STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1615

) 80-1726

FOUR FREEDOMS MANOR, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was held on the above matters by H. E. Smithers on November 12, 1980, at Fort Lauderdale, Florida. The Petitioner was represented by Martha F. Barrera; the Respondent appeared through its Administrator, George A. Hernando, who testified as a witness.

These cases commenced when the Department of Health and Rehabilitative Services (Petitioner or HRS) performed surveys of the nursing home facilities of Four Freedoms Manor (Respondent). Case No. 80-1615 (Complaint dated July 23, 1980) alleges that (1) in both the January 3 and June 6, 1980 surveys pots were dirty, and garbage cans or dumpsters were dirty and open to flies; and (2) in the June 6, 1980 resurvey there were still no written menus for certain calorie diets, meal patterns were not always written for calculated diets, and some of these written did not follow the dietician's approved guideline. Proposed penalties were $500 for each of the two violations. Other sanitary discrepancies were recited at the caring, however, they cannot be considered since they were not alleged in the complaint. Case No. 80-1726 (Complaint dated July 16, 1980) alleges that the food of ten patients receiving restricted diets were deficient on January 3, 1980, for which a $1,000 civil penalty should be imposed. The issue is whether or not the above civil penalties should be imposed for the alleged violations.

The Petitioner presented the testimony of two members of the involved survey team and its Assistant Area Supervisor, who had reviewed the amount of suggested fines; Petitioner's Exhibits P-1 through 4 were received in evidence. Respondent's Administrator and Consulting Dietician testified, and its Exhibit R-1 is part of the record.

Petitioner's proposed findings of act not included in this Recommended Order are specifically rejected.

FINDINGS OF FACT

1. Sanitary Conditions

   
   

   1. Respondent's Administrator admitted that the garbage cans being used on January 3, 1980, were not in good condition or covered but thought the problem

      had been corrected with the use of dumpsters. Open dumpster lids occur from improper use by residents in the area.

      
      

   2. Respondent's Administrator also agreed that at the time of both surveys greasy pots and pans were on the shelf as though clean and ready for use. The Respondent generally discards pots/pans as they become unusable but had delayed replacement too long at the time of these two surveys.

      
      

2. Dietary Deficiencies

1. Ten Diet Deficiencies on January 3, 1980

   
   

1. Petitioner reviewed written diets, reviewed serving procedures and observed the noon meal. From these observations and calculations, Petitioner's Consulting Dietician concluded that ten patients on restricted diets received insufficient calories, carbohydrates, protein and fat on January 3, 1980. However, these calculations did not include the food and/or drinks received in the evening snack.

   
   

2. The alleged deficiencies above were not discussed with Respondent's Consulting Dietician, who was not present during the January 3, 1980 survey, nor was Respondent advised of the purported problem until receiving the July 16, 1980 Complaint.

   
   

3. At the time of the January 3, 1980 survey, Petitioner requested all dietary information but did not specifically inquire about evening snacks. On the other hand, Respondent did not furnish Petitioner with the "brown bags" used for evening snacks; the bags had written diet instructions on them.

   
   

4. Respondent has changed its procedures so that daily diet calculations are on the same form.

   
   

   B. Written Menus, Meal Plans, Etc. - Both Surveys

   
   

5. Respondent admitted it does not use all the diet forms and procedures that could be used or as suggested by Petitioner, and that there could be some discrepancies. However, Respondent contends its simple system provides the required information and control. For example, a diabetic diet calling for milk means skim milk, meat means lean meat, and one-half fat requirement is met by use of medium fat meat.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 400.23(4)(b) and (c), Florida Statutes (1979) and (1980), provides that "A citation for a class II (same for class III) deficiency shall specify the time within which the deficiency is required to be corrected. If a class II (same for class III) deficiency is corrected within the time specified, no civil penalty shall be imposed, unless it is a repeated offense." See also Rule 10D-29.54(2), Florida Administrative Code.

