STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2805

) TARSHA'S LITTLE PEOPLE, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on May 24 and 25, 1983 in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Amelia M. Park, Esquire and

Janice Sortor, Esquire District Legal Counsel Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614

For Respondent: Kaydell O. Wright, Esquire

518 North Tampa Tampa, Florida 33601

BACKGROUND

These proceedings began on September 29, 1982 when the Petitioner Department of Health and Rehabilitative Services (HRS) sent notice of the Department's intent to revoke the license of Respondent Tarsha's Little People, Inc. (TLP) to operate a group home for clients of the Department's Developmental Services Program. By letter dated October 4, 1982 Respondent requested a formal hearing on the allegations contained in the notice. On October 13, 1982 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. That hearing was initially scheduled for February 17 and 18, 1983, but the parties jointly requested a continuance. The hearing was rescheduled for May 24 and 25, 1983.

On April 25, 1983 Petitioner filed an Amended Administrative Complaint on which the issues were tried here.

Immediately prior to the final hearing the parties filed a Prehearing Stipulation in which TLP admitted receiving approximately $3,500 in child support payments on behalf of client Valentine H. The receipt of the money was

not reported to Petitioner. TLP disputes the Department's contention that such a report was necessary, but to resolve the matter TLP has agreed to repay $3,500 to the Department in $100 monthly payments.

The parties further agreed in the Stipulation that the allegations of paragraphs 1(a) through 1(f) of the Amended Administrative Complaint are withdrawn as they relate to TLP's failure to make quarterly client reports to the Department. The allegations of paragraph 4(b) were also withdrawn according to the Stipulation.

At the final hearing Petitioner presented the testimony of witnesses and offered exhibits 1-7, 9-20, 22, 23, 26, 27, 28, 32, 33, 34, 35 and 36, which except for exhibit 17, were received into evidence. Respondent presented the testimony of witnesses and offered exhibits 1-9, which except for exhibit 6, were received into evidence. The 1980 data on Petitioner's Exhibit 34 were not received and the receipt of Respondent's Exhibit 4 is limited to show only that Respondent filed a response to certain alleged discrepancies in medication records.

Subsequent to the final hearing the parties submitted Proposed Recommended Orders containing proposed findings of fact which have been given careful consideration here. To the extent that the proposed findings are not included in this Order, they are specifically rejected as being either not supported by the weight of credible admissible evidence, or as being irrelevant to the issues determined here. 1/

FINDINGS OF FACT

1. Tarsha's Little People, Inc. operates a group home facility for young developmentally disabled people who are moderately to profoundly retarded. The facility located in Tampa, Florida, is licensed by the Department of Health and Rehabilitative Services.

   
   

2. In addition to being licensed by HRS, TLP also holds a contract with the Department to provide services to HRS clients for a fee.

   
   

3. TLP currently provides residential and developmental services to 13 HRS clients. They live in the group homes, attend local schools as appropriate, and receive additional training in daily living skills at TLP. Because of their retardation the clients at TLP require constant supervision to prevent them from harming each other or themselves. Without assistance many of them cannot take care of simple daily needs such as eating, bathing or dressing.

   
   

   Medication Logs

   
   

4. Many of the clients at TLP have potent psychotropic medication such as Haldol and Mellaril prescribed for them. These are powerful mood altering drugs which have serious side-effects.

   
   

5. Proper monitoring of dosage administration is vital to the therapeutic use of these drugs as the daily dosage is usually increased until the patient's behavior which is being modified changes. Without adequate administration records the physician prescribing the medication will have distorted information on which to rely when determining the proper dosage necessary to achieve a therapeutic level.

6. As part of its residential service TLP administers medication to its residents. As soon as a dose is given the administration should be entered on a medication log. In numerous instances entries were not made by the TLP staff at the time medicine was given or should have been given. This failure to properly record medication has resulted in inaccurate medication logs with serious discrepancies in the amount of drugs administered to TLP residents.

   
   

7. The medication logs at TLP show more medication having been dispensed to each client than was sold for that client by Eagle Drug Company, the sole source of medicine for TLP residents. As an example, for client Michael C. TLP records show 374 one milligram doses of Haldol having been administered, but Eagle Drug Company had filled prescriptions for only 300 one milligram pills for Michael C. Similar errors appear in the records of four other clients.

   
   

8. It is reasonable to infer that while the inaccurate medication logs show an adequate administration of medicine to TLP clients, the clients have not actually received the medicine in the amounts prescribed for them. The failure to properly record medication posed a substantial danger to the health and well- being of the five clients whole records were introduced here.

