STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CRISTAL PALACE RESORT PB, LLC,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
/ AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
CRISTAL PALACE RESORT PB, LLC,
Respondent.
/
Case No. 19-1667
Case No. 19-2327
RECOMMENDED ORDER
Administrative Law Judge John D. C. Newton, II, of the Division of Administrative Hearings (DOAH), conducted the final hearing in this matter in Titusville, Florida, on July 23 through 25, 2019, and September 11 and 12, 2019.
APPEARANCES
For Crystal Palace Resort PB, LLC: John E. Terrel, Esquire
John E. Terrel, P.A.
1700 North Monroe Street, Suite 11-116
Tallahassee, Florida 32303
For Agency for Health Care Administration:
Nicola Brown, Esquire Thomas J. Walsh, II, Esquire
Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330H St. Petersburg, Florida 33701
STATEMENT OF THE ISSUES1
Did Cristal commit deficient practices as cited in the Notice of Intent to Deny for Renewal Application justifying denial of its application for license renewal?
May the Agency impose administrative fines and assess survey fees against Cristal for violations alleged in the Administrative Complaint that are proven?
If so, what amount should the fines and fees be?
PRELIMINARY STATEMENT
The Agency for Health Care Administration (Agency) is the state agency charged with licensing and regulating Assisted Living Facilities (ALFs). It is the Respondent in Case No. 19-1667 and the Petitioner in Case No. 19-2327. Cristal Palace Resort PB, LLC (Cristal), is a licensed ALF. Cristal is the Petitioner in Case No. 19-1667 and the Respondent in Case No. 19-2327.
This is the second chapter in a dispute over Cristal's ALF license. The Recommended Order in Agency for Health Care Administration v. Cristal Palace Resort PB, LLC, DOAH Case No. 17-2149 (Fla. DOAH June 29, 2018) modified in part, Case No. 2017004532 (Fla. AHCA August 15, 2018), chronicles the first (Cristal I). That dispute involved an administrative complaint filed against Cristal on September 30, 2016; a second administrative complaint filed January 20, 2017; and a
1 Although the Agency states that the issues include whether it may revoke Cristal's license, the Administrative Complaint did not pray for that relief. In addition, revocation is a moot issue. The license has expired making renewal the dispositive licensing issue.
Notice of Intent to Deny Renewal issued June 5, 2017, and subsequently amended. The Final Order vacated the Agency's Second Amended Notice of Intent to Deny and directed the Agency to complete a renewal inspection. The Final Order also imposed
$3,000 in administrative fines and a $500 survey fee for the charges of the administrative complaints that the Agency proved. The Cristal I Final Order also mandated that "the Agency will proceed with the completion of its review of Cristal Palace's licensure renewal application by conducting a renewal inspection of Cristal Palace's facility in accordance with sections 408.806 and 408.811, Florida Statutes, before making a final determination on Cristal Palace's licensure renewal application."
On February 12, 2019, the Agency issued its Notice of Intent to Deny for Renewal Application (Notice to Deny) referring to "Complaint Number 20190005481881." This document alleged 56 violations of statutes and rules. The Notice to Deny did not seek to impose fines. Cristal disputed this decision and requested a formal administrative hearing. On March 28, 2019, the Agency referred the Notice to Deny dispute to DOAH to conduct the final hearing (Case No. 19-1667). The hearing was set to begin June 4, 2019.
On March 24, 2019, the Agency issued a 27 count Administrative Complaint against Cristal alleging violations of statutes and rules. The Complaint sought to impose fines totaling $41,000 and assess survey fees of $1,000.
Cristal disputed the charges of the Administrative Complaint and requested a hearing. On May 2, 2019, the Agency referred the Administrative Complaint dispute to DOAH for conduct of a final hearing (Case No. 19-2327).
The Notice to Deny and the Complaint overlap substantially. An Order rendered May 15, 2019, granted the parties' joint motion to consolidate the two cases and
continue the hearing. The Order rescheduled the hearing to begin July 23, 2019. The undersigned conducted the hearing as scheduled.
The Agency presented testimony from Mark Amaral, Linda Guliann-Andrews, Vanessia C. Bulger, Lorienda Crawford (by deposition), Lorraine Henry,
Vilma Pellot, Heather Sabat, Benjamin Stanley, and Robin Williams. Agency exhibits 5, 8, 26 through 28, 30, 36 through 38, 40 through 42, 65, 69, 71, 76A, 77, 78, 82
through 84, 102, 104, 108 through 110, 112, 114 through 116, 123 (1st 8 photos and 13th photo), and 124 through 154 were admitted into evidence.
Cristal presented testimony from Nuri Dorra, Bethany Harrell,
Dramisha Jackson, Nathan Marcotte, and Lina Portorreal. Cristal Exhibits 1, 3 through 8, 9 (pp. 44 through 46, 510, 511, 514, 515, 532, 533, 540, and 541), 10, 11, 13
through 15, 18, 22, 23, 25, 26 (a, b, d, i, l, m, & o), 27, 28 (ending at p. 43), 29 through
31, and 40 through 42 were admitted into evidence.
At the conclusion of the hearing, the parties requested and were granted 30 days to file proposed recommended orders. Also, at the parties' request, the page limit for the proposed recommended orders was increased to 60. A Post-Hearing Order memorialized those rulings, established a process for presenting objections made during depositions, established a format for proposed recommended orders, and directed Cristal to identify charges that it maintains were resolved by the Cristal I Final Order in Case No. 17-2149.
The five-volume Transcript was filed October 4, 2019. The parties timely filed Proposed Recommended Orders. They have been considered in the preparation of this Recommended Order.
This matter involves the results of surveys conducted May 2017 through January 2019. The Agency conducted initial complaint, licensure, and follow-up surveys. This
Order addresses the alleged deficient practices that the Agency identifies by "tags" and corresponding counts of the Complaint in chronological order of the surveys.
The presentation of this matter created some difficulties. The Notice to Deny does not identify the statutes and rules allegedly violated other than to state: "The violations identified in the Agency surveys constitute a violation of the Health Care Licensing Procedures Act found in Chapter 429, Part I, Florida Statutes." Some, but not all, of the violations are included in the Administrative Complaint.
The Agency's Proposed Recommended Order (PRO) identifies alleged violations by tag number and Complaint count. It also identifies the rules and statutes allegedly violated. This is the most recent and complete statement of the Agency's claims. Any violation not included in the Proposed Recommended Order is deemed abandoned, as are violations asserted without citation to record support for them. Cf. D.H. v. Adept Cmty. Servs., 271 So. 3d 870 (Fla. 2018) (Claims of error not raised in initial brief deemed abandoned); Wickham v. State, 124 So. 3d 841, 860 (Fla. 2013) (Failure to pursue a claim amounts to abandonment of the claim.); Downs v. Moore, 801 So. 2d 906, 912 f 9 (Fla. 2001) (Failure to propose jury instruction on an issue is deemed abandonment of the issue).
In some instances, Cristal's Proposed Recommended Order is unclear about which tag or count its proposed findings address. As with the Agency's evidence, much of Cristal's evidence is hearsay or relies upon documents for which there is insufficient evidence about their creation to make them credible or persuasive.2 The testimony
2 This excerpt from Cristal's administrator describing how trainings he gave employees cured any complaints about training deficiencies is a good example.
Q: Do you know whether the general questions could have covered other issues other than what you've listed here?
A: Absolutely, absolutely.
Q: Did you believe that the facility inservice that you did for this addressed the concerns that AHCA had for the September 10th to 12th, 2018, survey? (continued on page 6)
appearing at pages 673 and 750 of Transcript Volume IV and pages 810 and 817 of Transcript Volume V are examples. As with the Agency's PRO, defenses or proposed findings of fact not specifically identified by supporting evidence and correlated to a charged violation, are deemed abandoned. Cristal's evidence was often vague about when an action had been taken or a document obtained or created. It was also often vague about who took an action.
FINDINGS OF FACT
Agency for Health Care Administration
The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of the statutes governing ALFs, codified in chapter 429, part I, and 408, part II, Florida Statutes, as well as the related rules in Florida Administrative Code chapters 58A-5 and 59A-35.3
The Agency conducts biennial inspections (commonly referred to as surveys) of ALFs to determine compliance with the regulatory requirements. § 408.811(1)(b), Fla. Stat. The Agency may also perform surveys to investigate complaints.
Regardless of the catalyst for a survey, Agency surveyors document any non- compliance found in a Statement of Deficiencies upon completing the survey. Deficiencies are cited by a “tag” that describes the deficiency and is supposed to establish a correction period. The tag is a numeric or alpha-numeric identifier of the regulatory standard found deficient. "A deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency." § 408.811(4), Fla. Stat.
A: I do believe that, yes. (Tr. Vol. IV, p. 273).
3 Unless otherwise noted, citations to Florida Statutes are to the 2018 codification, and citations to rules in Florida Administrative Code are to the 2018 versions. The rules were recently transferred to other chapters. There are no material differences between the 2017 and 2018 versions of the statutes and rules.
Deficiencies must be categorized as Class I, Class II, Class III, Class IV, or unclassified deficiencies. § 408.813(2), Fla. Stat. In general, the class correlates to the nature and gravity of the deficiency.
Class I violations present an imminent danger to residents. Providers must abate or eliminate Class I violations within 24 hours unless the Agency sets a different period. The law requires the Agency to impose a fine for Class I violations, even if they are corrected. § 408.813(2)(a), Fla. Stat.
Class II violations directly threaten the health, safety, or security of residents. The Agency must levy a fine for a Class II violation even if it is corrected.
§ 408.813(2)(b), Fla. Stat.
Class III violations indirectly or potentially pose a threat to the health, safety, or security of residents. An Agency citation for a Class III violation must specify the time within which the violation must be corrected. If a provider timely corrects a Class III violation, the Agency may not impose a fine. § 408.813(2)(c), Fla. Stat.
Class IV violations do not threaten the health, safety, or security of residents. An Agency citation for a Class IV violation must specify the time within which the violation must be corrected.
If a provider timely corrects a Class IV violation, the Agency may not impose a fine. § 408.813(2)(d), Fla. Stat.
Cristal Palace Resort PB, LLC
Cristal was, at all material times, an ALF in Palm Bay, Florida, operating under the Agency's licensing authority. Cristal's license authorized it to operate a 252-bed facility. Cristal was required to comply with all applicable statutes and rules.
The Agency first licensed Cristal, located in a former hotel, to operate as a 252-bed ALF in May 2015. Cristal's license authorizes extended congregate care services, a higher level of services than under a standard ALF license.
ALF licenses are valid for two years. Cristal applied to renew its ALF license with the extended congregate care specialty licensure.
Nuri Dorra owns Cristal Palace. In his home country, Mr. Dorra is an architect. During a few periods of time, he served as Cristal Palace's administrator. Mr. Dorra has completed the training required to serve in that position.
During the time period relevant to this matter, Cristal's census ranged from the mid-forties to the high fifties.
Observations on Surveys, Notices of Deficiency, and Hearsay4
This dispute involves charges arising from four surveys conducted by the Agency. Referred to by the last day of the survey period, they are the May 10, 2017, survey; the July 13, 2017, survey; the September 14, 2018, survey; and the December 5, 2018, survey. Several surveyors participated in each survey. The surveyors created 30 documents referred to as Statements of Deficiency or surveyors' notes. (Agency Exs. 124 through154). All of them have two or more Agency employee names on them. The persuasive evidence does not prove who authored which part of most of the documents. Some witnesses testified about specific documents and
statements in the documents. But in many cases they did not testify about or identify the specific portions of the documents that they authored.
All of the surveyor notes and Statements of Deficiencies are hearsay accounts of what people told surveyors, descriptions of documents that surveyors read, and conditions surveyors observed. Often, the statements in the documents and in the testimony are vague and lacking detail about the circumstances in which the surveyor gathered the information. This undermines credibility and persuasiveness. The undersigned reminded the parties during the hearing of section 120.57(1)(c) and its prohibition against basing findings of fact solely upon hearsay unless it would be admissible over objection in civil actions. (Tr. Vol. I, p 24; v. II, p. 404; vol. IV, p. 661).
Hearsay evidence is admissible to supplement or to explain other evidence. It is not sufficient alone to support a finding of fact, unless it would be admissible over objection in a civil action. Wark v. Home Shopping Club, 715 So. 2d 323, 324 (Fla. 2d
4 This part of the Conclusions of Law is placed here to illuminate the reasoning leading to many of the factual findings that follow. Much of Cristal's evidence suffers from the same hearsay issues.
DCA 1998); See also Bellsouth Advert. & Publ'g Corp. v. Unemployment Appeals Comm'n, 654 So. 2d 292 (Fla. 5th DCA 1995).
Out-of-court statements of testifying witnesses remain hearsay.
Most hearsay issues involve an out-of-court statement that was made by one person and subsequently related in court during the testimony of another person. However, an extrajudicial statement made by the same person who is testifying also falls within the definition of hearsay. See Kenneth S. Broun, McCormick on Evidence § 251 (6th ed. 2006). The fact that the opposing party has an opportunity to cross-examine the witness about the prior statement does not remove the statement from the classification of hearsay.
Powell v. State, 99 So. 3d 570, 573 (Fla. 1st DCA 2012).
