vs. ) CASE NO. 82-1039
Respondent. )
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on December 1, 1982, in Daytona Beach, Florida. This Recommended Order is being entered following the receipt and review of the transcript, which was filed with the Division of Administrative Hearings on January 12, 1983. 1/
For Petitioner: Frederick J. Simpson, Esquire
For Respondent: Richard J. Osterndorf, Esquire
The issues presented here concern two administrative complaint letters filed by Petitioner against Respondent. Both complaint letters are dated March 26, 1982. The initial charges contain allegations concerning records keeping by Respondent related to patients and staff, and employee training, per Chapter 10A, Florida Administrative Code, and Chapter 400, Florida Statutes. The second prosecution letter alleges that one of the owners of the Respondent corporation acted as legal guardian for a resident in Respondent's facility, contrary to Chapter 400, Florida Statutes.
Petitioner presented two witnesses, Orey William Crippen, II, Adult Congregate Living Facility Licensing Office, State of Florida, Department of Health and Rehabilitative Services, District IV, and Charles H. Carter, Supervisor of Licensure and Certification, State of Florida, Department of Health and Rehabilitative Services, District IV. Petitioner offered ten exhibits which were admitted.
Respondent presented Lynn Costner, co-owner of Lynn's Care Center, Inc.
Respondent's four exhibits were admitted.
At all times pertinent to this case, Lynn and Ronny Costner were the owners of Lynn's Care Center, Inc., Respondent. In the relevant time sequence, that corporation operated through its co-owners. The business of Lynn's involved Adult Congregate Living Facilities, Phase II, by license issued by Petitioner in accordance with Chapter 400, Part II, Florida Statutes. One of the facilities was located at 1562 Garden Avenue, Holly Hill, Florida. The second facility was located at 1529 Ridge Avenue, Holly Hill, Florida.
On January 25, 1982, the Garden Avenue facility was inspected by Orey William Crippen, II, a facility inspector for Petitioner. The purpose of the inspection was to monitor Respondent's compliance with regulatory provisions set forth in Chapter 10A, Florida Administrative Code, which was enacted to effectuate the purposes of Chapter 400, Florida Statutes. Crippen's inspection revealed that required documentation to demonstrate that facility residents Schofield and Thomaszewski had been examined by a physician or nurse practitioner to certify acceptability of their health status to reside in the center was not available in the facility at the time of the inspection. The information that was necessary would have had to demonstrate medical examination of the residents within thirty days of admission to the facility. Schofield had been admitted into the facility on November 30, 1981, and Thomaszewski had been admitted to the facility on November 6, 1981. In Schofield's case, there was no date of X-ray or examination shown in his file. Required medical information on the patient Thomaszewski was not available at the facility.
Crippen also spoke with the co-owner Lynn Costner on January 25, 1982, to ascertain the whereabouts of the aforementioned medical information for the patients Schofield and Thomaszewski. This inquiry took place in the central office of Respondent at 73 West Granada Avenue, Ormond Beach, Florida. Although Schofield and Thomaszewski had been admitted to the hospital with medical examination information, this information was not available at the central office on the inspection date. Effective March 31, 1981, the necessary medical information was replaced by employees of the Respondent and the Schofield and Thomaszewski files were complete on the subject of the necessary documentation of health status. This replacement entailed the updating of material related to Thomaszewski, in that the medical examination information that accompanied him at the time of his admission to the facility was not current.
While at the facility on January 25, 1982, Crippen was unable to find requisite information to establish that two persons working in the facility on the inspection day were free from communicable diseases. Nor was he provided necessary documentation demonstrating a negative tuberculosis test, via chest X- ray or physician statement certifying no tuberculosis, or information dealing with these employees related to communicable diseases detectable by skin tests. The employees were Judy Russell and Rick Costner, son of the owners of the facility. Again, Crippen's conversation with Lynn Costner in her Ormond Beach office on the date of inspection did not lead to the production of the necessary information to demonstrate that Judy Russell and Rick Costner were free from communicable diseases. Judy Russell and Rick Costner were no longer employed by Respondent on March 31, 1982.
The facility did not have an employee on duty at the time of the January 25, 1982, inspection who was certified in an approved course in first-
aid, which would include cardiopulmonary resuscitation, training in bleeding and seizure control or training in antidotes for poisons. By March 31, 1982, certain employees of Respondent had achieved first-aid training.
