4 were admitted into evidence.

A Transcript, consisting of one volume, was filed on June 11, 2007. Petitioner filed an Unopposed Motion for Enlargement of Time in which to file proposed recommended

orders. That request was granted. Petitioner timely filed a Proposed Recommended Order and Respondent timely filed a post- hearing submission on July 5, 2006.

FINDINGS OF FACT

1. AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes.

2. At all times material hereto, Northpointe was licensed as an assisted living facility consisting of two buildings with a total licensed capacity of 100 beds. Northpointe is located in Pensacola, Florida.

3. As the result of a complaint received by AHCA, Norma Endress, a registered nurse and agency surveyor employed by AHCA, conducted a complaint inspection of Northpointe on September 7 and 8, 2006.

4. The health assessment form is a document completed by the resident’s physician or physician’s assistant prior to or shortly after admission to the facility. During her survey visit, Ms. Endress reviewed certain residents’ health assessments, interviewed residents, and made observations.

5. All of the counts contained in the Administrative Complaint are primarily based upon the same set of facts regarding two residents, Residents 1 and 2.

   Background-Resident 1

   
   

6. Dr. Mohamad Mikhchi, administrator of Northpointe, explained the unusual circumstances surrounding the admission of Resident 1 to Northpointe. Resident 1 was flown from out-of- state to Pensacola on an ambulance jet and arrived at Respondent’s facility in the evening of August 31, 2006. Resident 1 arrived on a stretcher. Dr. Mikhchi had immediate concerns as to whether his facility was an appropriate placement for Resident 1.

7. Upon her arrival, Resident 1’s family brought in a hospital bed with full bed rails for Resident 1’s use.

   Dr. Mikhchi explained to the family that full bed rails were not permitted in assisted living facilities. Because Resident 1 kept trying to climb out of bed that first night, Dr. Mikhchi instructed staff to place Resident 1’s mattress on the floor, so that she would not fall and risk breaking a bone. Resident 1 made a screaming or yelling sound continuously that first night and was combative with staff. Resident 1 has a diagnosis of dementia.

8. The morning following her admission, staff dressed Resident 1 and took her to the dining room where she continued to make the same yelling sound. Dr. Mikhchi and staff received complaints from other residents in the dining room. Resident 1 was moved to the living room area, where she continued to make

   the same sound. Again, Dr. Mikhchi received complaints from other residents about her yelling.

9. The morning after her arrival, Resident 1’s family took her to a doctor for a health assessment. The doctor referred her to an emergency room. Late that evening, the emergency room called and informed Respondent that Resident 1 would not be admitted to the hospital, and returned Resident 1 to Northpointe around midnight. At that point, great efforts were made to find a more appropriate placement for Resident 1.

10. Because of the continuing complaints he received from other residents regarding Resident 1’s behavior, and because he was concerned with the rights of these other residents,

    Dr. Mikhchi determined that Resident 1 be kept in her room most of the time, including at mealtime, in order not to disturb and annoy other residents. He also instructed staff not to use the bed with full bed rails, and to keep Resident 1’s mattress on the floor for her safety. Resident 1 continued to be combative with staff and make the yelling sound.

11. Resident 1 stayed at Northpointe a little more than one week, until an appropriate placement was found for her. It was during that week that Ms. Endress made her complaint inspection.

    Background-Resident 2

    
    

12. Resident 2 was admitted to Northpointe in July 2006.

    
    

    Her admission papers and physician’s health assessment note that she has a vision impairment (macular degeneration) and wore a colostomy bag. Resident 2’s health assessment form indicates that Resident 2 needs “supervision w/self administration” of medication, that she needed assistance with activities of daily living (ADLs) and her colostomy bag, and that her needs could be met in an assisted living facility.

13. The staff’s role regarding the colostomy bag was limited to assisting with changing and/or emptying the bag, not cleaning the skin area called the stoma, which was done by Resident 2 while she showered. Some of Northpointe’s staff were trained to assist Resident 2 with changing and emptying her colostomy bag, and some were not.

14. Resident 2 was verbal with staff, and had a television in her room. Staff notes document that Resident 2 often refused her medication when it was offered to her by staff. At times, Resident 2 would tell staff not to change her colostomy bag when they had entered her room to do just that.