The only hearsay exception that might apply to the survey notes and Statements of Deficiencies is the public records exception of section 90.803(8), Florida Statutes. Proving that this exception applies requires establishing a predicate. That includes proving the documents set forth matters observed pursuant to duty imposed by law as to which matters there was a duty to report. For the most part, the survey notes are the joint work product of several surveyors. For most of the notes there is no persuasive evidence proving who authored which part of the documents. Many of the documents also recount and rely upon statements made by either residents or staff of Cristal. A hearsay statement that includes another hearsay statement is admissible only when both statements conform to the requirements of a hearsay exception. Juste v. Dep't of Health & Rehab. Servs., 520 So. 2d 69 (Fla. 1st DCA 1988); Harris v. Game & Fresh Water Fish Comm'n., 495 So. 2d 806 (Fla. 1st DCA 1986).
The public records exception does not include factual findings of an investigation. Lee v. Dep't of Health & Rehabilitative Servs., Fla. 698 So. 2d 1194, 1200 (Fla. 1997). In the facts of this case, the AHCA surveyors were conducting an investigation after the first effort to revoke or deny Cristal's license failed. This was no routine re-licensure exercise. The surveys were inextricably bound up with a
complaint investigation. For this reason too, the survey notes and deficiency findings do not satisfy the hearsay exception. Also, the predicate for admission under the exception requires proof of who prepared the record and that the person who prepared it personally observed the events described. Kimbrough v. State, 852 So. 2d 335, 336 (Fla. 5th DCA 2003). For many of the surveys and statements of deficiency, due to the documents having multiple authors, the Agency did not establish the required predicate. For these reasons, no findings of fact are based solely upon matters described in the surveyor notes or statements of deficiencies. See Carter v.
State, 951 So. 2d 939, 943 (Fla. 4th DCA 2007); Reichenberg v. Davis, 846 So. 2d 1233 (Fla. 5th DCA 2003); Scott v. Dep't of Prof'l Reg., 603 So. 2d 519 (Fla. 1st DCA 1992).
Investigative reports, including the Statements of Deficiency and survey notes here, present another evidential problem. Much of the information recited in them is gathered from other sources, not the personal observations of the author. They also often include or depend upon hearsay. Rivera v. Bd. of Trs. of Tampa's Gen. Emp't Ret. Fund, 189 So. 3d 207, 213 (Fla. 2d DCA 2016).
Application of the hearsay rule is no mere legal technicality. The hearsay rule is one of the oldest and most effective means of ensuring decisions that determine people's lives and fortunes are based on reliable information. The Fifth District Court of Appeal described the importance of the rule as follows:
Rules governing the admissibility of hearsay may cause inconvenience and complication in the presentment of evidence but the essence of the hearsay rule is the requirement that testimonial assertions shall be subjected to the test of cross examination. 5 Wigmore on Evidence,
§ 1362 (Chadbourne Rev. 1974). As stated by Professor Wigmore, the hearsay rule is "that most characteristic rule of the Anglo-American law of evidence -- a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world's methods of procedure." 5 Wigmore on Evidence, at § 1364.
Dollar v. State, 685 So. 2d 901, 903 (Fla. 5th DCA 1996).
Survey Ending May 10, 2017
Tag 8 – Residents 9 and 14 – Alleged violations of rule 58A-5.0181(2) and section 429.26(4)-(6): The rule establishes admission criteria for an ALF. Facilities document compliance with the criteria by obtaining and maintaining an accurate and complete report of a health assessment of the resident from a licensed health care provider completed within 60 days before admission or within 30 days of admission. This ensures that residents meet specific admission criteria.
The health assessment form for Resident 14 did not document the type of assistance the resident required for bathing. The form did not indicate whether the resident had a communicable disease. The form indicated that the resident required 24-hour nursing or psychiatric care. Rule 5A-5.0181(2) provides that residents requiring 24-hour licensed professional mental health treatment do not qualify for admission to an ALF. The form is dated February 2, 2017, more than 60 days before the survey. For this resident, Cristal violated the rule.
Section 429.26(4) through (6) imposes similar requirements. The Agency also proved that Cristal violated the statute. The deficient health assessment document for Resident 14 posed an indirect or potential risk to this resident. It is properly classified as a Class III violation.
Agency proposed finding of fact 10 said nothing about Resident 9's health assessment form. This charge is deemed abandoned.
Tag 53 – Resident 10 – Alleged violation of rule 58A-5.0185(4)(d): The rule requires that a facility performing clinical laboratory tests for residents, including blood glucose testing, must comply with the federal Clinical Laboratory Improvement Amendments of 1988 (CLIA) and chapter 483, Part I, Florida Statutes. The rule further requires the facility to maintain its federal CLIA certificate at the facility. The requirements do not apply if a third party is assisting the resident perform the test.
Agency surveyor Robin Williams observed a nurse, Coralie Prince, contracted to serve residents at Cristal, assisting Resident 10 with testing the resident's blood glucose using an Accu-Chek machine. The Agency depends upon hearsay to prove
Cristal did not have a CLIA certificate. The Agency did not prove a violation of rule 58A-5.0185(4)(d) by a preponderance of the evidence.
Tag 54 – Resident 9 – Alleged violation of rule 58A-5.0185(5): The Agency's PRO, in finding of fact 12, states that Tag 54 asserts a violation of the health assessment rule. It does not. The Tag 54 violations described in the Notice to Deny involve allegations of failure to maintain medication observation records (MORs). Also, rule 5.0185(5), cited in Agency proposed finding of fact 12 governs medication records. The Agency has not identified record evidence to support the tag.
Tag 55 – Resident 8 – Alleged violation of rule 58A-5.0185(6): Agency proposed finding of fact 13 asserts this tag charges a violation of the rule's requirement that residents who possess their medications must keep them in a secure place out of sight of other residents. Tag 55 does not. It charges failure to properly handle discontinued medications. The Agency did not identify evidence proving a violation of rule 58A-5.0185(6).
Tag 56 – Resident 10 – Alleged violation of rule 58A-5.0185(7): The rule requires that all centrally stored medications that are separated from their original packaging be labeled with the resident's name and the drug's identifying information. Cristal's medication cart contained three separate sets of medication pens containing insulin. None were labeled with a resident's name or drug identity.
The labeling requirement is important. Without the label the residents are at risk for receiving the wrong medication. This violation presented an indirect or potential risk to residents. The Agency properly classified it as a Class III violation.
Tag 93 – Alleged violation of rule 58A-5.020(2): The rule establishes food service standards. Rule 58A-5.020(2) requires facilities to date and plan menus at least one week in advance, and post them conspicuously or otherwise make them easily available to residents. The facility may substitute items of comparable nutritional value for menu items. Facilities must keep the menus, with substitutions noted, on file for six months. During the survey period Cristal had a menu posted. But it was not dated. Cristal maintained undated menus it called "rolling menus," labeled Week 1, Week 2, Week 3, and Week 4. These are no substitute for dated
menus. Unless the first date that the Week 1 menu was served is known and unless there was never a deviation from the sequence, you could not know what food was offered on any date. The rolling menu explanation, also, does not fit the calendar because not all months have four weeks or begin on the same day.
The menu for the noon meal served on May 8, 2017, included a tossed salad. Cristal did not offer residents a tossed salad at that meal.
The Agency proved the violation. Findings of Fact 168, 169, and 181 in Cristal I also found Cristal violated this rule. Cristal's violation of the rule was an indirect or potential risk to residents properly classified as a Class III offense.
Tag 152 – Physical Plant/Safe Living Environment – Alleged violation of rule 58A-5.023(3): among other things the rule requires a facility to provide "a safe living environment pursuant to section 429.28(1)(a), Florida Statutes." Section 429.28(1)(a) says that residents have a right to "[l]ive in a safe and decent living environment, free from abuse and neglect." During the survey period, some facility carpeting was stained and dirty. Decorative borders on walls were scuffed. Some were missing. A witness testified that one posted elevator permit was expired. The expiration date is unknown. The Agency offered no documents or photographs to show the permit was expired. The outdoor pool contained an unidentified dark black liquid. The pool enclosure displayed a sign stating that the pool was closed for maintenance. The indoor pool, which was not closed off, had unidentified white, bubbly particles floating on top. At least one kitchen air conditioning unit was not working during the days of survey. As kitchens usually are, the kitchen was hot. The Agency witness testified the sweating kitchen staff were a food contamination risk. The Agency did not offer evidence to support that assertion. Health inspectors regularly inspected the kitchen and found it satisfactory.
The preponderance of the evidence did not prove what caused the carpet stains or how long they had been there. The preponderance of the evidence did not prove what the black fluid was or what the white particles were. In addition the outdoor pool did not put residents at risk because the pool was closed off for repairs.
The evidence proved many parts of Cristal were unsightly and needed repair. The Agency did not offer evidence proving the nature or significance of any risks allegedly created by the conditions. It did not prove the unsightly conditions created risks. For example, although Ms. Crawford's notes (AHCA Ex. 116, depo. Ex. 1) indicated that her assignments included observations of mold, the Agency did not offer evidence proving the substance suspected to be mold was mold. A preponderance of the evidence did not persuasively prove that the conditions were unsafe or indecent.
Tag 160 – Alleged violation of rule 58A-5.024(1): Rule 58A-5.024(1)(i) requires facilities to have a grievance procedure readily available. Agency Exhibit 124 is the only evidence identified to prove this violation. It is a completed Statement of Deficiencies and Plan of Correction form. It is hearsay. It states that "based on a record review" the facility did not maintain a grievance procedure. The record provides no information about what the "record review" consisted of or what was reviewed. It also states that "the administrator's designee" said she could not locate the grievance log and procedure. Exhibit 124 is hearsay, as is the statement it reports. Furthermore, Agency Exhibit 69 is Cristal's grievance procedure.
Tag 30 – Resident 3 – Alleged violation of rule 58A-5.0182(6) and section 429.28(1)-(2): Agency proposed finding of fact 18 claims that the rule requires a facility to give a resident 45 days' notice of intended discharge. The rule does not impose this requirement. Section 429.28(1)(k) does. It requires 45 days' notice of termination of residency, with exceptions including certification by a doctor that the patient requires "emergency relocation to a facility providing a more skilled level of care … ."
The Agency relies upon the testimony of Surveyor Vilma Pellot to prove this charge. She testified that Resident 3 was transferred to the hospital because he had blood in his urine. The testimony does not indicate where the witness obtained that information, specifically whether she observed a record or was told the information. Ms. Pellot testified that a representative of Cristal told the hospital's discharge planner that Cristal could not take Resident 3 back because Cristal was not using its
extended congregate care license, which would authorize it to provide the resident the care now needed. The information the Agency relies upon to prove the charge depends upon hearsay. The Agency did not prove the violation alleged in Tag 30 as presented in Agency proposed finding of fact 18.
Tag 25 and Count I of the Complaint – Residents 1, 4, 5, and 6 – Alleged violations of rule 58A-5.0182(1) and section 429.26(7): The rule requires the facility to provide care and services, including supervision, appropriate for each resident. It also requires a facility to maintain a written record of significant changes in each resident's health. It further requires an ALF to document communications with residents' health care providers and responsible parties about significant changes in a resident's condition. Section 429.26(7) requires a facility to notify a doctor when a resident shows signs of dementia or cognitive impairment or changes that may contribute to dementia or impairment. Section 429.26(7) imposes a similar obligation. Rule 58A-5.0131(32), quoted below, defines "significant change."
"Significant Change" means a sudden or major shift in behavior or mood inconsistent with the resident's diagnosis, or a deterioration in health status such as unplanned weight change, stroke, heart condition, enrollment in hospice, or stage 2, 3 or 4 pressure sore. Ordinary day-to-day fluctuations in functioning and behavior, a short-term illness such as a cold, or the gradual deterioration in the ability to carry out the activities of daily living that accompanies the aging process are not considered significant changes.
The Agency alleged that Cristal admitted Resident 4 in June 2016 and that Cristal documented that the resident suffered over 20 falls starting the day after admission through February 10, 2017. Thus the falls could not have been a change in condition. They also do not fit within the rule definition of "significant change." In fact, Count I alleges that on the day of admission, the fall risk score was 22 on a scale of zero to 28. Agency proposed finding of fact 19 addresses the claimed violation. It argues Cristal's records lack documents showing any effort to minimize the falls. If proven, the absence of the documentation would not violate the supervision
requirements of rule 58A-5.0182(1) or section 429.26(7), even though it may violate other rule and statutory requirements not charged.
The Agency did not prove the charged rule and statute violations by a preponderance of the evidence. It did not offer the records into evidence. The cited rule does not require intervention as the Agency argues. The Agency also did not prove the resident showed signs of cognitive impairment or changes that may contribute to dementia or impairment.
Tag 25 also alleged that Resident 6 was prescribed an inhaler for use at 9:00 a.m. and that on May 8, 2017, Cristal staff provided the inhaler at 11:30 a.m.
The resident was receiving oxygen at the time. The Agency did not prove the charge by non-hearsay evidence. Its proof depends upon a hearsay account of what the resident said. Also the Agency did not prove by a preponderance of the evidence that the inhaler was prescribed for use at 9:00 a.m.
Agency proposed finding of fact 19 refers to charged violations of the same rule and statute related to Residents 1 and 5. But it does not address the charges. It does not cite to evidence to support them. Charges related to Residents 1 and 5 are deemed abandoned.
Survey Ending July 13, 2017
Tag 8 and Count XV – Residents 4, 7, 11, 19, 21, 22, 24, and 32 – Alleged violations of Rule 58A-5.0181(2) and section 429.26(4)-(6): The rule establishes admission criteria for an ALF. Facilities must document compliance with the criteria by obtaining and maintaining an accurate and complete report on an Agency form of documented health assessment of the resident by a licensed health care provider, completed either 60 days before admission, or within 30 days after admission. This ensures that residents meet specific admission criteria. Rule 58A-5.0181(2)(c) requires a facility to obtain any required information not contained in the assessment within 30 days after admission. Thus proving the date of admission is important to proving violation of the rule.