Crippen's January 25, 1982, inspection did not uncover an employment application for Judy Russell or Rick Costner, either at the Garden Avenue facility or Respondent's office in Ormond Beach, Florida.
Finally, Crippen's January 25, 1982, inspection did not reveal a signed contract between the residents Bateman and Thomaszewski and the facility at Garden Avenue. Bateman had been admitted to the facility on November 26, 1981. Those contracts were not made available by Lynn Costner when Crippen spoke to her in the Respondent's Ormond Beach office on the date of the inspection. The patients had entered the facility with contracts. Mrs. Bateman's contract had been signed by her nephew and Thomaszewski's contract had been signed by a relative. The missing contract problem was subsequently rectified, effective March 31, 1982, through efforts of employees of Respondent.
On January 29, 1982, Charles H. Carter, Licensure and Certification Supervisor for District IV, wrote to Lynn and Ronny Costner, owners of Lynn's Care Center, and attached a deficiency statement document to that correspondence. A copy of the letter and deficiency statement may be found as Petitioner's Exhibit No. 1, admitted into evidence. The purpose of the letter and statement was to allow Respondent to offer corrections by written indication of steps to be taken to resolve problems discovered in the course of Crippen's inspection and the deficiency document contained a column for offering written corrections. It afforded the Respondent through February 15, 1982, to satisfy the problem related to employment applications for Judy Russell and Rick Costner. Respondent was allowed, until March 1, 1982, to correct all other violations alluded to in these findings, with the exception of the first-aid certification. On the subject of first-aid certification, Respondent was given through March 31, 1982, to verify certification. All corrections which were made related to allegations spoken to in the administrative complaint and reported in these facts date from March 31, 1982, and notification of those corrections in writing was received by Petitioner on April 5, 1982. The statement of corrections was reported on the deficiencies and corrections form mailed on January 29, 1982. Corrections were not verified by Petitioner. See Respondent's Exhibit No. 4.
The corrections were made subsequent to an exit conference on January 25, 1982, held between Crippen and Lynn Costner in Respondent's Ormond Beach Office in which Costner was made aware of the related problems. With the exception of the matter related to first-aid, the written notification of corrections was not timely.
By the letter of transmittal of the statement of deficiencies, Carter had advised Respondent that the failure to submit the plan of corrections within the time specified would lead to a finding of noncompliance by Respondent and the possibility of administrative fine.
On March 5, 1982, not having heard from Respondent on the topic of the March 1, 1982, deadline for certain corrections, Carter again wrote the Costners, as owners of Lynn's Care Center at Garden Avenue, requesting that the response by statement of corrections be made no later than March 18, 1982. See Petitioner's Exhibit No. 2, which is a copy of the Carter correspondence.
There being no reply to the March 5, 1982 correspondence, an administrative complaint letter was forwarded to Respondent, in the person of the Costners, Lynn's Care Center, at 1562 Garden Avenue, Holly Hill, Florida. This item was sent certified mail, return receipt requested. It set forth violations related to the deficiencies which have been discussed in this Recommended Order. The complaint was received by an employee of Respondent on April 2, 1982. See Petitioner's Exhibit No. 3
Respondent disputed the factual allegations in the complaint and a Subsection 120.57(1), Florida Statutes, hearing was conducted to resolve the dispute.
On March 26, 1982, a second administrative complaint letter was served on the Costners reference a resident in their facility at 1529 Ridge Avenue, Holly Hill, Florida. That complaint was received on April 2, 1982, as shown by the certified mail return receipt request form. The administrative complaint and certified mail return receipt docket may be found as Petitioner's Exhibit No. 10, admitted into evidence, a copy of the complaint and receipt item. The complaint letter charged that Ronny Costner had acted as the legal guardian of Margaret Wells, a resident in the Ridge Avenue facility, and in doing so violated Chapter 400, Florida Statutes, and Chapter 10A-5, Florida Administrative Code.