    Count I Tag A609

    
    

15. Count I of the Administrative Complaint alleges that based on record review and observation, unlicensed staff administered medications to 6 of 7 sampled residents who were

    unable to self administer medications; that unlicensed staff performed accu check blood glucose monitoring for 1 of 7 sampled residents; and administered as needed (prn) medications for 1 of

    7 sampled residents.

    
    

16. While Count I of the Administrative Complaint references six residents (1, 2, 3, 4, 6, and 7), Ms. Endress only testified about three residents (1, 2 and 6) regarding the allegations in Count I, with emphasis on Residents 1 and 2. According to Ms. Endress, the crux of this “tag” is that unlicensed staff administered medications to residents who are unable to self administer their medications.

17. Based upon her review of Resident 1’s health assessment and her observation of Resident 1, Ms. Endress determined that Resident 1 was a total care resident.

    Ms. Endress determined that Resident 1 could not tell anything to her about her medications, was unable to self-administer her medications, and that staff administered all of Resident 1’s medications.

18. On her health assessment form, Resident 1’s physician checked “yes” in answer to the question, “does the individual need help with her medications.” He also checked “yes” in answer to the question of whether this resident’s needs can be met in an assisted living facility, as opposed to a medical or nursing facility.

19. Regarding Resident 2, Ms. Endress determined that Resident 2 had a diagnosis of being blind and needed supervision taking her medications. Ms. Endress observed that Resident 2 could identify some but not all of her medications.

20. Ms. Endress determined that Resident 6 was severely demented, unable to recognize medication and/or assist with her medications, and that staff were administering all of

    Resident 6’s medications. Resident 6 was a Hospice patient at the time of the survey visit. Resident 6’s health assessment form indicates that Resident 6 needs assistance with her medications with the notation “dispense all to pt,” and that Resident 6’s needs could be met in an assisted living facility.

21. Dr. Mikhchi explained that Resident 6 lived at Northpointe for several years, and eventually was placed under Hospice care after her condition worsened.

22. Regarding the allegation that staff performed a resident’s accu-check device, Ms. Endress based that allegation solely on her interview with Resident 5. She did not base this allegation on a review of Resident 5's records or from observations.

23. According to Dr. Mikhchi, however, the staff takes the accu-check device to the resident and holds it against the resident's finger. The resident then pushes the button. Staff

    then reads and records the information from the accu-check device.

    Count II Resident Care Standards Tag A700

    
    

24. Count II of the Administrative Complaint alleges that Respondent failed to provide care and services to meet the needs of Residents 1 and 2.

25. Regarding Resident 1, Ms. Endress cited Tag A700 based upon her determination of the following: Resident 1's health assessment form indicated “total care”; Resident 1 had a foley catheter, yet Ms. Endress found no documentation referencing the catheter or about the catheter being discontinued; Resident 1 had full side rails on her bed; and Resident 1 was secluded in her room.

26. However, Resident 1's health assessment form contains the notation “total assist,” not “total care.” Resident 1’s record also includes a prescription form from Comfort Care Medical Group dated September 1, 2006, which states "DC Foley cath" followed by the notation “FYI (Baptist Home Health will be there at 5pm 9/1/06 to remove.)" Below that is the notation “Done on 9-5-06.” While there is disagreement as to whether this last notation means that the catheter was removed on September 5, 2006, or that the “9-5-06” notation means that the prescription was noted and filed on that date, there is clearly documentation regarding the catheter and Resident 1, that is,

    that a physician ordered it to be removed and that a home health agency had been contacted (apparently by the physician since it is referenced on his prescription form) to remove it.

27. Ms. Endress’ primary concern regarding Resident 2 was in regard to Resident 2’s colostomy bag. Only certain staff members were trained on how to care for a colostomy bag. As a result of her interview of Resident 2, Ms. Endress concluded that there was a lot of confusion regarding the colostomy bag, resulting in Resident 2 having to wait long periods of time for assistance with her colostomy bag, and that the colostomy bag was not being properly maintained.

28. Additionally, Ms. Endress determined that Resident 2 needed assistance with her activities of daily living and with her medications, and that her medications were not being given according to the doctor’s order.