   
   

   Eating Supervision and Tooth Brushing

   
   

9. During July 1982 an HRS retardation program supervisor visited TLP for an inspection. She observed three deficiencies at the home. At the evening meal the residents were fed, among other foods, large pieces of ham, but each resident was provided only a spoon with which to eat. They were unable to cut the ham into chewable pieces and therefore had to pick the meat up with their hands and gnaw bite-size pieces off. This procedure presented a danger of choking for the residents and failed to provide them with the opportunity to learn the proper use of knives and forks.

   
   

10. After dinner the residents customarily brushed their teeth. During the time the HRS retardation program supervisor was there, after each resident brushed his teeth his brush was taken back by a TLP staff member and placed in a single glass of water for all the residents. One client had gums which bled profusely yet his brush was placed in the common glass. The water colored red from his blood. After brushing each client was given a sip of water from another common glass of water.

    
    

11. During the residents' bath time, two staff members accompanied two residents at a time to the bathroom while only one staff member remained to supervise the balance of the residents in the home. This is totally inadequate supervision for 13 or 14 retarded clients. If the HRS program supervisor had not been scheduled to visit TLP that evening the evidence indicates that only one staff member would have been scheduled for duty at bath time. There would have therefore been no one available to supervise the residents while that one staff person was giving baths.

    
    

12. There is no direct evidence that the use of a common glass of water for drinking and toothbrushes was a regular practice or was an isolated incident at TLP. The scheduling of inadequate staff for client supervision at bath time was however shown to be a regular practice.

    
    

    Brian B.'s Helmet

    
    

13. Brian B., one of TLP's clients, suffered from poor muscular coordination. He frequently fell. He wore a helmet to protect his head when he

    did fall. In January 1982 a chin strip which held on his helmet broke. Brian

    B. was prone to chew on the strap and thereby weakened it until it failed. On May 26, 1982 a Department staff member became aware that Brian had fallen and injured his head. As a result of his injuries TLP ordered a new chin strap for his helmet but the strap did not arrive until two and one-half months later. In August 1982 immediately before the new strap arrived Brian again fell and caused a gash in his head which required hospital treatment.

    
    

14. It was only after considerable prodding from HRS that the new strap was obtained. The new strap did not however alleviate the problem with the helmet as later that year Brian B. was observed wearing the helmet with the strap knotted rather than properly buckled under his chin. He was removed from TLP. When the helmet was taken off his hair was matted and had a strong stench from not being washed. The failure of TLP to promptly remedy the problem of Brian B.'s helmet strap needlessly exposed him the risk of serious head injury.

    
    

    Kevin B.'s French Leave

    
    

15. During his residency at TLP between May 1981 and September 1982 Kevin

    B. escaped from the facility at least five times. On the occasion of his last escape on September 6, 1982 he was picked up by the Tampa Police approximately

    19 blocks from the facility. Despite requests from HRS that a behavior modification program to eliminate his propensity to escape be implemented, no effective program was devised by TLP. The facility's efforts to restrain his wander lust by installing dead bolts and bells on his door were easily frustrated by his escaping through the room window. Because of his retarded mental state it was dangerous for Kevin B. to be loose by himself in the community.

    
    

16. After his last escape from TLP he was placed in another facility which was later able to sufficiently restrain him and modify his behavior, but not before a few more escape attempts.

    
    

    Loose Floor Covering

    
    

17. On June 22, 1982 TLP was notified by the Department that the floor covering in parts of the facility was not safe due to having been ripped up by the clients. The problem was not fixed until mid-September 1982. Several of TLP's clients have gait difficulty. For them torn up flooring is a significant hazard. TLP had some difficulties securing the replacement covering. This fact accounts for some of the delay in making the repairs but this incident, like that of Brian B.'s helmet, is illustrative of TLP's attitude in not taking the initiative to recognize unsafe situations and then remedy them without waiting for a push from the Department. The incident also demonstrates that there are periods of time when TLP clients were not adequately supervised. In order to rip up the flooring they must have had considerable time alone without a staff member being present.

    
    

    Bites, Scratches and Sores

    
    

18. The parties presented conflicting evidence on whether the clients of TLP were subject to more incidents of bites, scratches and other sores than were residents in similar facilities in the Tampa Bay area. Such proof is difficult to quantify. Because TLP clients are not exclusively within the control of TLP all the time, the Department was not able to prove that TLP is responsible either directly or indirectly for the minor injuries sustained and exhibited by TLP clients. When the clients attend school or commute to school by bus they

    can suffer injury. The Department's proof did not eliminate the possibility or probability that many of the injuries to TLP clients occurred in situations, other than those under the supervision of TLP. I therefore find the Department failed to establish that TLP clients experience a disproportionate number of bites, scratches and sores.