On January 19, 1982, letters of guardianship of the property of Margaret Wells had been presented to Ronny Costner, through action in the Circuit Court in and for Volusia County, Florida. See Petitioner's Exhibit No. 4, a copy of the order issuing letters of guardianship. On March 8, 1982, Charles Carter wrote to inquire of Ronny Costner on the subject of whether Costner was indeed the legal guardian of the property and suggested the impropriety of such guardianship. See Petitioner's Exhibit No. 9, which is a copy of the Carter correspondence.
Resident Wells had been admitted to the Ridge Avenue facility upon referral by Dr. John Hall, D.O. At the time of admission, the Costners were unable to find family to serve as Wells' guardian. Wells was suffering from Organic Brain Syndrome. Following examination by two physicians and with the assistance of Patty Butcka, an Adult Caseworker with Petitioner, and her husband, serving as legal counsel, petition was made leading to the guardianship appointment of Ronny Costner for the benefit of Wells. During the time that he served as legal guardian he received no compensation. The guardianship of Wells was in view of the fact that no close relatives resided in the area where Wells was living. At the guardianship hearing no family member appeared or objected to the appointment of Costner as guardian.
Following receipt of the March 8, 1982, letter from Carter, Costner employed counsel and petitioned the court to remove him as guardian for Margaret Wells, in view of the provision of Chapter 400, Florida Statutes, which would not allow Costner to act as guardian of a resident in his Adult Congregate Living Facility. An order was entered removing Costner as Wells' guardian and Ronny Costner no longer served in that capacity at the time of the final hearing in this cause.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes.
In the complaint letter related to the January 25, 1982, inspection, Respondent is accused of having failed to make corrections of the noted deficiencies, in violation of Subsection 400.419(1)(d), Florida Statutes, in that the facility failed to document in writing the steps taken to correct violations cited. Further it is alleged that this failure runs contrary to Rule 10A-5.15(5) and (6), Florida Administrative Code, by failure of Respondent to make timely corrections. The deficiencies alluded to are those set forth in the numbered paragraphs 4, 6, 7, 8 and 9, infra. It is further contended that the Petitioner is entitled to assess a fine in the amount of $300 in accordance with Subsection 400.419(3)(c), Florida Statutes, for Respondent's oversight.
Respondent failed to make a timely response by written plan of corrections, with the exception of paragraph 7, dealing with verification of the first-aid certificates held by employees at the licensed facility, due March 31, 1982. Other than that instance, all written responses to allegations set forth in numbered paragraphs 4, 6, 8 and 9 of the complaint letter were not timely. Those responses were offered on March 31, 1982, and the deadline was February 14, 1982, for paragraph 8, and March 1, 1982, for paragraphs 4, 6 and 9. Nonetheless, failure to provide timely written documentation of actions taken to correct the problems is a subject which is properly considered in examining the substantive allegations set forth in paragraphs 4, 6, 7, 8 and 9. According to Subsection 400.419(3)(c), Florida Statutes, and the statement of deficiencies related to these paragraphs, timely corrections of the deficiencies would forestall this imposition of a fine. Conversely, failure to make timely correction would subject the Respondent to a fine for each individual deficiency/violation. Petitioner may not impose a fine for the individual violations not timely corrected and a fine in the aggregate for failure to offer timely written documentation of corrections made. A fine in the aggregate, pursuant to Subsection 400.419(3)(c), Florida Statutes, is not allowed, nor can violation in the aggregate of Subsection 400.419(1)(d), Florida Statutes, and Rule 10A-5.15(5) and (6), Florida Administrative Code, be found.
Related to paragraph 4 in the charge document, Subsection 400.426(1), Florida Statutes, requires a physician or nurse practitioner to examine residents within thirty days of admission to certify that that resident is in an acceptable health status to allow him to reside in the facility. Rule 10A- 5.18(1)(e), Florida Administrative Code, specifies the information to be gained through the physical examination. Compliance with Subsection 400.426(1), Florida Statutes, and Rule 10A-5.18(1)(e), Florida Administrative Code, was not timely accomplished in the admission of Thomaszewski, nor were corrections timely made for deficiencies related to those provisions in the records of Thomaszewski and Schofield.
Petitioner seeks to impose a fine in the amount of $300 for what it perceives to be Class III violation of Subsection 400.419(3)(c), Florida Statutes. The conditions related to the two patients inherently threatened residents in the facility in their physical or emotional health, safety or security, and a Class III fine is proper.
