STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAZARO HOME, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-2468

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in the above case by the Division of Administrative Hearings before its duly designated Hearing Officer, DONALD R. ALEXANDER, on November 12, 1981, in Miami, Florida.

APPEARANCES

For Petitioner: Juan Manuel Altonaga, Esquire

1800 Southwest First Street, Suite 312

Miami, Florida 33135

For Respondent: Martha F. Barrera, Esquire

1320 South Dixie Highway, 11th Floor Coral Gables, Florida 33146

BACKGROUND

By application filed in July, 1981, Petitioner, Lazaro Home, Inc., sought licensure as an Adult Congregate Living Facility at 2290 West 68th Street, Hialeah, Florida. A pre-licensing inspection conducted by Respondent, Department of Health and Rehabilitative Services, on August 6, 1981, disclosed that Petitioner's facility did not comply with minimum standards set forth in Chapter 10A-5, Florida Administrative Code. A subsequent inspection by Respondent on August 20, 1981, revealed that six deficiencies requiring corrective action remained. By letter dated September 2, 1981, Respondent advised Petitioner that its application was denied.

Petitioner disputed the allegations set forth in the letter of denial and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial of its application. The matter was referred by Respondent to the Division of Administrative Hearings on October 2, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated October 16, 1981, the final hearing was scheduled for November 12, 1981, in Miami, Florida.

At the final hearing Petitioner, through an interpreter, presented the testimony of Adelpho Ramos, the owner of the facility and offered Petitioner's Exhibit B which was received into evidence. Respondent presented the testimony of Joseph Dooley, District Program Specialist for Licensing, and Ronald Robinson, Director of Follow-Up and After-Care Services at the Northwest Dade Community Mental Health Association.

The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, they waived their right to do so.

The issue herein is whether Petitioner's application for licensure as an Adult Congregate Living Facility should be granted.

Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

1. Petitioner, Lazaro Home, Inc., filed an application in July, 1981, with Respondent, Department of Health and Rehabilitative Services, for licensure to operate an Adult Congregate Living Facility at 2290 West 68th Street, Hialeah, Florida.

   
   

2. Petitioner provides boarding home care for the Cuban refugee population and patients released from the Florida State Hospital. Its present census is seven residents. All patients are physically healthy but suffer from emotional disturbances. They do not require higher level care.

   
   

3. After receiving the application Respondent conducted an inspection to determine whether the facility was in compliance with Department standards. Finding it was not, Respondent advised Petitioner by letter that certain deficiencies required corrective action. A reinspection on August 20, 1981, disclosed that uncorrected deficiencies still existed, and because of this, Petitioner's application was being denied. The denial precipitated the instant proceeding.

   
   

4. Of the six deficiencies recited in its letter of September 2, 1981, Respondent acknowledged that two [items (b) (e)] had been corrected by the time of the hearing. 1/ The requirement that at least one staff member on duty be certified in an approved first aid course, including cardiopulmonary resuscitation, will be fulfilled when two staff members complete such training to begin on November 19, 1981. The remaining deficiencies relate to the medical records of the residents. These are completed by private physicians who volunteer to examine and treat the patients at the Northwest Dade Community Mental Health Association. In certain cases the patient - assessments are incomplete, medication orders cannot be verified and other data is either incorrect or missing. These deficiencies are not entirely the fault of applicant, for it is difficult and time-consuming to get the private physicians to make the necessary corrections. Petitioner agreed to correct the problems within a reasonable period of time, and after this is accomplished, Respondent agreed it will be entitled to licensure.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

6. Subsection 400.407(1), Florida Statutes (Supp. 1980), provides that:

   
   

   1. It is unlawful to operate or maintain a facility without first obtaining from the

      department a license authorizing such operation:

      
      

7. Section 400.414, Florida Statutes (Supp. 1980) provides in part:

   
   

   1. The department may deny . . .

      a license . . . in the manner provided in chapter 120.

   2. Any of the following actions by a facility or its employees shall be grounds for action by the department against a facility:

      * * *

      (c) Violation of the provisions of this act or of any minimum standards or rules promulgated hereunder.

      
      

8. The record discloses that applicant is presently in violation of certain "minimum standards or rules promulgated" by the Department. Subsection

400.414 (2)(c), supra. Specifically, the medical records of certain residents do not contain a description of the residents' overall condition (Rule 10A-5.18 (1)(e), Florida Administrative Code), or a statement that the person's needs can be met in a home for adults which is not a medical facility (Rule 10A- 5.18(1)(e)5e, Florida Administrative Code). Further, the physician's written orders for medication are incomplete on certain records. Rule 10A-5.18(6)(c), Florida Administrative Code. 2/ The remaining deficiencies have either been satisfied or will be corrected after the completion of a first aid course by two of Petitioner's employees.

Respondent has agreed that upon completion of the first aid course, including cardiopulmonary resuscitation, and the correcting of the residents' medical records, Petitioner will be entitled to licensure. Given the difficulty in coordinating this paperwork between the Mental Health Association and private physicians, a 30-day period from date of this Recommended Order is a reasonable time in which to comply with this requirement, particularly since only three or four patient records are involved. Otherwise, the license should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Lazaro Home, Inc., for licensure as an

Adult Congregate Living Facility be APPROVED, provided the appropriate first aid course, including cardiopulmonary resuscitation, is completed by two of its employees, and its medical records are revised to meet the standards prescribed in Rule 10A-5.18, Florida Administrative Code. Such standards should be met no later than thirty days after the date of this Recommended Order; otherwise the application should be denied.

RECOMMENDED this 19th day of November, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1981.

ENDNOTES

1/ These included the preparation and posting of a written procedure to be followed for general emergency care during a disaster or hurricane, and the preparation of duty assignments for the food service staff.

2/ Although the letter of denial referred to Rule 10A-5.18(6)(a) 4a, Florida Administrative Code, this is assumed to be a typographical error and that the Department intended to rely upon the rule cited in the main text of this Order since the latter rule conforms with the evidence of record.

COPIES FURNISHED:

Manuel Altonaga, Esquire

1800 Southwest First Street, Suite 312

Miami, Florida 33135

Martha F. Barrera, Esquire

1320 South Dixie Highway, 11th Floor Coral Gables, Florida 33146

Docket for Case No: 81-002468

Orders for Case No: 81-002468