    
    

    Ernie J.'s Medication

    
    

19. During September 1982 Ernie J., a client at TLP, was receiving the drug Mellaril under a prescription issued by Dr. Shirley Borkowf. Ernie attended school and required the administration of his Mellaril drug during the school day. As was its custom Ernie's school requested from TLP information indicating what medication he should be given at school and the amount of dosage. TLP responded by telling the school he should receive Benadryl, yet TLP sent to schools his proper medication, Mellaril. The school discovered the discrepancy, sought clarification from TLP, and Ernie suffered no harm because of the error.

    
    

    Post Complaint Improvements

    
    

20. Subsequent to the filing of the original Administrative Complaint, TLP has made several improvements to its facility. Three adult staff members are now on duty during the busiest hours of the day, between 4:00 p.m. and midnight. The interior of the facility has been painted, pictures have been hung on the walls, and three tree stumps have been removed from the grounds.

    
    

21. In April 1983 TLP sought professional advice for improving its medication logs, and on the basis of that advice has instituted procedures for maintaining significantly better medication records which if followed will comply with the Department's standards.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1983).

    
    

23. These proceedings are brought under Section 10F-6.03(5), Florida Administrative Code which provides:

    
    

    A license shall be revoked at any time, pursuant to Chapter 28-6, FAC, if the applicant fails to maintain applicable standards or to observe any limitations specified in the license.

    
    

    The foregoing provision relates to residential group home facilities such as Tarsha's Little People which are licensed by the Department.

    
    

24. There is no allegation in the Amended Administrative Complaint that Tarsha's has failed to observe any limitations specified in the facility's license. Therefore the only issue presented here is whether or not TLP failed to maintain acceptable standards. Those standards 2/ are set out in Section 10F-6.10, Florida Administrative Code, as they are pertinent to this proceeding provide:

    * * *

    (4) Services to be Provided. Group

    home facility services shall include, but not be limited to, provision of adequate living accommodations, proper and adequate dietary supervision, appropriate physical care, support, guidance, supervision and assistance with training required to assure each individual the opportunity

    for personal growth and development. Speci- fic services to be provided shall be de fined by the needs of the clients to be served. Consideration shall be given to age, sex, development level and specific needs.

    * * *

    1. Training for Clients.

       1. The group home facility shall rein- force the implementation of the client's habilitation plan.

       2. The group home facility shall be supportive of the client in exercising maximum independence in the following areas:

          1. Self-care skills.

          2. Daily living skills.

          3. Social skills.

          4. Communication skills.

          5. Recreation opportunities and the use of leisure time.

          6. Community resources utilization.

          7. Work habits.

          8. Motor skills.

          9. Basic knowledge.

    * * *

    (14) Medications.

    * * *

    (d) A daily record must be kept of prescription and/or nonprescription medi- cation administered, except when self- medication is approved as part of the habilitation plan. The record must specify the client's name, date, time, dosage, name of medicine and signature of person adminis- tering.

    
    

25. With respect to the maintenance of medication records the Department has proven a violation of Section 10F-6.10(4) and (14)(d), Florida Administrative Code. 3/ While TLP did maintain a daily record of prescription medication administered to each client, it was proven that such records were inaccurate because they indicated the administration of more medication than was ever obtained by TLP for the five clients whose records were introduced. The failure of TLP to accurately maintain medication records was certainly a failure to provide appropriate physical care. The consequences of the facility's misfeasance could have been quite dangerous to any of the five clients.

    
    

26. TLP's use of a common container for drinking water and for the communal receipt of used toothbrushes is certainly a failure to provide adequate

    physical care. It is difficult to understand how anyone could have allowed such a procedure. Aside from the fact that the presence of a bloody toothbrush in the communal cup is repulsive, the health hazard; of TLP's now discontinued practice should have been obvious to anyone entrusted with the care of people not able to adequately care for themselves.

    
    

27. The one observed incident when TLP clients were fed dinner with only spoons for utensils was a minor breach of Section 10F-6.10(11)(b), Florida Administrative Code, which requires that the clients be supported in exercising maximum independence in the area of self care and daily living skills. More significantly however, the incident which required clients to gnaw off bite-size pieces of ham created a danger of choking. Because of their retarded mental state those clients may not have been able to fully appreciate that danger.

    
    

28. There are several incidents which indicate that adequate supervision of TLP clients was not maintained. The numerous escapes of Kevin B., the destruction of floor covering, and the inadequate staff schedule for bathing time all indicate that TLP clients have not received the supervision adequate for their physical care as required by Section 10F-6.10(4), Florida Administrative Code. A lack of appropriate physical care was also shown with respect to Brian B.'s helmet strap problem. It appears that TLP took action in the situation only after the matter came to the attention of the Department and even then was lackadaisical about a solution. The unwashed condition of his hair once he was removed from the facility and the helmet undone is a further indication that TLP was at times indifferent to the physical care of its residents.