The health assessment for Resident 24 was dated March 30, 2016. The Agency maintains that the resident was admitted to Cristal in July of 2017. The only
evidence of the admission date was the testimony of Lorienda Crawford that she "identified this resident was admitted into the facility in July of 2017 … ." There is no document to corroborate this bare assertion or any information, such as an explanation of how Ms. Crawford determined the admission month that would make the statement persuasive. The Agency did not prove Resident 24's admission date by a preponderance of the evidence. Consequently it did not prove the charges in Tag 8 and Count XV for Resident 24.
The health assessment form for Resident 22 did not provide the required medical certification identifying the professional who conducted the assessment. The Agency proved the violation alleged by Tag 8 and Count XV for Resident 22.
Section 429.26(4) requires a facility to maintain the assessment as a permanent part of each resident's record. Although Cristal had a partially completed assessment for Resident 7, the clear and convincing evidence proved that Cristal did not maintain it as a permanent part of the resident's record. The Agency proved the charges of Tag 8 and Count XV for Resident 7. The violation posed an indirect or potential risk to the resident and is properly classified as a Class III violation.
The assessment form for Resident 32 did not contain a response to the section asking if the individual needed help taking medications. There is no proof that Cristal obtained this required information. But the form is dated June 13, 2017. The last day of the survey was 30 days after. In addition the Agency did not prove Resident 32's date of admission. The Agency, therefore, did not prove the charges described in Tag 8 and Count XV for Resident 32.
The health assessment for Resident 4 indicated a diagnosis of dementia and described the resident's cognitive or behavioral status as aware with confusion. Yet the form did not contain a response in the area asking if the resident required
24-hour nursing or psychiatric care. This is a deficiency the rule required Cristal to correct within 30 days after admission. The form is dated January 8, 2017. The July 2017 survey dates are well after the 30 days allotted the facility to obtain missing information, even assuming the form was provided at the latest authorized date. The Agency proved the charges of Tag 8 and Count XV for Resident 4. The
absence of this information created an indirect or potential risk to residents. The Agency properly classified the offense as a Class III violation.
Cristal produced a health assessment form for Resident 7. It was not with the resident's records as required. The form for Resident 7 also did not provide the required medical certification identifying the professional who conducted the assessment. It is also undated. The Agency proved Cristal violated the requirement to maintain the form with Resident 7's records.
Although Agency proposed finding of fact 20 asserts Tag 8 and Count XV alleged current health assessment violations for Residents 11, 19, and 21, the Agency does not identify evidence supporting the assertion in its proposed finding of fact 20. The violations related to these residents are deemed abandoned.
Tag 53 – Residents 6 and 23 – Alleged violations of rule 58A-5.0185(4): The rule requires a facility to employ or contract with an appropriately licensed individual to be available to administer medication. The Agency's proof relies upon hearsay. It did not prove the violation as to either resident.
56. Tag 54 – Residents 3, 6, 8, 9, 12, 14, 16, 24, 25, 26, 27, and 28 – Alleged violations of rule 58A-5.0185(5): The rule requires ALFs to maintain up-to-date MORs for all residents receiving assistance with medication.
Several residents' MORs did not document compliance with medication administration directions. The MORs for Residents 24, 25, 26, 27, and 28 stated that administration of medication was to be observed. The MORs did not document observation of the administration of several medications on several days.
For Resident 16, the MOR did not indicate whether Donepezil was administered on the 11th of the month as prescribed. For Resident 9, the MOR did not indicate whether Lisinopril was administered on the 9th and l0th of the month.
For Resident 14, the MOR indicated that the medication Lorazepam was administered three times. But only one dose was absent from the medication container.
Resident 3's MOR was blank for two doses of potassium. Resident 8's MOR was blank for one dose of aspirin. Resident 12's medication record was blank for nine doses of Levothyroxine.
Cristal asserted the missing documentation was due to Cristal's transition to an electronic record system. The facility's obligation to maintain records and the resident's need for accurate records is not abated by a change in recordkeeping systems.
These multiple violations were indirect or potential risks to residents. The Agency properly classified them as Class III violations.
Tag 55 and Count XVII – Residents 33, 36, 37, 38, and 39 – Alleged violations of rule 58A-5.0185(6): The rule imposes medication storage and disposal requirements. It requires that a facility give unused medications to residents at discharge unless, after receiving notice, the resident abandons the medications by inaction. The Agency asserts that, when Cristal changed pharmacies, Cristal allowed medications of the discharged Residents 33, 36, 37, 38, and 39, to be removed and donated to a "third-party charity." The Agency further asserts that Cristal did not obtain resident consent to dispose of the medications.
To prove the rule-required elements, the Agency needed to prove that the residents were discharged and that the medications were not offered to them. The Agency evidence is a mélange of "observation of medications, record review, and interview." The Agency's evidence depends upon hearsay and provides insufficient detail to make the vague descriptions of "record review" and "interview" persuasive. The "interview" references mean that unknown parts of the factual statements come from hearsay. The credible persuasive evidence is not sufficient to prove the Agency's claims by a preponderance of the evidence.
Tag 56 and Count XIII – Resident 19 – Alleged violation of rule 58A-5.0185(7): Rule 58A-5.0185(7) governs medication labeling and orders. Rule 58A-5.0185(7)(c) states:
If the directions for [medication] use are "as needed" or "as directed," the health care provider must be contacted and
requested to provide revised instructions. For an "as needed" prescription, the circumstances under which it would be appropriate for the resident to request the medication and any limitations must be specified; for example, "as needed for pain, not to exceed 4 tablets per day." The revised instructions, including the date they were obtained from the health care provider and the signature of the staff who obtained them, must be noted in the medication record, or a revised label must be obtained from the pharmacist.
The Agency maintains that Resident 19 had several "as needed" prescriptions which did not specify the circumstances in which administration of the medications would be appropriate and that Cristal did not obtain revised instructions to correct the deficiency. The evidence offered to support this charge is general testimony, without detail, such as identification of what records the witness reviewed. A representative example follows. "That Resident No. 19 has several medications of the prescription already [sic] as p.r.n., as needed." Asked in a broad and general way if she was able to find "any orders regarding the as-needed medication," the witness replied "I did not." (Tr. Vol. III, p. 497).
The Agency did not prove the charged violation by a preponderance of the evidence.
Tag 93 – Food Service – Alleged violation of rule 58A-5.020(2): The rule establishes food service standards. Rule 58A-5.020(2), among other things, requires facilities to date and plan menus at least one week in advance. It also requires facilities to post the menus conspicuously or otherwise make them easily available to residents. During the survey period a menu was posted. It was not dated. In addition, a meal served one day of the survey was not the meal described in the posted menu. This is the third time Cristal violated the food service rule, in the same way. The Agency proved a violation of the rule during the survey period ending May 10, 2017, (Finding of Fact 33) and in Cristal I. The violation created an indirect or potential risk to residents and was properly classified as a Class III violation. The refusal to
comply with this simple requirement also manifests a repeated disregard for the rules governing operation of an ALF.
Tag 152 – Physical Plant/Safe Living Environment – Alleged violation of rule 58A-5.023(3): Among other things, the rule requires a facility to provide "a safe living environment pursuant to section 429.28(1)(a), Florida Statutes." Section 429.28(1)(a) says that residents have a right to "[l]ive in a safe and decent living environment, free from abuse and neglect."
At the time of the July 2017 survey, sand filled the pool that had black fluid in it in May. Many of the conditions noted during the May survey remained, including exposed pipes with unidentified brown material on them and broken ducting. The photographed areas of Cristal look poorly maintained and unattractive. But, as with the similar conditions from the May survey, there is no persuasive evidence identifying what substances caused the brown spots on the pipes, what the pipes convey, or generally how the conditions observed pose a threat to resident safety or were, as the Agency surveyor stated, "hazardous to their health." The surveyor also went to the crux of the failure of proof for this tag saying, "We don't know what this black stuff was and all that… ." Expert testimony on this issue may have made a difference in the outcome. The same is true about testimony stating a lobby bathroom was leaking. The witness did not testify to observations establishing that the bathroom was the leak's source. The photograph provided does not support a finding that the leak came from the bathroom. A photograph does show that Cristal placed warning signs at the affected area. There is no evidence proving how long the condition had existed or if there had been a reasonable period of time to repair the problem.
The Agency did not prove the claims of Tag 152 by a preponderance of the evidence.
Tag 160 and Count XXII – Facility Records – Alleged violation of rule 58A- 5.024(1): Rule 58A-5.024(1)(b) requires an ALF to maintain a readily available, up-to- date admission and discharge log. The log must list, among other things, a resident's date of discharge, reason for discharge, and location to which the resident was
discharged. The Agency claimed Cristal's log did not list reasons for discharge or the locations to which residents were discharged for several residents. The log, Agency Exhibit 41, is illegible. The only other evidence offered was a general statement that "[t]he facility did not indicate on the log the reason for discharge and the place for discharge for several residents." (Tr. Vol. II, p. 393). The Agency's evidence was not persuasive. The Agency did not prove this tag and count by a preponderance of the evidence.
Tag 30 – Residents 14, 24, 26, 27, and 28 – Rule 58A-5.0182(6) and section 429.28(1)-(2): Rule 58A-5.0182(6)(e) requires facilities to compensate residents for work performed for the facility other than work performed in their own living areas and provided for in the resident's contract. The rule requires compensation "in compliance with state and federal wage laws." Section 429.28 is part of the Resident Bill of Rights. It does not contain a prohibition or requirement about residents performing work for a facility.
Agency proposed finding of fact 28 asserts Cristal violated the rule by failing to compensate Resident 14 for work performed as a facility employee. It cites only Agency Exhibit 151 to support this charge. The exhibit contains only hearsay reports of Resident 14 volunteering to work at the front desk two hours a day for $20.00 per day. In addition, the hearsay does not establish that the resident was not paid or that
$10.00 per hour did not comply with state and federal wage laws. Proposed finding of fact 28 also lists Residents 24, 26, 27, and 28. But it makes no specific claims about them and cites no evidence mentioning them. Charges related to them are deemed abandoned. The Agency did not prove Tag 30.
Tag 162 – Residents 7, 18, 24, 27, and 31 – Alleged violation of rule 58A- 5.024(3): Rule 58A-5.024(3) imposes a number of recordkeeping requirements upon ALFs. Facilities must retain resident records for two years after a resident's departure, except for contracts, which an ALF must retain for five years. Fla. Admin. Code R. 58A-5.024(3)(q). The rule requirement that the Agency argues Cristal violated is the requirement to maintain a weight record, initiated on admission, for each resident. The Agency and its witnesses incorrectly state that the rule requires
facilities to record resident weights every six months. That requirement applies only for residents receiving assistance with daily living activities. Fla. Admin. Code R.
58A-5.024(3)(f).
When the surveyors asked Cristal to provide the weight records, staff presented a binder with tabs bearing people's names. But the pages were empty. There were no weight records for Resident 24, even in the resident's individual file.
Not recording weights creates a risk that material weight gains or losses will go unnoticed and therefore unaddressed. Cristal's failure to comply with the rule was an indirect or potential risk to residents. The Agency properly classified the failure as a Class III violation.
The records for Resident 3 contained only an order for an ultrasound and the test results. They did not include the required health assessment form, demographic information (such as the resident's birth date), MORs, or physician records. Cristal's failure to comply with the rule created an indirect or potential risk to the resident. The Agency properly classified the violation as a Class III violation.
Agency finding of fact 29 refers to a violation in this tag involving Resident 27. It does not otherwise identify a violation. Consequently this charge is deemed abandoned.
Agency finding of fact 29 refers to a violation in this tag involving Resident 18. It does not otherwise identify a violation. Consequently this charge is deemed abandoned.
The Agency contends that Cristal did not maintain accurate records of the medication orders for Resident 7. On July 10, 2017, Resident 7 had a bag of medications in her room. Her records did not contain a health assessment form or orders indicating whether she required assistance or observation administering medication. The health assessment form was not signed by a licensed professional. On July 12, 2017, staff produced an order dated that day stating the patient could self-administer medications. This violation, although a Class III violation, was cured for that patient.
Tag 25 – Residents 8, 9, 13, 16, 21, 24, 30, 31, and 32 – Alleged violations of rule 58A-5.0182 and section 429.26(7): Agency proposed finding of fact 30 addresses these alleged violations. Rule 58A-5.0182(1) sets standards ALF supervision of residents. Rule 58A-5.0182(1)(c) requires facilities to maintain a general awareness of a resident's whereabouts. Section 429.26(7) requires a facility to "notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment." The Agency alleged, but did not prove, failure of Cristal to be aware of Resident 31 leaving to go camping or on an errand.
The Agency did not prove a violation involving Resident 31 by a preponderance of the evidence.
The Agency described Resident 32 suffered a chemical burn on her lower body. The Agency relied upon hearsay to prove claims about Cristal's care for this resident after the burn. It did not assert a failure of supervision. As important for this proceeding, the rule and statute the Agency claims Cristal violated, do not address quality of medical care. The Agency did not prove the charged violation for Resident 32.