29. Staff notes show that Resident 2 clearly and repeatedly refused medications, as well as meals, in her interaction with staff. Further, the staff notes contain repeated references to staff assisting in changing Resident 2’s colostomy bag, and repeated references to Resident 2 refusing to allow staff to change her colostomy bag when they arrived at her room to do so.

30. Ms. Endress was also concerned that Resident 2 had experienced a fall, and that her record lacked documentation that the family or a physician had been called.

31. However, the incident report states that staff heard a noise, went to Resident 2’s room and found her on the floor with a skin tear. Staff called EMS who cleaned and bandaged the skin tear. There is clear documentation that Resident 2 refused to be taken to the hospital. The incident report clearly indicates that the staff member “notified my supervisor and also her daughter of this incident.”

    Counts III and IV, Tags A718 and A724, Residents’ Rights

    
    

32. Count III of the Administrative Complaint alleges that Respondent failed to treat Resident 1 with personal dignity and respect.

33. Count IV of the Administrative Complaint alleges that Respondent physically restrained Resident 1 with side rails, a recliner, and by keeping the resident in her room.

34. At hearing, Ms. Endress explained that she cited Tag A718 because of Resident 1: “The lady was screaming and hollering, banging the rails, pinching, fighting. The staff did not know what to do with her. There were side rails up at that time. They also told me that they were told to keep her in the room because of her hollering and screaming. Pretty much that’s it. It fell under resident rights and it was restraining a

    resident and it’s for dignity and respect and it was based on seclusion.”

35. Ms. Endress cited Tag A724 because “this is pertaining to restraints. And it’s speaking to having a physician’s order for restraints. . . . Resident number 1 was . . . climbing out of bed, they put a mat on the floor for safety, put her on the floor.”

    Counts V and VI, Tags A402 and A403, Residency Criteria

    
    

36. Count V (Tag A402) alleges that Respondent admitted Residents 1 and 2 who were unable to perform activities of daily living with assistance, including assistance with colostomy care.

37. Ms. Endress cited Tag A402 because, based upon her review of the health assessment form and her observations, Ms. Endress determined that Resident 1 could not perform any ADLs without assistance. She included Resident 2 in this Tag because of the issues previously discussed regarding her colostomy care.

38. In citing Tag 403, Ms. Endress focused on Resident 1, who Ms. Endress determined could not stand up on her own, pivot, or ambulate.

39. Dr. Mikhchi insists that Resident 1 could bear weight and walk with assistance of staff. Staff assisted her to the bathroom for bathing and toileting. He acknowledges that

    Resident 1 was “borderline,” and that great efforts were made to find an appropriate placement for Resident 1 as soon as possible.

    Count VII, Tag 517, Staffing Standards

    
    

40. Count VII alleges that Respondent failed to provide minimum staff for the week of September 1 through 7, 2006. This allegation was based on Ms. Endress’ belief that the two buildings which comprise Northpointe must be counted separately. That is, when determining staff counts, she looked at each building separately, despite the fact that the license is for the total census of the two buildings combined.

41. At hearing, Ms. Endress conceded, “so clearly, if you add building two staff, you come up with more than the minimum [staff].”

    Count VIII, Tag A608, Assistance With Self-Administration

    
    

42. Count VIII alleges that Respondent failed to make available staff to assist with self-administration for medications for one of seven sampled residents and all others which may have needed assistance.

43. Ms. Endress observed Resident 1 yelling for 25 minutes. Ms. Endress reviewed Resident 1’s file and noted that it indicated Haldol for agitation, as needed, and Methodone for pain. While she was observing, no one assessed Resident 1 for agitation or pain.

44. According to Ms. Endress, an assisted living facility must have a nurse or an unlicensed staff member, e.g., a med tech, who is trained in medication. Ms. Endress determined that the staff in the room with Resident 1 had not been trained and that there was no one in the building who could assess the patient.

45. Part of Ms. Endress’ concerns rest again on her perception that staff requirements apply to each building of Respondent. “I met the med tech but she was not assigned to that building, she was not on schedule for that building, she is not assigned to that building. . . . So, to me, a facility is a building.”