   
   

7. The first written notice of deficiencies of the January 3, 1980 survey was the Complaint dated July 16, 1980; this was after the resurvey on June 6, 1980. Complaints, such as these, that result in a hearing request do not follow the procedure contemplated by the above law. Further, the short interval between the July 16th and July 23rd Complaints, and without a specific charge of "repeated offenses," cannot be considered as proper notification of that charge.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaints of the Department of Health

and Rehabilitative Services be dismissed.

DONE and RECOMMENDED this 19th day of January, 1981, in Tallahassee, Leon County, Florida.

H. E. SMITHERS Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the clerk of the Division of Administrative Hearings this 19th day of January, 1981.

COPIES FURNISHED:

Leonard Helfand, Esquire Department of HRS

Room 1040, Ruth Rhode Building

401 NW Second Avenue Miami, Florida 33128

Jorge A. Hernando, Administrator Four Freedoms Manor

42 Collins Avenue

Miami Beach, Florida 33139

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Peitioner,

vs. CASE NO. 80-1615

80-1726

FOUR FREEDOMS MANOR,

Respondent.

/

FINAL ORDER

The Department of Health and Rehabilitative Services, having considered the Recommended Order, the Exceptions to Recommended Order, and being otherwise well advised in the premises, hereby adopts the findings of fact of the attached Recommended Order entered in this cause by Hearing Officer H. E. Smithers, dated January 19, 1981, as a part of this Final Order but rejects the conclusions of law and substitutes the following conclusions of law:

Conclusions of Law

1. Each Administrative Complaint issued in this proceeding listed Sections

   400.102 and 400.121, Fla. Stat. as a basis for the imposition of the fines. A fine may be levied pursuant to 400.121 in lieu of and notwithstanding the provisions of Section 400.23, Fla. Stat. Also, Section 400.102, Fla. Stat. authorizes the use of Section 400.121, Fla. Stat. when there has been a violation of the provisions of Chapter 400, Fla. Stat. or the rules promulgated thereunder, F.A.C. Chapter 10D-29. Therefore, the procedure used for the imposition of a fine in this proceeding was proper.

   
   

2. The findings of fact reveal that unsanitary conditions existed in Respondent's nursing home in the nature of greasy pots and pans being placed on the shelf as clean and uncovered garbage cans and open dumpsters with flies. This constitutes a violation of Sections 400.141 and 400.102, Fla. Stat. and F.A.C. Rules 10D-29.44(7), and 10D-13.27(7) and (8) and 10D-13.26(1)(o), and justifies the imposition of a fine pursuant to Section 400.121, Fla. Stat. However, the amount of this fine is reduced from $500 to $100.

   
   

3. The findings of fact reveal that proper diet forms and procedures in the nature of written menus and meal patterns and adherence to the dietician's approved guidelines were not being followed. This constitutes a violation of Sections 400.141 and 400.102, Fla. Stat. and F.A.C. Rule 10D-29.44(6) and justifies the imposition of fine pursuant to Section 400.121, Fla. Stat. The

   $500 fine administered in this case was proper.

   
   

4. The findings of fact reveal that ten patients on therapeutic diets were receiving deficient diets. This constitutes a violation of Sections 400.141 and 490.102, Fla. Stat. and F.A.C. Rule 10D-29.44(6) and justifies the imposition of a fine pursuant to Section 400.121, Fla. Stat. However, the amount of the fine is reduced from $1,000 to $500. It is therefore

ORDERED that a fine of $1,100 is hereby imposed against Respondent, Four Freedoms Manor, and Respondent shall forthwith remit from $1,100 to the Department.

DONE and ORDERED this 18th day of February, 1981, in Tallahassee, Florida.

ALVIN J. TAYLOR

Secretary

COPIES FURNISHED:

Jorge A. Hernando, Administrator Four Freedoms Manor

42 Collins Avenue

Miami Beach, Florida 33139

Leonard Helfand, Esquire District XI Legal Counsel Department of HRS

401 N.W. 2nd Avenue Miami, Florida 33128

H. E. Smithers, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Ms. Eleanor Beamer Director

Office of Licensure and Certification Department of HRS

Daniel Building

111 Coastline Drive, East Jacksonville, Florida 32231

Docket for Case No: 80-001615

Orders for Case No: 80-001615