Hearsay corroborated by a party admission proved that at some point in Resident 30's stay at Cristal, the facility sent her to a hospital because of complaints of pain and numbness. A complaint requiring medical attention from a hospital is a significant change in condition. Cristal did not notify the resident's health care provider of this development. The records corroborate hearsay from the manager at that time reporting she did not notify the resident's health care provider, as required by rule 58A-5.0182(1)(d). Failure to advise a resident's health care provider of a condition serious enough to require treatment at a hospital violates rule 58A- 5.0182(1)(d). The violation presents a direct risk to the resident. The Agency properly classified the violation as Class II.
Although the Agency listed Residents 8, 9, 13, 16, 21, and 24 in proposed finding of fact 30, it does not address care provided or cite evidence purportedly
proving any violations involving their care. Those alleged violations are deemed abandoned.
Tag 81 – Staff Training – Alleged violation of rule 58A-5.0191(2):
Rule 58A.0191(2)(b)3 says that within 30 days of employment, direct care staff must receive in-service training that covers facility emergency procedures. Agency proposed finding of fact 31 alleges that a staff member began working at Cristal on May 8, 2017, and that at the time of the survey, Cristal had employed the staff member for more than 30 days. The proposed finding does not identify the staff member. Review of the exhibit cited indicates that this proposed finding refers to Staff D. The proposed finding further alleges that Staff D had not received the required emergency procedure training within 30 days of employment. The Agency's sole evidence about Staff D's hire date was this testimony: "So for this staff, in review of this staff's record, they were hired on May 8, 2017." Among other things, the testimony did not identify the document the witness relied upon or provide grounds to determine that it is reliable. The Agency offered no documents to support the charge. The evidence offered to prove Staff D did not receive the required training was equally sparse. The Agency did not prove the charge by a preponderance of the evidence.
Rule 58A-5.0191(2)(f) requires that within 30 days of employment direct care staff must receive in-service training that covers resident elopement and response policies and procedures. As with the inadequate attempts to prove deficient emergency procedure training, the Agency also failed to present evidence satisfying its burden of proof for this charge.
Survey Ending September 14, 2018
Tag 8 and Count XV – Residents 4, 13, 15, 23, 33, and 34 – Alleged violations of rule 58A-5.0181(2): The rule establishes admission criteria for an ALF. Facilities document compliance with the criteria by obtaining and maintaining an accurate and complete resident health assessment by a licensed health provider documented on an Agency form completed either 60 days before admission, or within 30 days after admission. This ensures that residents meet specific admission criteria. The health
assessment form for Resident 13 did not include the date on which the health care provider conducted the examination. This makes it impossible to determine if the provider conducted the assessment during the required time period. Cristal did not contact the provider to obtain the missing information. This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation.
The most recent health assessment for Resident 15 was dated June 4, 2018. It provided conflicting information that the resident required both the administration of medications and assistance with self-administration of medications. Despite having over 90 days to obtain clarification of these conflicting instructions, Cristal had not done so. Thus the assessment did not comply with rule 58A-5.0181(2)(a)5. This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation.
Agency proposed finding of fact 33 refers to violations for Residents 4, 23, 33, and 34. However, it provides no information about the alleged violations and does not cite to evidence that might indicate violations for those residents. Therefore, those claims are deemed abandoned.
Tag 54 – Residents 3, 12, 14, 18, 33, and 34 – Alleged violations of rule 58A- 5.0185(5): Rule 58A-5.0185(5)(b) requires ALFs to "maintain a daily medication observation record (MOR) for each resident who receives assistance with self- administration of medications or medication administration." It further lists required information for each MOR.
Resident 12's June 16, 2018, MOR for Travatan ZO, which was to be administered nightly, did not show that the medication was administered on June 16, 2018. The MOR also did not show that Risperidone was administered on July 1, 2018, when the MOR indicated that it should be administered twice a day.
The MOR did not record administration of Vitamin B1 on July 29, 2018, although it was to be administered daily. These deficiencies created an indirect potential risk to the resident, which is properly classified as a Class III violation.
The MOR for Resident 18 on July 23, 2018, did not document administration of 21 different medications or provide an explanation why the medications were not administered, if they were not. This created an indirect or potential risk to the resident. It is properly classified as a Class III violation.
The MOR for Resident 3 for August 7 and 16, 2018, indicated that multiple medications were withheld pursuant to physician's order. Cristal did not produce documentation of the physician's orders to withhold. Rule 58A-5.0185(5) does not, however, require maintaining the orders as part of the MOR. The Agency did not prove the alleged Tag 54 violation involving Resident 3 by a preponderance of the evidence.
Agency proposed finding of fact 34 did not identify any support for violations related to MORs for Residents 14, 33, and 34. These claims are deemed abandoned.
Tag 55 and Count XVII – Residents 18, 13, and 17 – Alleged violation of rule 58A-5.0185(6): Rule 58A-5.0185(6)1 requires a facility to return centrally stored medications of those residents for whom "[t]he facility administers the medication" and in other circumstances not involved here. The rule also requires an ALF to store or return discontinued medications to the resident, in case the medication is re- prescribed.
Tag 55 and Count XVII assert that Cristal improperly returned medications of Resident 18 to a former pharmacy when Cristal changed pharmacies. The Agency's evidence relies upon hearsay and is not persuasive. The Agency did not prove its assertions about returning medications to the former pharmacy by a preponderance of the evidence.
Resident 13 kept Pepto-Bismol, hydrogen peroxide, and an over-the-counter foot medication unsecured in the resident's bedroom. Resident 17 kept aspirin, ibuprofen, and arnica cream unsecured in the resident's bedroom. The preponderance of the evidence does not prove that the facility administered those medications. Therefore the Agency did not prove a violation of the requirement in rule 58A- 5.0185(6)1 for central storage of medications administered by the facility.
Tag 56 and Count XIII – Resident 19 – Alleged violation of rule 58A- 5.0185(7): Rule 58A-5.0185(7)(c) requires a facility to ask a provider who prescribes a medication "as needed" to clarify the prescription by describing the circumstances under which administering the medication is appropriate. The physician's orders for Resident 19 included a prescription originating on June 4, 2017, for Senokot Suboxone, as needed. The orders did not explain when administering the medication was appropriate. Cristal did not obtain a physician's order clarifying when the medication should be provided.
Resident 19 had diagnoses of dementia and altered mental status. The unlicensed staff providing assistance with self-administration of medications did not have the training or expertise to determine when a cognitively impaired resident needed a medication. The failure to obtain clarification created an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation.
Tag 152 and Count XIX – Physical Plant/Safe Living Environment – Alleged violations of rule 58A-5.023(3): Rule 58A-5.023(3)(a)1 says a facility must provide a safe living environment. Rule 58A-5.023(3)(a)2 states that all ALFs "[m]ust be maintained free of hazards… ." Rule 58A-5.023(3)(a)3 states that all ALFs "[m]ust ensure that all existing architectural, mechanical, electrical and structural systems and appurtenances are maintained in good working order." The Agency, in proposed finding of fact 37, incorrectly describes the rule as requiring a "decent living environment."
Photographs and testimony about personal observations of Agency personnel on the days of the survey establish that Cristal was in run-down condition. Carpeting in the common areas, was dirty. Something had stained the carpet in front of a resident's door and in some residents' rooms. Small areas of sheet rock were broken or worn away. Some walls were dirty and stained near the baseboards. A baseboard was cracked and separated from the wall. The baseboard's paint was chipped. Some baseboards were missing. Some tiles in an elevator were cracked.
The lobby ceiling had water leaks. Buckets were placed in the lobby to catch the drips. A black substance coated some of the ceiling vents and some carpets. Some ceiling tiles were missing. Cristal did not have an operational emergency generator.
The evidence did not prove how long the conditions had existed. The evidence did not show what the stains and dark substances were or what caused them. The Agency did not offer testimony from mechanical experts, structural experts, mold remediation experts, or other experts who could have established the cause of the conditions described above or the nature of the risks, if any, they presented to residents. The Agency failed to offer persuasive evidence that the unsightly conditions observed and photographed at Cristal were unsafe or hazardous. It also did not offer persuasive evidence that Cristal's architectural, mechanical, electrical, or structural systems were not in good working order. The Agency did not prove the charged violations by a preponderance of the evidence.
Tag 160 and Count XXII – Residents 22, 24, and 32 – Alleged violations of rule 58A-5.024(1): Rule 58A-5.024(1)(b) requires a facility to maintain an up-to-date admission and discharge log. At the time of the survey, Residents 22, 24, and 32 had been discharged. Cristal's log did not list these three residents as discharged. This finding relies upon a report of what the administrator said. Section 90.803(18)(a) permits consideration of the testimony as a party admission.
This rule violation created an indirect or potential risk to the residents. It is properly classified as a Class III violation.
Rule 58A-5.024(1)(d) requires a facility to have the "[t]he facility's emergency management plan, with documentation of review and approval by the county emergency management agency, as described in Rule 58A-5.026 F.A.C." readily available. The only evidence the Agency identifies (in proposed finding of fact 38) as proving a violation of this requirement is a surveyor's testimony that, "I identified that they do not have a copy of their emergency plan that was approved by the county or a satisfactory fire inspection." (Tr. vol. I, p. 130). The witness did not say how she "identified" the absence of the plan (or approval of a plan) or what files, if any, she reviewed. It is impossible to divine from the witness' single sentence if she
"identified" the absence of the plan from statements of other people. Reliance upon hearsay statements by all the Agency witnesses was a common failing. The minimal and uninformative testimony is not persuasive. It does not suffice to prove by a preponderance of the evidence that Cristal did not maintain an approved emergency management plan.
Rule 58A-5.024(1)(k) requires a facility to have readily available "[a]ll fire safety inspection reports issued by the local authority or the State Fire Marshal pursuant to section 429.41 F.S., and Rule Chapter 69A-40, F.A.C., issued within the last two years." The only evidence offered to support this charge is the vague and unpersuasive sentence quoted above. The Agency did not prove by a preponderance of the evidence that Cristal failed to maintain the required fire safety inspection reports. In addition, on September 30, 2018, the City of Palm Bay Fire Marshal's Office found Cristal "in compliance with all applicable Florida State Fire Codes."
(C. Ex. 7).
Rule 58A-5.024(1)(i) requires facilities to maintain "[a]ll sanitation inspection reports issued by the county health department pursuant to Section 381.031, F.S. and Chapter 64E-12, F.A.C, issued within the last two years." The Agency relies, in proposed finding of fact 38, upon the surveyor testimony discussed above. The testimony is not persuasive and did not prove the claimed violation by a preponderance of the evidence. It does not even refer to sanitation inspections.
Tag 162 and Count XI – Residents 2, 23, 33, and 34 – Alleged violations of rule 58A-5.024(3): Rule 58A-5.024(3)(g) requires "facilities that will have unlicensed staff assisting the resident with the self-administration of medication, [to maintain] a copy of the written informed consent described in Rule 58A-5.0181, F.A.C., if such consent is not included in the resident's contract." The signed informed consent form for Resident 2 provided the following opportunity to record the resident's consent: "In our facility, staff assisting residents with self-administration: will or, will not be overseen by a licensed nurse." Neither "will" nor "will not" is selected. However, the Agency did not place the resident's contract in evidence. So the record does not establish the condition precedent to requiring a separate consent form. The Agency's
attempted proof of this issue suffered the same failing in Cristal I, as stated in paragraph 299 of the Recommended Order. Contrary to Agency proposed finding of fact 39, Count XI does not allege a violation of this rule.
Agency proposed finding of fact 39, addressing this charge, lists Residents 23, 33, and 34, as people whose records also lacked the required consent. The proposed finding does not identify evidence supporting the charge. The Agency did not prove a violation related to these residents.
Tag 167 – Residents 2 and 18 – Alleged violation of rule 58A-5.205 and section 429.24: Among other things, the rule requires facilities to execute contracts with residents. The rule requires a number of provisions for the contracts. One is, "[a] provision that residents must be assessed upon admission and every 3 years thereafter, or after a significant change … ." Hearsay testimony of Ms. Williams indicated that Resident 18's contract did not contain this provision. The records for Resident 18 did not include a supplement to the contract with this provision. The fact that Cristal subsequently obtained a supplement to the contract with the provision (C. Exhibit 14, p. 210) corroborates Ms. Williams' testimony. The supplement is dated November 9, 2018, more than 30 days after the Agency advised Cristal of the deficiency.
Clear and convincing evidence proved Cristal violated rule 58A-5.205. The Agency properly classified this as a Class IV violation.
The Agency also claims in proposed finding of fact 40 that the contract for Resident 2 did not contain the required assessment provision. The Agency did not prove this claim, as described in proposed finding of fact 40. It cites to Agency Exhibit
126. The exhibit does not mention Resident 2's contract. The Agency also cites to pages 130 through 220 of Volume I of the transcript and all of Volume II to support its claim. The cited testimony does not establish by a preponderance of the evidence that Resident 2's contract did not have the required provision. The Agency did not prove the charged violation as to Resident 2.
Tag 25 and Count X – Residents 13 and 15 – Alleged violations of Rule 58A- 5.0182(1) and section 429.26(7): Agency proposed finding of fact 41 addresses the
alleged violations. Rule 58A-5.0182(1) establishes supervision requirements for the care of ALF residents. Rule 58A-5.0182(1)(d) requires a facility to contact a resident's health care provider or other appropriate party if a resident exhibits a "significant change." Rule 58A-5.0182(1)(f) requires a facility to maintain a written record of any significant changes.