    
    

29. There was conflicting evidence about the quality of the client assessments and the client habilitation plans prepared by TLP. This issue which was poorly pled in the Administrative Complaint (once the Department agreed to withdraw paragraph 1(a) through 1(f) as it related to the failure to file quarterly reports) must be resolved against the Department for a failure of proof.

    
    

30. TLP's initial mistake in indicating the wrong drug Ernie J.'s school does not constitute a violation of Chapter 10F-6.10, Florida Administrative Code. It was a simple clerical mistake which was easily remedied.

    
    

31. The proof in this case shows that several TLP clients receive powerful psychotropic (antipsychotic) medication including Haldol and Mellaril. The propriety of administering such drugs to these retarded young people was not an issue in this proceeding, therefore there is no record about what procedures or substantive steps were taken to insure that each client or his guardian gave informed consent to the use of such dangerous medications. It did appear from the evidence that the medical supervision of such medication is not as attentive as it might be. The Hearing Officer raises his concern about the use of psychotropic medication for these clients in the spirit of MacDonald v. Department of Banking and Finance, 346 So.2d 569, 582-583, (Fla. 1st DCA 1977), only because the gravity of using these drugs did not seem to be appreciated by the parties responsible for the welfare of Tarsha's clients.

    
    

32. The physical results of psychotropic medication are serious. They include temporary muscular side-effects (extra-pyramidal) which disappear when the drug is terminated. These effects involve dystonic reaction (muscular spasms, specially in the eyes, neck, face and arms, irregular flexing, writhing or grimacing movements; protrusion of the tongue); akathesia (inability to stay

    still, restlessness, agitation); and Parkinsonisms (mask-like face, drooling, muscular stiffness, rigidity, shuffling gait, and tremors).

    
    

33. Non-muscular side-effects of the medication include drowsiness, weakness, weight gain, dizziness, fainting, low blood pressure, dry mouth, blurred vision, lost of sexual desire, apathy, constipation and skin rashes among others. Yet far more serious than any of the foregoing, because of its permanence, is tardive dyskinesia. It is characterized by involuntary muscular movements around the mouth. The attendant rythmic movements of the lips, tongue and cheeks are grotesque and are unappealing to watch. Plotkin, 2 Legal Rights of Mentally Disabled Persons "Limiting the Therapeutic Orgy: Mental Patients' Right to Refuse Treatment," 875, 891-892 (practicing Law Institute 1979); Rogers

    v. Okin, 478 F.Supp. 1342, 1360 (D.Mass. 1979), aff'd. in part and reversed in part 634 F.2d 650 (1st Cir. 1980), vacated an remanded sub nom. Mills v. Rogers, U.S. , 102 S 2442 (1982). Mills was remanded for further consideration because during the pendency of review before the United State Supreme Court the Supreme Judicial Court of Massachusetts in the decision of In the Master of Guardianship of Richard Roe, III, Mass. , 421 N.E. 2d 40 (1981) held that under state law a noninstitutionalized mentally incompetent person has a constitutionally protected interest in refusing treatment with antipsychotic drugs.

    
    

    Relief

    
    

34. The Department has requested that the license of TLP be revoked. Such an act should not be likely taken. The operation of a group home for retarded young people is certainly not an easy task nor is it one without serious responsibility. The clients are unable to care for even their simplest daily needs. They are even more vulnerable to physical and psychological harm than young children. When Florida grants a license, to a facility to undertake the heavy responsibility of caring for such people it must be satisfied that an extremely high level of care will be rendered. The record shows that TLP does not meet such a standard. Incidents such as Kevin B.'s escapes, the maintenance of inaccurate medication logs, the use of communal toothbrushing facilities, the failure to aggressively replace Brian B.'s helmet strap, and the evidence showing poor supervision, together in the aggregate demonstrate that TLP has failed to meet HRS standards in providing for the supervision and safety of its clients. While the facility has made serious attempts to improve on its past mistakes, its history of service demonstrates a fundamental lack of understanding of the care required by developmentally disabled people.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a Final Order revoking the license of Tarsha's Little People. Inc. to operate a group home facility for developmentally disabled people.

DONE and RECOMMENDED this 29th day of February, 1984, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

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 29th day of February, 1984.

ENDNOTE

1/ Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v. Orlando Utilities Commission, 436

So.2d 383 (Fla. 5th DCA 1983).

2/ Required by Section 393.067(5), Florida Statutes (1983). 3/ See also Section 393.13(3)(f), Florida Statutes (1981).

COPIES FURNISHED:

Amelia M. Park, Esquire and Janice Sortor, Esquire District Legal Counsel Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614

Kaydell O. Wright, Esquire

518 North Tampa Tampa, Florida 33601

Alicia Jacobs, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

David H. Pingree, Secretary Department of Health and

Rehabilitative Services, 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-002805

Orders for Case No: 82-002805