46. Tarnecia Smith, a med tech, was on the schedule for that shift, but was not in the building where this incident occurred at the time of the incident. She holds a certificate for “the completion of the Assisted Living Facilities Assistance with Medication Training.”

    Count IX Tag A1105, Records

    
    

47. Count IX alleges that Respondent failed to provide CPR training for 2 of 3 sampled employees.

48. Ms. Endress cited this tag because, based upon her interview with staff present, she determined that there was no one in the building who had been trained in CPR and first aid.

49. Tarnecia Smith was on duty on the evening in question.

    
    

    She holds certificates in CPR and first aid. Both certificates show a completion date of April 15, 2006. The CPR certificate shows that it is valid for one year from the date of completion. The first aid certificate shows that it is valid for three years from the completion date. Accordingly, both certificates were valid at the time of the inspection which gave rise to this proceeding.

    Following the inspection visits

    
    

50. Dr. Mikhchi expressed frustration that there had been no exit interview with Ms. Endress following the inspection visits on September 7 and 8, 2006. During cross examination Dr. Mikhchi asked the following of Ms. Endress:

    Q At this time does it seem or do you agree, ma’am, that if we did have an exit interview, we would have cleared these out at the beginning?

    
    

    A True. And I was directed not to do an exit interview.

    
    

    Q I understand that.

    
    

    A And at that time, I was not complete, finished with my investigation, at that point. But you should have gotten an exit interview some time thereafter when it was completed.

    
    

    Q But when we would have the exit interview, do you believe the questions about this or the hours of—

    A Yes. We usually talk about these things, yes, and you show me things.

    
    

    Q For twenty years we’ve done that? A Yes.

    Q At this time we didn’t? A I agree.

51. There is no dispute that during a follow-up visit to Respondent in November 2006, all tags were cleared by AHCA.

    CONCLUSIONS OF LAW

    
    

52. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569 and 120.57, Fla. Stat.

    
    

53. The burden of proof in this proceeding is on the agency. Because of the proposed penalties in the Administrative Complaint, 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).

54. 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. Section 429.19, Florida Statutes, reads in pertinent part as follows:

    429.19 Violations; administrative fines.--

    
    

    1. 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:

       
       

       1. 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 violations shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. The agency shall impose an administrative fine for a cited class I violation 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.

          
          

       2. 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. The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5,000 for each violation. A fine shall be levied notwithstanding the correction of the violation.

          
          

          * * *

    2. In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors:

       
       

       1. 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.

          
          

       2. Actions taken by the owner or administrator to correct violations.

          
          

       3. Any previous violations.

          
          

       4. The financial benefit to the facility of committing or continuing the violation.

          
          

       5. The licensed capacity of the facility. (emphasis supplied)

55. Section 429.275(2), Florida Statutes, reads as follows:

    (2) The administrator or owner of a facility shall maintain personnel records for each staff member which contain, at a minimum, documentation of background screening, if applicable, documentation of compliance with all training requirements of this part or applicable rule, and a copy of all licenses or certification held by each staff who performs services for which licensure or certification is required under this part or rule.

    
    

56. Section 429.28(1) Florida Statutes, reads as follows:

    Resident Bill of Rights.-

    
    

    1. 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. . . .

       
       

57. Florida Administrative Code Rule 58A-5.0181 reads in pertinent part:

    Residency Criteria and Admission Procedures

    
    

    1. ADMISSION CRITERIA. An individual must meet the following minimum criteria in order to be admitted to a facility holding a standard, limited nursing or limited mental health license:

       
       

       * * *

       
       

       1. Be able to perform the activities of daily living, with supervision or assistance if necessary.

          
          

       2. Be able to transfer, with assistance if necessary. The assistance of more than one person is permitted.

       
       

58. Florida Administrative Code Rule 58A-5.0182 reads in pertinent part:

    Resident Care Standards

    
    

    An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility.

    
    

    1. SUPERVISION. Facilities shall offer personal supervision, as appropriate for each resident, including the following:

       
       

       * * *

       1. Contacting the resident’s health care provider and other appropriate party such as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or moves out.

          
          

       2. A written record, updated as needed, of any significant changes. . . any illnesses which resulted in medical attention, major incidents, changes in the method of medication administration, or other changes which resulted in the provision of additional services.