The Agency maintains in proposed finding of fact 41 that Resident 13 declined 11 medications and that this was a significant change that should have been reported. Resident 2's MOR reflected that Resident 2 refused assistance with administration of 13 medications on September 8, 2018, and one medication on September 10, 2018. The Agency did not present evidence proving how refusing assistance amounted to a significant change in the resident's condition, as defined in rule 58A-5.0131(32). In addition, it offered only hearsay to prove that Cristal did not inform the resident's health care provider. And nothing indicates that informing the health care provider is recorded on the MOR. The Agency did not prove the charged violation.
The Agency maintains that Resident 15's MORs show the resident declined numerous medications in July and September. The evidence did not show this. The resident's MORs document the resident declining assistance in July and September of 2018, not declining medication. The Agency did not prove that declining assistance with medications amounted to a significant change in the resident's condition, as defined by rule. In addition it offered only hearsay to prove that Cristal did not inform the resident's health care provider. Finally, there is no place on the MOR to indicate that a facility informed a resident's health care provider or other appropriate person about a significant change. So the absence of a notation on the MOR does not lead to a conclusion that the facility did not communicate with the health care provider. The Agency did not prove the violation involving Resident 15.
Section 429.26(7) imposes obligations to report signs of dementia, signs of cognitive impairment, or a change in a resident's condition to a physician. The Agency did not prove a violation of this statute involving Resident 15 by a preponderance of the evidence.
Agency proposed finding of fact 41 discusses application of a topical gel to Resident 15. The resident had a prescription for a topical gel, Diclofenac Sodium, one or two grams to the affected area. A surveyor observed a staff member squeezing a portion of gel onto the staff member's index finger instead of measuring the gel with the pharmacy-provided measuring tape. The surveyor had not heard the resident request any specific amount of the gel. That does not mean the resident had not requested it before the surveyor came within hearing distance. In addition, improper measurement of the medication would not violate section 429.26(7) or rule 58A- 5.0182(1), although it may violate other rules or statutes not charged.
Tag 78 – Staffing Standards/Staff B – Alleged violation of rule 58A-5.019(2): The rule establishes requirements for ALF staff. Rule 58A-5.019(2)(a) requires staff to provide, within 30 days of beginning employment, a health care provider's written statement documenting "that the individual does not have any signs or symptoms of communicable disease." Cristal produced a completed form stating that Staff B satisfied the requirement. The Agency's evidence offered to prove that Cristal had not fulfilled its obligation to maintain a health care provider's statement for Staff B was the testimony below and a nearly identical statement in the surveyor's notes on the Statement of Deficiencies.
Staff B, when I reviewed her record, she had a statement in the record, and the space for the healthcare provider's signature and name was not legible. Could not determine who completed the form. There were no credentials listed, like "M.D." or "advanced registered nurse." We could not determine who completed the form because the signature was not legible. (Tr. Vol. II, p. 403).
The Agency could have entered the form into evidence. But it did not. The absence of the form makes it impossible to determine the accuracy of the witness' characterization or to be confident that the credentials were not provided on the form, rather than also being "illegible." The rule does not impose a legibility requirement on a doctor's signature. These failings result in a failure to prove the charge by a preponderance of the evidence.
Tag 93 and Count XXI – Food service standards – Alleged violation of rule 58A-5.020(2): The rule requires a facility to maintain a three day supply of nonperishable food. Fla. Admin. Code R. 58A-5.020(2)(h). It also imposes a requirement to have an emergency supply of water. The rule says: "Water sufficient for drinking and food preparation must also be stored, or the facility must have a plan for obtaining water in an emergency, with the plan coordinated with and reviewed by the local disaster preparedness authority." Cristal's food manager identified an uncovered 100 gallon barrel as containing the facility's sole emergency water supply. This was the only visible supply of emergency water. The barrel contained a dark substance with slime and white particles floating on top. The description of the water and accompanying photographs convincingly establish that the fluid was not potable water. Cristal's administrator at the time also testified at hearing that Cristal did not comply with the requirement for an emergency supply of water.
The Agency proved the charged violation by clear and convincing evidence. Cristal's violation was a direct risk to residents. The Agency properly classified it as a Class II violation.
Tag 90 and Count V – Staff Training – Alleged violations of rule 58A- 5.0191(11) - (12): Rule 58A-5.0191(11)(a) requires that all facility employees receive at least one hour of training in the facility's Do Not Resuscitate Orders (DNRO) procedures within 60 days of the rule taking effect, if employed on that date, or within 30 days of hiring if hired while the rule was in effect. Rule 58A-5.0191(11)(b) requires newly hired employees to receive the same one hour of DNRO training within 30 days after beginning employment. Rule 58A-5.0191(12) requires a facility to maintain documentation of the training. Agency proposed finding of fact 44 addresses the charged violations of this rule.
Ms. Gulian-Andrews testified about the alleged deficiencies involving Staff D. The whole of her relevant testimony was her response: "No, there was not," to the question, "And was there any documentation regarding the facility's specific training?" (Tr. Vol. I, p. 118). There is no testimony about what files she reviewed or
how she determined which files to review. Also her memory was not clear enough for her to be certain about other training documents. "Q: Now, was there an online training certificate? A. I think there was, but it does not say in this [referring to surveyor notes]." This is not persuasive evidence establishing by a preponderance of the evidence that Staff D did not have the required training.
The Agency relies on the deposition testimony of surveyor Lorienda Crawford (Ex. 116, pp. 4 - 13) to support its claim that Staff A did not have the required certificate. The observations on the evidence about Staff D apply here. The Agency did not prove the charged violation involving Staff A's training.
Tag 81 and Count VI – In-service Training – Alleged violations of rule 58A- 5.0191(2) and (3): Rule 58A-5.0191(2) imposes a number of in-service training requirements for staff who provide direct care to residents. Also, rule 58A- 5.024(2)(a)1 requires ALFs to maintain documentation of compliance with all training and continuing education requirements in each staff member’s personnel records. Training in the facility's emergency procedures is one of the training requirements. Training in the facility's elopement policies and procedures is another. Agency proposed finding of fact 45 maintains that Cristal's records did not document that Staff A, B, and C received training in facility-specific emergency procedures and elopement policies. The testimony relied upon suffers from a lack of specificity, details, and information about how the witnesses searched for the required documents leaving the testimony unpersuasive.
Also the Agency did not prove that the employees provided direct care. This failure to prove an element of the violation results in the Agency not proving the charged violation. (Paragraph 61 of the Recommended Order in Cristal I highlights the significance of the distinction between requirements imposed upon direct care staff and others.)
Rule 58A-5.091(3) requires HIV/AIDS training for all employees. Agency proposed finding of fact 45 did not identify any evidence relevant to a violation of this rule.
The agency failed to prove the charged violations by a preponderance of the evidence.
Tag 200 and Count XXVI – Environmental Emergency Control Plan – Alleged violation of rule 58A-5.036: Rule 58A-5.036(1) requires an ALF to prepare a detailed plan "to address emergency environmental control in the event of the loss of primary electrical power … ." The requirements for the plan include "acquisition of a sufficient alternate power source such as a generator(s), maintained at the assisted living facility, to ensure that the facility" can maintain ambient air temperatures "at or below 81 degrees Fahrenheit for a minimum of ninety-six (96) hours in the event of the loss of primary electrical power." Fla. Admin. Code R. 58A-5.036(1)(a). The rule also requires a facility to submit its plan to the local emergency management agency for review and approval. Fla. Admin. Code R. 58A-5.036(2). An ALF must maintain a readily available copy of the plan. Rule 58A-5.036(4) requires facilities to implement the plan no later than June 1, 2018. The rule authorizes the Agency to extend an ALF's deadline to January 1, 2019. It also acknowledges a facility's right to seek a waiver or variance under section 120.542, Florida Statutes. To obtain an extension, a facility must show delays caused by issues beyond the facility's control, such as zoning approval processes and construction delays.
At the time of the September 2018 survey, Cristal did not have an approved emergency plan. It did not produce a plan for resident care in the event of power loss. Brevard County's Emergency Management office did not approve Cristal's emergency power plan until December 20, 2018.
Cristal did not have an emergency generator. It did not have a lease for a generator. The closest Cristal came to documenting fulfillment of the generator requirement was providing an unsigned copy of a rental application. On October 7, 2018, Cristal entered into a lease for a generator.
However, by letter dated July 31, 2018, the Agency advised Cristal, "The Agency for Health Care Administration (Agency) has received your request for an extension of time up to January 1, 2019, to come into full compliance with Rule 58A- 5.036, Florida Administrative Code (F.A.C.). Your request has been reviewed and
meets the criteria as indicated in the rule and has therefore been approved." (C. Ex. 6).
The letter does not limit the extension to just the generator requirement of rule 58A-5.036. Consequently, the Agency did not prove the charged violation by a preponderance of the evidence
Tag 813 – Background Screening – Alleged violation of rule 59A-35.090(3)(c): The rule requires a provider, like an ALF, to maintain in an employee's personnel file the eligibility results of an employee's background screening and, in some circumstances, an attestation of compliance with background screening requirements. Fla. Admin. Code R. 59A-35.090. The personnel file for contracted Staff E did not contain current background screening eligibility results. When asked to produce the screening results, Cristal did not. A review of the Agency's background screening website, however, revealed that Contracted Staff E had an eligible screening effective March 29, 2018.
The failure to maintain the background screening proof in contracted Contracted Staff E's personnel file is an unclassified violation.
Tag 814 and Count XXVII – Background screening – Alleged violation of section 435.12, Florida Statutes: Section 435.12(1) requires the Agency to create a web-based system known as the Care Provider Background Screening Clearinghouse (Clearinghouse). The Clearinghouse maintains the results of background screening and shares them among specified agencies. The law requires employers of persons subject to background screening to register with the Clearinghouse and maintain the employment status of all staff, other than those providing services through a contract with another entity, with the Clearinghouse. Section 435.12(2)(c) requires employers to report initial employment and any changes in status within ten business days.
Staff E contracted to provide nursing services at Cristal and worked there regularly. Cristal did not report her employment to the Clearinghouse. Cristal, however, added Contractor E and her background screening results to the Clearinghouse on September 11, 2018, during the survey. Also Contractor E, who also owned an ALF, was background screening eligible with fingerprints retained by
the Clearinghouse that would not expire until March 8, 2023. Cristal did not prove that Contractor E was an employee of a separate entity working at Cristal by virtue of a contract with the separate entity.
Cristal's failure to report Contractor E's employment to the Clearinghouse is an unclassified violation.
Tag 30 and Count IV – Residents 14 and 30 – Alleged violation of rule 58A- 5.0182(6) and sections 429.28(1) - (2): Surveyor Lorienda Crawford noticed that Resident 14's bed had half-rails. The resident was unable to raise and lower the rails.
Cristal's Director of Nursing was not aware the resident had obtained them. The half-rails, however, were plainly visible and would have been seen by any employee
entering the room. The record does not contain evidence indicating how long the half- rails had been in place. The resident's records did not contain a physician's order for bed rails or anything else indicating that a health care provider had approved their use. Cristal Exhibit 14, page 201, is a document purporting to record telephoned orders for the rails and the resident's consent. Since it records an oral communication, it is inadmissible hearsay. The evidence does not establish a predicate for the business records exception. In addition, the absence of evidence about how, when, and by whom the document was created alone makes it unpersuasive.
Rule 58A-5.0182(6)(g) provides: "[T]he use of physical restraints by a facility on a resident must be reviewed by the resident's physician annually. Any device, including half-bed rails, which the resident chooses to use and can remove or avoid without assistance, is not considered a physical restraint."
The clear and convincing evidence proved the charged violation. This violation posed an indirect or potential risk to the resident and was properly classified as a Class III violation.
Section 429.28(1) guarantees facility residents several rights including 45- day notice of termination of residence, the right to a grievance process, the right to manage their own financial affairs, and the right to a reasonable opportunity for regular exercise. Section 429.28(2) requires prominent display of the Residents' Bill
of Rights and contact information for the Elder Abuse Hotline and other resources. These provisions are not implicated in the facts asserted in Agency proposed finding of fact 49.
Although the Agency's proposed finding of fact 49 refers to a violation involving Resident 30 and Count IV alleges violations involving other residents, proposed finding of fact 49 only addresses a violation involving Resident 14. All other charges in Count IV are deemed abandoned.
Survey Ending December 5, 2018
The December survey was a follow up to the September 2018 re-licensure survey.
Tag 30 and Count IV – Residents 4, 11, and 33 – Alleged violations of rule 58A-5.0182(6) and section 429.28(1): Section 429.28(1) is part of the Residents' Bill of Rights described earlier. Rule 58A-5.0182(6), also described earlier, imposes requirements for implementing the rights. Rule 58A-5.0182(6)(b) requires a facility to have a written grievance procedure and to "be able to demonstrate that such procedure is implemented upon receipt of a complaint." Cristal has a grievance policy and procedure. They require Cristal's Executive Director to investigate a complaint and respond to the resident with a resolution within 24 hours or to extend the investigation period. They also require the Executive Director to document the resolution in the resident's chart.
A cook whom the residents liked and felt was a good cook gave Cristal notice that she was quitting. Resident 33 was one of several residents who, on
September 29, 2018, collectively submitted a complaint on the Cristal grievance log. The grievance stated, "We are furious that we no sooner have a new cook whom everyone seems to like and she's given notice that she's leaving. Now what? Can't Noiri chip in to keep her or is that a joke?" The residents demanded that Cristal increase the cook's pay so she would not leave. (AHCA Ex. 104)
Resident 33's chart did not contain documentation of the resolution of the grievance. Cristal's administrator acknowledged that he had not spoken to the residents about their complaint. He, understandably, did not view it as a grievance
about Cristal because the residents were not complaining of something Cristal did. The separation was the cook's decision. Nonetheless, Cristal's procedure required Cristal to respond to the complaint with a resolution, even if it was just to reject the grievance. Cristal did not do this. It was unable to demonstrate that, in this instance, it followed its grievance procedure.