Related to paragraph 6, Rules 10A-5.24(1)(b)2. and 10A-5.19(5)(g), Florida Administrative Code, require Respondent to ensure that employees within its facility on January 25, 1982, be free of communicable diseases and that evidence be provided that the employees do not have tuberculosis or other communicable diseases. These provisions were violated in that the information was not available related to the employees Judy Russell and Rick Costner and was not timely corrected. For this circumstance, Petitioner would impose a fine
pursuant to Subsection 400.419(3)(c), Florida Statutes, in the amount of $300. This violation is one which inherently threatens the physical or emotional health, safety and security of facility residents and a Class III fine is proper.
As alleged in paragraph 7, on January 25, 1982, Respondent had failed to assure that at least one staff member was on duty in the Garden Avenue facility who had certification in an approved first-aid course to include cardiopulmonary resuscitation, training about bleeding and seizure control and antidotes for poisons. This violated Rule 10A-5.19(5)(f) Florida Administrative Code, but Respondent made timely written correction of the deficiency which Petitioner did not verify. Therefore, Petitioner may not levy a fine in the amount of $100 for a violation of Subsection 400.419(4), Florida Statutes.
As alleged in paragraph 8, on January 25, 1982, there were no employment applications on file for the employees Judy Russell and Rick Costner. This was contrary to Rule 10A-5.24(1)(b)1., Florida Administrative Code, and Respondent failed to timely correct the deficiencies. Petitioner seeks a fine in the amount of $100 for this violation characterized as a nonclassified violation. Subsection 400.419(4), Florida Statutes, allows the imposition of a fine not to exceed $500, and a fine would be proper in this situation.
As alleged in numbered paragraph 9, on January 25, 1982, the residents Bateman and Thomaszewski did not have contracts in their files detailing the arrangement for services to be provided by Respondent to those residents. This is contrary to Rule 10A-5.24(1)(a)3., Florida Administrative Code, and Subsection 400.424(1) and (2), Florida Statutes, and Respondent failed to make timely correction of the problem. Petitioner characterizes this as a nonclassified violation and seeks to impose a fine of $100. Subsection 400.419(4), Florida Statutes, allows the imposition of a fine of not more than
$500 and a fine would be proper in this situation.
The second complaint letter dealing with the guardianship matter seeks to impose an administrative fine of $500.
Subsections 400.427(1), (2), and (3), Florida Statutes, indicate that the admission of a resident to a facility such as that of the Respondent does not grant to the administration or others the right to dispose of property; does not allow for the owner to act as a guardian, and provides for the safe keeping of personal effects. Contrary to Subsections 400.427(1) and (2), Florida Statutes, Ronny Costner, owner of the facility, managed the property of Margaret Wells, resident in the Ridge Avenue facility and acted as her legal guardian. The aforementioned fine would be imposed by the Petitioner for this violation which Petitioner characterizes as not being classified. Subsection 400.419(4), Florida Statutes, allows the imposition of a fine in the amount of $500 and a fine would be proper in this matter.
Upon a full consideration of the facts found and conclusions of law reached, it is
That a final order be entered dismissing the allegation of failure to make timely written reply to the statement of deficiencies in the aggregate set out in the January 29, 1982, letter with attachments; imposing a fine in the amount of $100 for the failure of Respondent to have proper medical documentation for residents Thomaszewski and Schofield; imposing a fine in the amount of $300 for
the failure of Respondent to substantiate that employees Judy Russell and Rick Costner were free from communicable diseases; dismissing the allegation for failure of Respondent to have available an employee who could administer first- aid; imposing a fine in the amount of $100 for the failure to have employment applications on file for the employees Judy Russell and Rick Costner; imposing a fine in the amount of $100 for the failure to have a contract on file for the residents Bateman and Thomaszewski, and imposing a fine in the amount of $100 for violation of the prohibition against Ronny Costner having control over Margaret Wells' property and serving as her guardian.
Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983.
1/ The Respondent, in the person of counsel, has offered a proposed recommended order. This proposal has been reviewed prior to the entry of the Recommended Order. To the extent that the proposal is consistent with the Recommended Order, it has been utilized. To the extent that the proposal is not consistent with the Recommended Order, it is rejected.
Frederick J. Simpson, Esquire Department of HRS
Richard J. Osterndorf, Esquire