       
       

       * * *

       
       

       (4) ACTIVITIES OF DAILY LIVING. Facilities shall offer supervision of or assistance with activities of daily living as needed by each resident. Residents shall be encouraged to be as independent as possible in performing ADLs.

       
       

       * * *

       
       

       (6) RESIDENT RIGHTS AND FACILITY PROCEDURES.

       
       

       (h) Pursuant to Section 429.41, F.S., the use of physical restraints shall be limited to half-bed rails, and only upon the written order of the resident’s physician who shall review the order biannually, and the consent of the resident or the resident’s representative. Any device, including half- bed rails, which the resident chooses to use and can remove or avoid without assistance shall not be considered a physical restraint.

       
       

59. Florida Administrative Code Rule 58A-5.0185 reads in pertinent part as follows:

    58A-5.0185 Medication Practices

    
    

    1. ASSISTANCE WITH SELF-ADMINISTRATION.

       
       

       (a) For facilities which provide assistance with self-administered medication, either: a nurse; or an unlicensed staff member, who is at least 18 years old, trained to assist with self-administered medication in accordance with Rule 58A-5.0191, F.A.C., and able to demonstrate to the administrator the ability to accurately read and interpret a prescription label, must be available to assist residents with self-administered medications in accordance with procedures described in Section 429.256, F.S.

       
       

       * * *

       
       

       (c) Staff shall observe the resident take the medication. Any concerns about the resident’s reaction to the medication shall be reported to the resident’s health care provider and documented in the resident’s record.

       
       

60. Florida Administrative Code Rule 58A-5.019 reads in pertinent part:

    1. STAFFING STANDARDS.

       1. Minimum staffing:

    1. Facilities shall maintain the following minimum staff hours per week:

    
    

    Number	of	Residents	Staff Hours/ Week
    0-5			168
    6-15			212
    16-25			253
    26-35			294
    36-45			335
    46-55			375
    56-65			416
    66-75			457
    76-85			498
    86-95			539

    For every 20 residents over 95 add

    42 staff hours per week.

    
    

61. Florida Administrative Code Rule 58A-5.024 reads in pertinent part:

    Records.

    
    

    (2) STAFF RECORDS.

    
    

    (a) Personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis. In addition as applicable:

    
    

    1. Documentation of compliance with all staff training required by Rule 58A-5.0191, F.A.C.;

       
       

    2. Copies of all licenses or certification for all staff providing services which require licensing or certification;

       
       

    3. Documentation of compliance with level 1 background screening for all staff subject to screening requirements. . .

       
       

    4. For facilities with a licensed capacity of 17 or more residents, a copy of the job description given to each staff member pursuant to Rule 58A-5.019, F.A.C.

    
    

62. The Administrative Complaint in Count I seeks to impose a $5,000.00 administrative fine alleging that

    unlicensed staff administered medications to residents who were unable to self administer medications, and that unlicensed staff performed accu-check glucose monitoring for one resident and administered as needed medications to one resident. The

    authority cited in Count I is Florida Administrative Code Rule 58A-5.0185(3)(c). Count I alleges that this is a Class I deficiency, yet AHCA’s Statement of Deficiencies gave a correction date of October 13, 2006.

63. Count I cites as authority Florida Administrative Code Rule 58A-5.0185(3)(c), which is inapplicable to allegations concerning unlicensed staff. Since the Administrative Complaint governs the scope of the proceeding, AHCA has failed to prove that Respondent violated the above-quoted rule provision which Respondent was charged with violating. See Travisani v.

    Department of Health, 908 So. 2d, 1108 (Fla. 1 DCA 2005), and Ghani v. Department of Health, 714 SO. 2d 1113 (Fla. 1 DCA 1998).2/

64. Count II of the Administrative Complaint seeks to impose a $5,000 fine for failure to provide care and services appropriate to the needs of residents accepted for admission to the facility in violation of Florida Administrative Code Rule 58A-5.0182(1)(d) and (e),(4), and (6)(h). Count II alleges that this is a Class I deficiency, with a correction date of “immediate.”

65. AHCA did not prove a violation of Florida Administrative Code Rule 58A-5.0182(1)(d) or (e). Regarding Resident 1, documentation did exist of her foley catheter, as well as for Resident 2’s fall and resulting call to EMS.