The Agency proved the charged, technical violation. The violation did not create a risk of any sort to the residents. The violation is unclassified.
The Agency asserts that Resident 4 had complained of losing $600.00 and that Cristal had not followed its grievance process. The grievance is not recorded in the grievance log. The evidence to support this charge is vague, lacking details such as dates that might add credence. The evidence is uncorroborated hearsay. The witness's recall and the thoroughness of investigation of the complaint are questionable since the witness also testified that she could not find a Cristal grievance policy, although Cristal unquestionably had one. The witness also expressed difficulty remembering the claimed loss without consulting her survey notes. The Agency did not prove this charge by a preponderance of the evidence.
One of the surveyors smelled cigarette smoke on the first floor. She believed the smell was coming from the room of Resident 11. The Agency maintains that this proves Cristal did not provide the "safe and decent living environment, free from abuse and neglect" required by section 429.28(1)(a). The Agency does not maintain that tobacco use at an ALF makes it unsafe and indecent. It could not plausibly do so since rule 58A-5.0182(6)(d) requires a facility to have rules and procedures that must address the facility's policies about alcohol and tobacco use. This plainly contemplates possible tobacco use at an ALF. The Agency claims Resident 11 was violating Cristal's tobacco policies. But it did not offer Cristal's tobacco policies into evidence.
The Agency failed to prove the claimed violations involving Residents 4 and
11.
Tag 8 and Count XVI – Residents 15 and 16 – Alleged violations of rule 58A-
5.0181(2) and section 429.26(4)-(6): The requirement to obtain and maintain accurate
and complete health assessments imposed by the rule and statute were discussed earlier.
The health assessment form for Resident 15 stated on page one that the resident required a nurse to administer medication. On page four the form indicated Resident 15 only needed assistance with self-administration, which may be performed by non-licensed personnel. Cristal bore the obligation to seek clarification of the conflict. It had not done so.
The Agency proved by clear and convincing evidence that Cristal violated rule 58A-5.0181(2)(a)5 with Resident 15. The Agency had cited Cristal for this very violation with this resident during the September 14, 2018, survey. (Finding of Fact 89). This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation.
The Agency argues that Cristal did not have a completed health assessment form for Resident 16. Agency Exhibit 109, the health assessment form for Resident 16 indicated that the provider conducted the examination on October 31, 2020, an obvious typo. Cristal Exhibit 28, pages 1 through 5, also a health assessment form for Resident 16, records a July 27, 2018, date of examination. It is complete and detailed. The record includes contradictory and sincere, credible testimony from surveyor Ms. Williams and Cristal former Administrator Mr. Marcotte, both of whom reviewed the document on the day of the survey. The unresolved and unexplained conflict results in a failure to prove the alleged violation involving Resident 16 by a preponderance of the evidence.
Tag 54 – Resident 3 – Alleged violation of rule 58A-5.0185(5)(b): The rule requires an ALF to "maintain a daily medication observation record (MOR) for each resident who receives assistance with self-administration of medications or medication administration." It must include a chart recording each time the medication is administered, any missed dosages, refusals to take the medication, and medication errors. The rule states emphatically: "The MOR must be immediately updated each time the medication is offered or administered."
On December 4, 2018, a Cristal unit manager provided surveyor Robin Williams a November 2018 MOR for Resident 3 with a print date of
December 4, 2018. The MOR indicated that Resident 3 was to receive Morphine Sulfate ER 30 milligram tablets once every eight hours to be taken by mouth. The MOR did not record administration of the drug at 2:00 p.m. on November 17, 2018, or the 10:00 p.m. dose on November 22, 2018. Ms. Williams discussed the omission with Cristal's unit manager. The next day the unit manager gave Ms. Williams a copy of the MOR printed December 5, 2018. This copy had staff initials indicating that the two omitted dosages had been administered. The unit manager offered no explanation of why the MOR had changed.
The details of the surveyor notes, testimony from the surveyor at the hearing, the clear and distinct memory of the witness at the hearing, the precision of her testimony, as well as the consistency of the testimony with the contemporaneous survey notes left no uncertainty about the truth or accuracy of Ms. Williams' testimony. The clear and convincing evidence proves that Cristal violated the requirement to immediately update the MOR. This violation posed an indirect or potential risk to the resident. The agency properly classified it as a Class III violation.
Tag 55 and Count XVIII – Resident 37 – Alleged violation of rule 58A- 5.0185(6): The rule requires facilities to centrally store medications which it administers. The Agency failed to prove this charge by a preponderance of the evidence. Its proof relies upon hearsay. The witness’s memory was not clear and distinct. One example is this testimony on page 424 of Volume II of the Transcript.
So later it was found that the resident would go to the pharmacy and pick up her own medication. And she would
– she would bring everything back, but she kept those two. And the resident – it was "concerned" because the resident had a history of suicide and the healthcare provider did not want her to have her medication.
In addition, the evidence did not prove that Cristal administered the medication. It proved that Cristal assisted the resident with administration.
Tag 56 and Count XIV – Residents 12 and 39 – Alleged violation of rule 58A- 5.0185(7): Rule 58A-5.0185(7)(c) requires a facility to contact the prescriber of any medication with directions to administer "as needed" to obtain revised instructions. Surveyor Vanessia Bulger testified that during the survey ending December 5, 2018, the instructions on Resident 12's Tramadol and on her MOR said that the medication should be administered as needed. She also observed that the label and MOR instructions for Ventolin HFA, 108, stated to administer the drug as needed. She testified that the instructions on the MOR did not indicate when to administer the medications. The MORs do. For Tramadol, the MOR says it should be administered as needed for pain. For Ventolin, the MOR says that it should be taken for shortness of breath. There is no explanation why the witness either did not see the instructions or did not mention them during testimony. The Agency did not prove the alleged violation involving Resident 12.5
Agency proposed finding of fact 55, which addresses the alleged violations involving Residents 12 and 39, does not identify any evidence related to a violation involving Resident 39. That claim is therefore deemed abandoned.
Tag 152 and Count XX – Physical Plant/Safe Living – Alleged violations of rule 58A-5.023(3): The carpeting of the first floor of Cristal had multiple large, black stains. They also had an odor. The Agency offered no evidence about what caused the stains or the odor.
The hallway paint of the first floor was chipped. Paint was peeling from the walls. The walls were also scuffed. The wall board between two doors was broken near the baseboard. Scars and bumps on walls caused by wheelchairs are normal in ALFs. Damage caused by residents requiring repair is common in ALFs.
Rule 58A-5.023(3) requires ALFs to provide a safe living environment, to maintain a hazard-free facility, and to insure that systems and appurtenances are in good working order. The Agency did not offer evidence to show what caused the
5 This determinative contrast between a witness's recollection of what a document stated and what the document actually stated is a compelling example of the risks in relying upon testimony about a document to prove what a document says.
stains, such as evidence that they were due to mold. It also did not offer persuasive evidence to show how long the conditions identified had existed. The items described above are unsightly and make the facility unattractive at best. But a preponderance of the evidence does not establish that they make the facility unsafe or hazardous or that any building system is not in good working order. The Agency did not prove these charges.
Tag 163 – Resident 3 – Fraudulent Records – Alleged violation of section 429.29: Agency proposed finding of fact 57 addressing these charges relies upon the same facts as those involving the charge about Resident 3's MOR in Findings of Fact 159 and 160. A preponderance of the evidence does not establish that the obvious change was made to deceive or misrepresent. It could as easily have been Cristal’s effort to cure the deficiency.
Section 429.29 is the only statute that the Agency argues, in proposed finding of fact 57 that Cristal violated. That section, titled "Civil actions to enforce rights," creates a cause of action for residents whose rights established under Chapter 429 are violated. It also specifies the damages available, the burden of proof, the standard of proof, and the elements that a party must prove to recover. It does not create any requirement or prohibition affecting the operation of ALFs in general or regarding alleged fraud in ALF records specifically.
Tag 168 and Count VII – Resident 4 – Alleged violation of section 429.24(3)(a): Section 429.24 governs contracts between ALFs and residents. Subsection (3)(a) requires contracts to include a refund policy. The policy must "provide that the resident or responsible party is entitled to a prorated refund [of advanced rent or security deposit upon departing the ALF] based on the daily rate for any unused portion of payment beyond the termination date after all charges, including the cost of damages to the residential unit resulting from circumstances other than normal use, have been paid to the licensee." The law further requires an ALF to make the refund within 45 days of the termination date. It also states that if a facility fails to comply with the refund provisions the Agency shall impose a fine equal to three times the amount due the resident.
On August 13, 2018, Nathan Marcotte, Cristal's Administrator at the time, gave Resident 4 a letter reading as follows:
This is to inform you that Cristal Palace Resort PB LLC is no longer able to operate as a secured memory care facility. While we regret to inform you of this decision, we are excited about the opportunity for you to find a community in which you can thrive and be stimulated in the manner you deserve. Pursuant to our agreement and Florida regulations, this notice is being issued and gives 45 days to relocate.
We have thoroughly enjoyed working with you, and only make this decision based on your needs and quality of life. We ask that you please not feel abandoned or alone in this process-we at Cristal Palace have become family, and we intend to assist in every manner possible. Additionally, as an act of good faith, we have decided to refund your community fee of $1,500, as it is in no way the fault of your or your family that we have come to this decision. Please do not hesitate to call so that we can begin assisting you in finding your next, permanent home.
Resident 4 lived at Cristal for four months. As of the date of the hearing, Cristal had not paid the promised $1,500. Cristal's contract with Resident 4 contained the required refund terms.
Mr. Marcotte testified that he made a mistake and wrote the letter before checking for damage or other items that could be lawfully deducted from the required refund. Mr. Marcotte did not testify that he followed the process section 429.24(3)(a) requires an ALF to follow if it intends to make a claim against a refund. The required process includes providing written notice of the claim. He also did not identify any specific damages or charges that Cristal maintained it was entitled to deduct from the refund.
Clear and convincing evidence proved Cristal violated section 429.24(3)(a) by not giving Resident 4 his refund. The statute authorizes the Agency to collect a fine equal to three times the amount due the resident. In this case that amount would be
$4,500.00. The statute requires the Agency to remit one-half of the fine ($2,250.00) to the resident or the resident's estate.
Tag 90 and Count V – Alleged violation of rule 58A-5.0191(11): This rule governs DNRO training requirements addressed earlier. The rule requires direct care staff and staff involved in resident admission to receive at least one hour of facility- specific training in DNRO policies and procedures. Rule 58A-5.0191(12)(c) requires an ALF to document that staff completed required training. Therefore, if Cristal provided staff the required facility-specific training in DNROs, Cristal would have been able to provide the surveyors with documentation of the training.
This is another instance where the witness's testimony describing documents she said she saw is too vague and imprecise to be persuasive. The witness said broadly that "the staff did not have the required do not resuscitate order training." (Tr. Vol. II, pp. 413 - 414). The witness did not identify which staff members allegedly did not receive the required training. For that matter, neither does the Agency's proposed finding of fact 59, which addresses this charge. It refers only to "staff." The witness offered only general descriptions of certificates and agendas that she reviewed. She provided no information about where she found them, what efforts she made to determine if they were the only relevant documents, when the staff members were employed, or in what capacity they worked. The Agency did not offer the documents into evidence. This testimony is insufficient to be corroborated by the statements recorded in the surveyors' notes. In addition, the notes suffer from the same deficiencies as the testimony, other than identifying individual staff members. Furthermore, the notes are a collective work leaving the reviewer to guess which portions of them the witness authored. The Agency did not prove these charges by a preponderance of the evidence.
Tag 81 and Count VI – In-service Training – Alleged violation of rule 58A- 5.0191(2) - (3): Agency proposed finding of fact 60 maintains that Staff C and F did not receive the training required by rule 58A-5.0191(2) and (3.) Agency proposed finding of fact 60 addresses this charge.
Rule 58A-5.0191(2)(a)-(d) requires specific training for staff who provide direct care to residents. The Agency did not prove by a preponderance of the evidence that Staff C and F provided direct care to residents. (Page 26 of the Recommended Order in Cristal I highlights the significance of the distinction between requirements imposed upon direct care staff and others.)
In addition, Agency Exhibit 137, which is the surveyor notes that the Agency cites as supporting this charge, distinguish between staff and caregivers. Agency Exhibit 137 describes Staff C and F as staff, not caregivers. The Agency failed to prove that Cristal was required to provide the training required by rule 58A- 5.0191(2)(a)-(d) to Staff C and F.
Rule 58A-5.0191(2)(f) requires all facility staff to receive in-service training on the facility's elopement policies and procedures within 30 days of employment. It does not require that the training last a specific period of time. The Agency did not prove by a preponderance of the evidence that Staff C and F did not receive elopement training. In fact, Agency Exhibit 137 indicates that they did.
Rule 58A-5.0191(3) requires facility employees to "complete a one-time education course on HIV and AIDS … ." The record citations that the Agency provided in proposed finding of fact 60 to prove the charges here do not mention HIV and AIDS education or training. The alleged violation involving HIV and AIDS training is deemed abandoned. The Agency also did not prove a violation of rule 58A- 5.0191(3).