66. Respondent offered supervision of or assistance with ADL’s for the residents. Therefore, AHCA did not prove that a violation of Florida Administrative Code Rule 58A-5.018(4) occurred. As for the allegation that Rule 58A-5.0182(6)(h) was violated, that will be addressed under Count IV.

67. Count III of the Administrative Complaint seeks to impose a $5,000.00 fine for violating a resident’s bill of rights in violation of Rule Section 429.28(1), Florida Statutes. Count III alleges that this is a Class I deficiency, with a correction date of “immediate.”

68. While Count III cites statutory language prohibiting the deprivation of certain rights, the Administrative Complaint does not identify any specific law or constitutional right that was allegedly violated. This allegation is simply too vague. No evidence was presented that Resident 1’s legal or constitutional rights were violated. Therefore, AHCA did not prove that Section 429.28(1), Florida Statutes, was violated.

69. Count IV of the Administrative Complaint seeks to impose an administrative fine of $5,000 for violating a resident’s rights and facility procedures in violation of Florida Administrative Code 58A-5.0182(6)(h). Count IV alleges that this is a Class I deficiency, with a correction date of “immediate.”

70. Resident I had a bed with full bed rails, which is a violation of Florida Administrative Code Rule 58A-5.0182(6)(h). While Dr. Mikhchi instructed staff to place Resident 1’s mattress on the floor for her safety, Ms. Endress observed Resident 1 in the bed with the full bed rails up.

71. Count V of the Administrative Complaint seeks to impose a fine of $1,000 alleging that Respondent admitted two residents who are unable to perform activities of daily living with assistance in violation of Florida Administrative Code Rule 58A-5.0181(1)(c). Count V characterizes this as a Class II violation, with a correction date of October 8, 2006.

72. Regarding Resident 1, the evidence established that her needs were beyond those appropriate for an assisted living facility. Therefore, AHCA proved a violation of Florida Administrative Code Rule 58A-5.0181(c) regarding Resident 1. AHCA did not clearly and convincingly establish that Resident 2 could not perform ADLs with assistance. To the contrary, the evidence established that Resident 2 could perform ADLs with assistance.

73. Count VI of the Administrative Complaint seeks to impose a fine of $1,000 alleging that Respondent admitted one resident who was unable to transfer with assistance in violation of Florida Administrative Code 58A-5.0181(1)(d).

    Count VI characterizes this as a Class II violation, with a correction date of October 8, 2006.

74. Resident 1 could get out of bed and walk to the bathroom with the assistance of staff. Therefore, AHCA did not prove a violation of 58A-5.0181(1)(d).

75. Count VII of the Administrative Complaint seeks to impose a fine of $1,000, alleging that Respondent failed to provide minimum staff for one week in violation of Florida Administrative Code Rule 58A-5.0181(4)(a). Count VII characterizes this violation as a Class II violation, with a correction date of October 8, 2006.

76. The allegations in Count VII are based on the erroneous understanding of Ms. Endress that each building was to be treated separately for purposes of calculating staff on duty. This issue was addressed in an earlier case involving the same parties, Agency for Health Care Administration v. Northpointe Retirement Community, DOAH Case No. 99-1697 (RO issued February 10, 2000, Final Order issued March 15, 2000.) Separate buildings located on the same grounds are licensed as a single assisted living facility. The cited rule clearly requires that “a facility shall maintain” certain minimum staff hours per week. Ms Endress acknowledged that if both buildings are counted, that “you come up with the minimum

    [staff.]” Accordingly, AHCA did not prove that a violation of Rule 58A-5.0181(4)(a) occurred.

77. Count VIII of the Administrative Complaint seeks to impose a fine of $1,000, alleging that Respondent failed to make available staff to assist with self-administration of medications for residents in violation of Florida Administrative Code Rule 58A-5.0185(3)(a). Count VIII characterizes this as a Class II violation, with a correction date of October 8, 2006.

78. Again, this issue was squarely addressed in Agency for

    
    

    Health Care Administration v. Northpointe Retirement Community, Case No. 99-1697, supra. Because a med tech who had received medication training was on duty in the facility at the time of the survey visit, AHCA did not prove that a violation occurred.