Tag 161 – Staff Records – Alleged violation of rule 58A-5.024(2) and section 429.275(2), Florida Statutes: Rule 58A-5.024(2)(a) mandates that the personnel records for each staff member contain "a copy of the employment application, with references furnished… ." The Agency maintains in proposed finding of fact 61 that the personnel records of employee G did not contain an employment application. The only evidence the Agency cites to prove this charge is Agency Exhibit 137, which is the composite surveyor notes of eight individuals. It states the personnel record for staff (G) did not contain an employment application. It also states that the administrator confirmed the record did not contain an application and that the
administrator could not produce one. The surveyor notes are inadmissible hearsay which is not sufficient to prove what the administrator said. In addition, if the notes were not hearsay, they would not be persuasive because the details are sketchy. For instance, the notes do not advise how the surveyors made sure they had reviewed the entire personnel record. Also the notes do not identify who authored the observations and statements they record. The Agency failed to prove this charge.
Section 429.275 requires facility administrators and owners to maintain accurate business records and liability insurance coverage. It lists documents that the administrator and owner must maintain in the personnel records for each staff member. A copy of the employment application with references is not one of the required records. The Agency did not prove Cristal violated this statute.
Tag 25 and Count X – Resident 15 – Alleged violation of rule 58A-5.0182(1) and section 429.26(7): Rule 58A-5.0182(1)(d) requires a facility to contact a resident's health care provider or other appropriate party if the resident exhibits a "significant change."
Section 429.26(7) requires a facility to notify a licensed physician "when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment."
The Agency contends, in proposed finding of fact 62, that the statement in MORs for Resident 15 say Resident 15 "declined numerous prescribed medications" in September and October of 2018 document a “significant change" or "change of condition" requiring Cristal to contact the resident's health care provider. The Agency cites Exhibit 141, Surveyors' Notes, to support its claim. That document states Resident 15 refused to take her medications on nine days in November. One of the surveyors, Ms. Williams, testified that Resident 15's MORs for July 2018 and September 2018 document that the patient refused medications.
The MORs are Agency Exhibits 83 and 84. The exhibits do not indicate that the resident refused medications. They indicate that Resident 15 declined assistance with administration of several medications. The Agency's Medication Practices rule
separately defines assistance with self-administration and administration. Compare, Fla. Admin. Code R. 58A-5.0185(3) and Fla. Admin. Code R. 58A-5.0185(4).
Assistance includes minor actions such as opening the medication container or making water or cups available. Id.
The Agency did not prove that Resident 15 declined medication. The Agency did not prove that refusing assistance with medication was a "significant change." The Agency also did not prove that if the resident had refused the medications, the refusal would have amounted to a significant change. It offered only a witness's broad, conclusory, summary opinion. The witness did not discuss information such as the conditions the medications treated, the likely effect of not taking them, or any perceived changes in the resident's condition. The witness did not identify changes in the resident's conduct that were signs of dementia or cognitive impairment. The Agency did not prove the charged violations by a preponderance of the evidence.
Tag 162 – Resident 35 – Alleged violation of Rule 58A-5.024(3): Rule 58A- 5.024(3)(g) requires facilities that will have unlicensed staff assist residents with self- administration of medications to maintain "a copy of written informed consent described in Rule 58A-5.0181, F.A.C. if such consent is not included in the resident's contract." Fla. Admin. Code R. 58A-5.0181(1)(e)1 requires written, informed consent for unlicensed staff to provide assistance administering medication. Cristal uses an informed consent form that calls for the resident to choose "will" or "will not" to indicate consent to unlicensed staff assisting with self-administration of medications. The form for Resident 35 was signed and dated August 22, 2018. Neither "will" nor "will not" was selected. When the surveyor asked the administrator about the form, he took the form to the resident who selected "will not." The administrator provided the surveyor a copy of the amended form. This was on December 4, 2018, the day of the survey.
The Agency described this matter in its proposed finding of fact 63. It did not seek a determination that this was a deficiency of any class, a tacit acknowledgement that Cristal timely cured the violation.
Tag 200 and Count XXVI – Detailed Emergency Environmental Control Plan
– Alleged violation of Rule 58A-5.036: This violation was also among the charges arising from the September visit. The alleged violation of Tag 200 is that Cristal did not have an emergency power supply as required by rule 58A-5.036(1).
At the time of the December visit, Cristal did not have the required emergency power supply installed. It did have two generators awaiting installation. But the Agency extension of the time period during which Cristal must establish an emergency power supply was still in effect. As of January 9, 2019, Cristal had one installed LP gas fueled generator. The evidence does not indicate that the generator's cooling capacity satisfied rule requirements. The generator was not connected to a fuel source. Live electrical wiring was exposed.
Clear and convincing evidence proves that Cristal was not in compliance with rule 58A-5.036(1) in January, 2019. But this was not the month for which the Agency charged a violation as presented in Agency proposed finding of fact 64. The Agency did not prove the charged violation.
Tag 816 and Count XXIII – Background Screening Compliance – Alleged violation of section 408.809(2): Agency proposed finding of fact 65 and Count XXIII assert that section 408.809(2), Florida Statutes, "requires that persons subject to criminal history background screening execute an attestation of compliance with the provisions of Chapter 435, Florida Statutes, as part of the background screening process." The Agency claims that the personnel records of Cristal staff F and G did not contain an attestation of compliance. Section 408.809(2)(c) is the part of the statute that the Agency argues Cristal violated which refers to an attestation of compliance. The relevant part of the statute establishes an alternative to the background screening through the Agency requirement permitting a provider to use proof of meeting the background screening requirements of five other agencies in lieu of meeting the requirements if the provider satisfies three requirements. The pertinent part says:
Until a specified agency is fully implemented in the clearinghouse created under s. 435.12, the agency may
accept as satisfying the requirements of this section proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under chapter 651, provided that:
The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in
s. 435.04 and this section;
The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and
Such proof is accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section using forms provided by the agency.
The statute does not require an affidavit or attestation of compliance for providers that do not rely upon the exception. Also, Cristal and the Agency participated in the Clearinghouse. In fact the Agency seeks to sanction Cristal for not reporting employment of a different individual to the Clearinghouse. (Tr.,Vol. I, pp. 133 and 134).
Cristal maintains that its Exhibit 11 includes an attestation by each employee. The exhibit contains attestations dated December 6, 2016. The record does not establish that the individuals who signed the attestations are Staff F and G.
The Agency did not prove that Staff F and G were relying upon the alternative means of satisfying background screening requirements. In fact, the testimony in Volume II of the Transcript, pages 486 to 498, cited by the Agency, does not mention this alleged violation. Testimony about the alleged violation appears at page 427 of Volume I and pages 471 and 472 of Volume III. It only says the records did not contain affidavits. The testimony says nothing about the circumstances in
which compliance attestations are required. Consequently, the Agency did not prove this charge.
Tag 77 – Administrator – Alleged violation of rule 58A-5.019(1) and section 429.176: The Agency charges three Tag 77 violations, one each for the July, September, and December survey periods. Proposed Agency findings of fact 32, 50, and 66 address these tags. For July 2017, the Agency asserts the violation amounts to a class III violation. This is also the charge of Count XXIV. For September 14, 2018, the Agency asserts the violation is a Class II violation. For December 5, 2018, the Agency asserts the violation is a Class III violation. This is also the charge of Count XXV. All three Tag 77 violations rely upon the tag violations alleged for each survey period. Count XXIV is the companion to the Tag 77 charge for the September survey period.
Section 429.176 states:
If, during the period for which a license is issued, the owner changes administrators, the owner must notify the agency of the change within 10 days and provide documentation within 90 days that the new administrator has completed the applicable core educational requirements under s. 429.52. A facility may not be operated for more than 120 consecutive days without an administrator who has completed the core educational requirements.
The Agency does not propose any findings of fact about changes in Cristal administrators. Consequently, this claim is deemed abandoned. This Recommended Order does not address the statute further.
Rule 58A-5.019(1) requires that:
[e]very facility must be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including management of all staff and the provision of appropriate care to all residents as required by chapters 408, Part II, 429, part I, F.S. and rule chapter 59A-35, F.A.C., and this rule chapter.
Each of the proposed findings asserting Tag 77 violations relies upon the tags from its survey period. Each proposes that:
[t]he totality of the deficient practices cited during the [survey period] reflect multiple failures in facility compliance with minimum standards including resident care, record keeping, physical plant and resident safety. The multiple failures demonstrate the administrator was not fulfilling the administrator's role in the management of staff and the provision of resident care.
For the survey period ending July 13, 2017, the proven failures upon which the Agency can rely for Tag 77 are four class III violations, asserted in Tags 8, 54, 93, and 162, and one class II violation asserted in Tag 25. The Tag 8 offenses are deficient health assessment forms for Residents 22, 7, and 4. The Tag 54 offenses are deficient MORs for three residents. The Tag 93 offense is a failure to comply with requirements for dating, posting, and conforming to menus. The Class III offense in Tag 162 was failure to maintain weight records required by rule. The Class II offense proven for Tag 25 was failure to notify a resident's health care provider when the patient was transferred to a hospital.
These offenses follow three Class III offenses from the May 10, 2017, survey period, two of which are the same as the July offenses. They include Tag 8 health assessment form deficiencies which should have triggered increased attention to fulfilling the requirement to ensure proper completion of the forms. Yet the violation persists in the July period. The May deficiencies also include a Tag 56 deficiency of failing to identify the patient who was to receive medication and a Tag 93 violation of failing to post the resident menu as required. The menu violation should have focused Cristal on complying with the relatively simple requirement to date, post, and maintain menus. Instead Cristal did not cure the problem, giving rise to another Tag 93 offense for the July 13, 2017 period.
These offenses demonstrate a failure to operate and manage Cristal to provide appropriate care to the residents. The clear and convincing evidence supports
the Agency determination that this failure is an indirect or potential risk to residents. It is properly classified as a Class III violation.
For the survey period ending September 14, 2017, the proven failures upon which the Agency can rely for Tag 77 are five Class III violations, one Class II violation, and two unclassified violations.
The unclassified violations both involve background screening recordkeeping. The Tag 813 deficiency is for failing to have background screening results in a personnel file, although the Clearinghouse reported a clear background screening for the staff member. The Tag 814 deficiency is for failing to report the contractual employment of the staff member to the Clearinghouse.
The Class IV violation, identified as Tag 167, is for failure to have a required contractual provision in Cristal's contract with Resident 18.
The first Class III violation is that once again Cristal has a Tag 8, health assessment form violation. Tag 54 is the second Class III violation. Once again Cristal has a Tag 54 violation involving deficient MORs. The third Class III violation is Tag 56. Cristal did not seek rule-required clarification of a "use as needed" prescription. The fourth Class III violation is a Tag 160 violation for failing to maintain an accurate admission and discharge log. The fifth Class III violation is a Tag 30 violation for permitting bed-rails, which are considered a restraint, without proper authorization or consent.
For the period ending September 14, 2018, Cristal continued its pattern of failure to comply with recordkeeping requirements. It also failed to comply with an important and elementary requirement to maintain an emergency supply of water. This is the Class II violation of Tag 93.
These violations reflect a sustained failure to manage the facility in a way that provides Cristal's residents appropriate care. These management failures create a direct risk to residents. The Agency properly classified the September Tag 77 as a Class II violation.
The proven offenses supporting the Tag 77 violation for the period ending December 5, 2018, are two Class III violations, one unclassified violation, and a
contractual violation. The Tag 30 violation is unclassified. It is for failure to process complaints about a cook's decision to quit as a grievance.
One Class III violation is yet another Tag 8 failure to obtain and maintain complete health assessments. The other Class III violation is another Tag 54 deficiency involving failure to keep accurate MORs.
The fine is for failure to follow the statutorily required process for refunding deposits and advance payments.
The repeating nature of the offenses involving health assessments and MORs create an indirect or potential risk to residents. The Agency proved the September Tag 77 and Count XXIV, in part. The Agency correctly classified this as a Class III violation.
CONCLUSIONS OF LAW
Sections 120.569 and 120.57(1), Florida Statutes, grant DOAH jurisdiction over the parties to and the subject matter of this proceeding.
This case involves the Agency's prosecution of an administrative complaint seeking to impose fines on Cristal and a proposed denial of re-licensure. The joinder of the two actions raises threshold legal questions about the burden and standard of proof to resolve.
The surveys in this case follow similar investigations resulting in the Recommended Order and Final Order in Ag'ncy for Health Care Admin., DOAH Case No. 17-2149 (Fla. DOAH June 29, 2018) modified in part, Case No. 2017004532 (Fla. AHCA August 14, 2018) (previously referred to as Cristal I). The Final Order in that case determined that the Agency had not proven that it completed the required review of Cristal Palace's operations to support a final determination on the renewal application. The Final Order also determined that the Agency had not proven many charges of the administrative complaint.
The surveys in this case that followed were not routine re-licensure inspections. They were part of an investigation committed to identifying violations
that could support imposition of penalties or the denial of renewal that the Agency failed to establish in its earlier action against Cristal. The surveys are not mere reports of matters neutrally observed and reported pursuant to a legal duty. They are the result of visits to Cristal for the express purpose of finding violations.
There is no question that the Agency must prove the facts upon which it bases revocation or other sanction by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). There is also no dispute that the Agency bears the burden of proving the violations relied upon to deny re- licensure. There is a dispute about the standard of proof.
The Agency maintains that it must only prove the violations relied upon for denial of re-licensure by a preponderance of the evidence. It reasons that denial of re- licensure is the same as determining an applicant does not meet the requirements for initial licensure and that it must only prove the grounds for denying re-licensure by a preponderance of the evidence. It cites to cases like Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977) to support this position. Cristal maintains that the Agency must also prove these violations by clear and convincing evidence. Several Recommended Orders provide a thorough and persuasive analysis of this issue.
Judge Nelson's Recommended Order in Agency for Health Care Administration v. Cristal Palace Resort PB, LLC, DOAH Case No. 17-2149 (Fla. DOAH June 29, 2018) modified in part, Case No. 2017004532 (Fla. AHCA August 14, 2018), beginning on page 87, presents a sound analysis of this issue. Judge McArthur's Recommended Order in Agency for Health Care Administration v. Rise and Shine Assisted Living Facility, LLC, Case No. 16-7558 (Fla. DOAH Nov. 9, 2017), modified in part, Case No. 2016000434 (Fla. AHCA Jan. 26, 2018), and Judge Johnston's Recommended Order in Avalon’s Assisted Living, LLC, d/b/a Avalon’s Assisted Living v. Agency for Health Care Administration, et al., Case No. 14-0610 (Fla. DOAH Jan. 21, 2015), modified in part, Case No. 2013012638 (Fla. AHCA Mar. 3, 2015), do also. The heart of the reasoning in Cristal I, Rise & Shine, and Avalon's is that denying re-licensure for violations, as opposed to for failing to demonstrate
fulfillment of licensing criteria, amounts to a sanction and that the sanction standard of clear and convincing evidence must apply. Also, here the Agency was not conducting a routine re-licensure inspection. It was committed to thoroughly inspecting Cristal for possible offenses.
The undersigned agrees with the analysis of the Recommended Orders in Cristal I, Rise & Shine, and Avalon's. The Agency must prove the violations upon which it relies to deny re-licensure by clear and convincing evidence. The Agency's Final Orders modified the conclusions of law about the standard of proof in re- licensure cases articulated in the Recommended Orders of Cristal I, Rise & Shine, and Avalon's. The Agency Final Orders theorized that application of clear and convincing standard does not comply with essential requirements of law.
The undersigned does not agree with the Agency's position for two reasons. The first is that, at the time of those Final Orders, the Agency's ability to reject or modify conclusions of law was limited to conclusions of law over which it had substantive jurisdiction. § 120.57(1)(l), Fla. Stat.; G.E.L. Corp. v. Dep't of Envtl. Prot., 875 So. 2d 1257, 1264 (Fla. 5th DCA 2004). The standards for burden of proof and standard of proof are not substantive matters over which the Agency has jurisdiction. The standards apply throughout all licensure and disciplinary matters.
The second reason is the 2018 adoption of Amendment Six to the Florida Constitution, now Article V, Section 21 of the Florida Constitution. The Agency's interpretation of the governing law, even law within its substantive jurisdiction, is no longer binding or entitled to deference. Kanter Real Estate, LLC v. Dep't of Envtl. Prot., 267 So. 3d 483 (Fla. 1st DCA 2019).
As a practical matter, the standard of proof does not affect the findings in this Order. This is because of the role that the prohibition of basing a finding of fact upon hearsay plays, the limited weight given much of the evidence, and the fact that many alleged violations involve record-keeping. Unless noted otherwise, when the evidence proved a violation, the evidence was clear and convincing. Unless noted otherwise, when the Agency failed to prove a violation it failed to prove it by a preponderance of the evidence.
The persuasiveness of evidence and the limits upon consideration of hearsay also played a role in the resolution of this matter. The earlier section of this Order titled Observations on Surveys, Notices of Deficiency, and Hearsay examines these issues. They are also addressed in some findings of fact.
Administrative Complaint
The Administrative Complaint charged 27 counts of statutory and rule violations. By its PRO, the Agency narrowed the charges of the counts. It also withdrew Count III at the final hearing. The Agency proved 11 counts. They are Counts IV, VII, XII, XIII, XV, XVI, XXI, XXII, XXIV, XXV, and XXVII. The Agency did not prove all of the factual assertions in each of the eleven. But it proved a violation of rule or statute for each of them.
None of the Complaint's counts sought revocation of Cristal's license. They sought only financial penalties. For this reason, although the Agency for the first time suggests revocation of Cristal's license in its PRO, the only penalties considered are those sought in the Administrative Complaint and proven at hearing. Each count is addressed briefly below. Each is addressed more fully, in light of the evidence, in the findings of fact. Determining whether alleged misconduct violates a statute or rule is a question of ultimate fact to be decided by the trier of fact. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995).
Section 429.19(2) sets the fines for the charged violations. The fines are: Class II - $1,000 to $10,000; Class III - $500 to $1,000; and Class IV - $100 to $200. The statute also requires a fine of $500 for violations of background screening requirements, regardless of class. Section 408.813(3) authorizes the Agency to impose a fine of no more than $500 for unclassified violations. Section 429.19(7) permits the Agency to "assess a survey fee, equal to the lesser of one half of the facility's biennial license and bed fee or $500," to cover investigation costs.
Section 429.19(3) lists five factors to consider in setting the fine amount. They are (1) gravity of the violation, (2) corrective actions, (3) previous violations,
(4) the violation's financial benefit to the facility, and (5) the facility's licensed
capacity. These factors have been considered in determining the recommended fine amount.
The Agency's PRO does not propose separate fines for each count. It only advocates, without explanation or citation, aggregate fines of $40,500 and assessment of survey fees of $1,000.
Count IV
Count IV alleged Cristal violated the requirements of rule 58A-5.0182(6)(g) for use of physical restraints by permitting a resident's use of bed rails which the resident could not raise or lower. Count IV also alleged Cristal violated rule 58A- 5.0182(6)(b) and by failing to process residents' complaint about a cook's decision to quit as a resident grievance. The Agency proved this violation. It also proved the violation was a Class III violation. A $500 fine is appropriate.
Count VII
Count VII alleged that Cristal did not comply with the requirements of section 429.24(3) when handling the refund of a $1,500 community fee paid by a departing resident. The Agency proved this violation. The statute requires that Cristal pay a fine of $4,500 and that the Agency remit $2,250 of the payment to the resident, the resident's heir, or the resident's other successors.
Count XII
Count XII charged Cristal with violating rule 58A-5.024(3)(g). The Agency proved this violation. The Agency's PRO did not request a fine for this violation.
Count XIII
Count XIII charged Cristal with violating rule 58A-5.0185(7) by not obtaining clarification of "prn" or "take as needed" instructions for medication. The Agency proved this violation and classified it as Class III. A $1,000.00 fine is appropriate.
Count XV
Count XV charged Cristal with not complying with the requirements for obtaining, maintaining, and clarifying resident health assessment forms imposed by rule 58A-5.0181(2) and section 429.26. The Agency proved this violation for several
residents. The Agency established the violation as a Class III violation. A fine of
$1,000 is appropriate.
Count XVI
Count XVI also charges violations of the requirements for obtaining, maintaining, and clarifying resident health assessment forms imposed by rule 58A- 5.0181(2) and section 429.26. The charges arise from the December survey following earlier surveys that revealed the same violation. The Agency proved this violation. The Agency established the violation as a Class III violation. A fine of $1,000 is appropriate.
Count XXI
Count XXI charged that Cristal did not maintain the emergency drinking water supply required by rule 58A-5.020(2). The Agency proved this charge and that the violation presented a direct risk to residents. It is a Class II violation. The appropriate fine is $6,000.
Count XXII
Count XXII charged Cristal with violating the requirement of rule 58A-5.024 to maintain an up-to-date admission and discharge log. The Agency proved the charges as involving some residents. This is a Class III violation. A fine of $500 is appropriate.
Count XXIV
Count XXIV charged that Cristal violated rule 58A-5.019(1) because its administrator did not provide the appropriate care required by law for residents. The Agency proved this charge and that it was a Class II violation. The appropriate fine is $7,000.
Count XXV
Count XXV charged that Cristal violated rule 58A-5.019(1) because its administrator did not provide the appropriate care required by law for residents. The Agency proved this charge and that it was a Class III violation. The appropriate fine is $1,000.
Count XXVII
Count XXVII charged Cristal with failing to add one individual, contracted to provide services at the facility, to the data base of its employees with the Clearinghouse. The Agency proved this violation of section 435.12. The statutorily required fine is $500.
Survey Fee
The record lacks proof of Cristal's biennial license and bed fee. This makes conducting the analysis required by section 429.19(7) to determine which is less
$500.00 or one-half of the facility's biennial license and bed fee not possible. Consequently the Agency should not impose a survey fee.
Notice of Intent to Deny
During an 18-month period, the Agency proved Cristal committed 25 violations of statutes and rules enacted to protect the health and safety of its residents. Cristal committed the majority of these violations when it knew it had committed violations in the past and was subject to follow-up surveys from the Agency. The violations identified during the 18-month survey period include three Class II violations, those that threatened the health, safety, and security of the residents. Eighteen violations were Class III violations that posed a threat to residents indirectly or potentially.
The Agency intends to deny re-licensure for Cristal because of the violations that this Order chronicles.
Section 429.14 sets forth the basis upon which the Agency may deny an ALF a license. One basis is three or more cited class II violations. §429.14(1)(e)2, Fla. Stat. The Agency proved Cristal committed three Class II violations. Each violation presented a direct threat to resident safety. One, the September Tag 77 violation for administration, establishes an over-arching deficiency in administration that by its nature poses a daily threat to the safety of the residents. It is based upon multiple failures to comply with the minimum standards for ALFs. A second, the Tag 30 violation involving Resident 30 and the failure to notify her health care provider that she required hospitalization, posed a direct threat to her safety. Without the
notification, the provider would not know to contact the hospital about her diagnosis and treatment and determine how it affected her medical condition or ongoing treatment. The third, the September Tag 93 violation for failure to comply with the requirement to have an emergency supply of water to supplement the required emergency food supplies, threatened the safety of all the residents. Loss of water supply, like loss of power, is an undeniable risk. Failure to maintain the required emergency supply meant all residents were at risk for not having this vital fluid.
These violations are grounds for denial.
Section 429.14(1)(e)3. allows the Agency to deny or revoke a license when a facility has five or more class III violations which it has not timely cured. Cristal had five uncured Class III violations in the July and September survey periods. These violations are grounds for denial.
Section 429.14(1)(k) provides for denial of license renewal for any act constituting a ground upon which an application may be denied. Section 408.815(1) establishes several "grounds that may be used by the agency for denying and revoking a license … ." The grounds include "[a] demonstrated pattern of deficient performance." § 408.815(1)(d), Fla. Stat. There is no case law construing this phrase. The Amended Recommended Order in Agency for Health Care Administration v. RSC Hidden Oaks of Fort Myers, DOAH Case No. 17-1589 (Fla. DOAH Sept. 26, 2017), adopted except for standard of proof holding, AHCA Case No. 2016006583 (Fla. AHCA Nov. 3, 2017), applying the dictionary definition of pattern to a reliable sample of acts of an institution, provides a cogent analysis of the phrase, which is applied here. See Sch. Bd. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla. 2009) (give language its plain meaning if the statute does not define it).
This standard finds support in the administrative fines and violations provisions of section 408.813. Section 408.813(2) addresses patterns of deficiencies as follows:
A patterned deficiency is a deficiency in which more than a very limited number of clients are affected, or more than a
very limited number of staff are involved, or the situation has occurred in several locations, or the same client or clients 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 provider. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the provider or represent systemic failure that has affected or has the potential to affect a large portion of the provider’s clients.
The violations proven in this matter are repetitive and pervasive. They reveal systemic failures with the potential to affect many of Cristal's residents. The violations proved in this matter also amount to a reliable sample of Cristal's acts showing inattention to, if not disregard for, the rules and statutes regulating the conduct of its business. The multiple deficiencies in completing MORs and the failures to remedy the noncompliance with the menu posting requirement are two examples of the pattern of deficient performance. The pattern of deficient performance proven in this matter is grounds for denying a license and hence grounds for denying renewal of Cristal's license.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order:
denying the application for license renewal of Cristal Palace Resort PB, LLC;
imposing administrative fines in the total amount of $23,000; and
requiring the Agency to remit $2,250 of Cristal's fine to Resident 4 or Resident 4's successors or heirs.
DONE AND ENTERED this 17th day of March, 2020, in Tallahassee, Leon County, Florida.
S
JOHN D. C. NEWTON, II
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the
Division of Administrative Hearings this 17th day of March, 2020.
COPIES FURNISHED:
Nicola Brown, Esquire
Agency for Health Care Administration Suite 330H
525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed)
John E. Terrel, Esquire John E. Terrel, P.A. Suite 11-116
1700 North Monroe Street Tallahassee, Florida 32303 (eServed)
Thomas J. Walsh, II, Esquire
Agency for Health Care Administration Suite 330H
525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed)
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Mary C. Mayhew, Secretary
Agency for Health Care Administration Mail Stop 1
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Stefan Grow, General Counsel
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Shena L. Grantham, Esquire
Agency for Health Care Administration Mail Stop 3, Room 3407B
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Thomas M. Hoeler, Esquire
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
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 |
|---|---|---|
| May 10, 2021 | Mandate | |
| May 10, 2021 | Mandate | |
| May 05, 2020 | Agency Final Order | |
| Mar. 17, 2020 | Recommended Order | Reliance on hearsay caused failure to prove many charges. ALF license non-renewal and fines b/c of repeated rule and statute violations. Standard of proof for non-renewal is clear & convincing. |