79. At hearing and in its Proposed Recommended Order, AHCA cited Section 464.003(3), Florida Statutes, which defines the practice of professional nursing. AHCA asserts that if a resident cannot self-administer medication, only a nurse can give that resident the medication. However, the Administrative Complaint does not cite this statute and, therefore, does not put Respondent on notice of same. See Trevisani, supra.

80. Count IX of the Administrative Complaint seeks to impose a fine of $1,000, alleging that Respondent failed to provide CPR training for two employees in violation of Section

    429.275(2), Florida Statutes, and Florida Administrative Code Rule 58A-5.024.

81. Since a staff member on duty in the facility had these certifications and they were in the possession of Respondent, AHCA did not prove that a violation of Section 429.275(2), Florida Statutes, or Florida Administrative Code Rule 58A-5.024, occurred.

    Penalties

    
    

82. AHCA filed the Administrative Complaint one week following the survey inspection by Ms. Endress, before a corrective action plan was submitted and well before it could be known whether or not Respondent corrected the violation. In doing so, AHCA apparently relied on the language of Section 429.19(2)(a), Florida Statutes, which states that a fine may be levied notwithstanding the correction of the violation, and of 429.19(2)(b), which states that a fine shall be levied notwithstanding the correction of the violation.

83. However, this reading ignores the language in Section 429.19(3), Florida Statutes, which directs AHCA to consider several factors, including actions taken by the owner or administrator to correct violations. Since the language of 429.19(2)(a), regarding Class I violations is permissive (a fine may be levied notwithstanding the correction), the language of subsection (3) cannot be ignored.

84. Regarding the Class I violation from Count IV, that full bed rails were used, several significant mitigating factors exist. The bed with the full bed rails was provided by Resident 1’s family; Dr. Mikhchi informed the family that the bed was not permitted; Dr. Mikhchi took measures to prevent a fall from Resident potentially climbing out of the bed (i.e., placing the mattress on the floor to prevent injuries resulting from a fall); making every attempt to find a more appropriate placement for Resident 1; and finally, that Resident 1 only lived in Respondent’s facility for approximately one week. Certainly, the actions taken by Dr. Mikhchi to correct the violation impacted the probability of serious physical harm; and, since Resident 1 moved out almost immediately after the survey inspection visit, eliminated potential harm. Accordingly, no fine should be imposed for this violation.

85. The Class II violation from Count V, that the needs of Resident 1 were beyond those that could be addressed in an assisted living facility, is governed by Section 429.19(2)(b), Florida Statutes. This statutory language is mandatory(“shall be levied notwithstanding the correction of the violation”), requiring that a fine of no less than $1,000 be imposed notwithstanding the correction of the violation. Accordingly, the $1000 fine suggested by AHCA is appropriate here, regardless of the existence of mitigating factors.

86. In light of the disposition of Counts IV and V of the Administrative Complaint, the $500 survey fee sought by AHCA to be imposed pursuant to Section 429.19(10), Florida Statutes, is appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Agency for Health Care Administration enter a final order assessing an administrative fine of $1,000 and a survey fee of $500 against Respondent, Northpointe Retirement Community.

DONE AND ENTERED this 24th day of August, 2007, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 24th day of August, 2007.

ENDNOTES

1/ At hearing, counsel for Petitioner was instructed to make copies of the two depositions which comprise Petitioner’s Exhibits 2 and 3, and to mail them to Dr. Mikhchi promptly. As of the date that proposed orders were submitted, Respondent had not yet received those copies. Accordingly, the contents of the depositions that comprise Exhibits 2 and 3 have not been considered.

2/ This inconsistency, coupled with a correction date of six weeks following the issuance of the statement of deficiencies indicates that the wrong tag may have been cited, as well as the wrong class of violation. In any event, a violation of the rule cited in the Administrative Complaint was not proven.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Mail Station 3

Tallahassee, Florida 32308

Mohamad H. Mikhchi, Administrator Northpointe Retirement Community 5100 Northpointe Parkway

Pensacola, Florida 32501

Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

Craig H. Smith, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

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: 06-005152

Orders for Case No: 06-005152