on February 25, 1983, in Lake City, Florida. The issue for determination at the hearing was whether Respondent's license to operate an adult congregate living facility should be revoked for failure to properly care for an individual under his care.
For Petitioner: James A. Sawyer, Jr., Esquire
For Respondent: Mr. Cirilo Alvarez, pro se.
By Administrative Complaint, Respondent was charged with a violation of Section 400.414(2)(a), Florida Statutes (1981), for failing to provide assistance in securing necessary health care for an individual under his custody in August, 1982, in Lake City, Florida.
In support of the allegations in the complaint, Petitioner presented the testimony of Sharon Stucky and Exhibit 1.
Cirilo Alvarez, at all times pertinent to the allegations in the complaint, operated an adult congregate living facility in Lake City, Columbia County, Florida, Briar's Haven Adult Care Center, under license number 03-12-
0128-BPS, issued by the Florida Department of Health and Rehabilitative Services.
In late July or early August, 1982, Respondent, who is a psychiatric nurse specialist and who works full time at North Florida State Mental Hospital (Hospital) at Macclenny, Florida, took Woodrow Harrison, an elderly patient at that institution, into his home, Briar's Haven Adult Care Center, on pass status from the Hospital for periodic short visits. Ultimately, on July 30, 1982, Harrison was released from Macclenny and began living full time at Respondent's facility.
On August 3, 1982, Sharon Stucky, a registered nurse case manager for the North Florida Mental Health Center (Center) in Lake City, Florida, did an intake interview with Harrison, who had just been released from the Hospital and who was living at Respondent's facility. Mr. Harrison was brought into the Center by Respondent's wife. Records from the Hospital pertaining to Harrison, which came to the Center, reflected that he suffered from a seizure disorder and a diabetic condition. His medication consisted of 300 mg. of Dilantin daily and
30 mg. of phenobarbital daily, and he was to receive a daily insulin injection. At the time of his release from the Hospital, he was furnished with a thirty-day supply of these medications.
On the afternoon of August 13, 1982, Mr. Alvarez went into the Center with Mr. Harrison and asked to see Ms. Stucky. Respondent indicated that Mr. Harrison was having many physical problems. Earlier in the day, he had taken Harrison back to Macclenny to have him readmitted for seizures, incontinence, etc., even though he was taking his medications, but officials at the Hospital refused to admit him. Mr. Alvarez wanted him admitted to some facility in Lake City.
Stucky, indicating she would have to talk with Harrison before taking any action, did so and felt she could see no change in his condition since her first interview of him on August 3, and she decided she could not justify having him recommitted to the mental hospital.
Since Stucky wanted to find out if the seizures were the result of a physical problem, and she could not do a physical herself, she requested that Respondent take Harrison to a doctor for an examination. The Respondent again demanded that Harrison be admitted and, when Ms. Stucky refused, stated he would take Harrison to the hospital and leave him. Ms. Stucky talked with her supervisor to see if there was any way that Harrison could be readmitted to Macclenny, and it was determined there was not. When the information was related to Mr. Alvarez, he departed with Mr. Harrison.
Respondent then took Harrison to the emergency room at Lake City's Lake Shore Hospital. After a chart was prepared on Harrison, Alvarez departed, leaving Harrison there without his medications. When Alvarez first took Harrison in, he was told there would be an hour wait before Harrison could be seen. Alvarez asked if Harrison could sit there and wait, and the person on duty said, "Yes." Once that was arranged, Respondent left without Harrison. According to a report of the doctor on duty, Harrison was confused and incapable of giving a complaint or history. As a result, evaluation of him was difficult, and his well-being was compromised. Respondent subsequently made no effort to get Harrison's drugs to him by delivering them to Ms. Stuckv, nor did he inquire where Harrison was.
Respondent's actions in dropping Mr. Harrison off at the Lake Shore Hospital unsupervised, and only calling to check on his status somewhat later, constitute an intentional abandonment which could have seriously affected Harrison's health, safety, and welfare.
Somewhat later the same day, Respondent called Lake Shore Hospital to find out what Harrison's status was, but Harrison had already been placed in another adult care facility by Ms. Stucky when the hospital called her and told her of Harrison's situation. Respondent did not make any other calls. Ms. Stucky visited Harrison daily at this new facility and administered his insulin shot. He appeared to be doing well there and wanted to remain, but on August 17, 1982, he was readmitted to Macclenny, where he currently resides. Harrison is incapable of taking care of himself. He has a poor memory and is somewhat retarded and childlike, according to Stucky. He has no concept of time and could not administer his medicines to himself. He could not understand the need to take his medicine or remember to take it if he could.
Since Mr. Harrison was dropped off at Lake Shore without either his medicines or a change of clothing, Stucky made several telephone calls to the Respondent to retrieve them. Mr. Alvarez was always out when she called, and Stucky talked with several different females who answered the phone and with whom she left messages requesting him to call her back. Alvarez did not return any of the calls, but he states he never received them. This is rossible since, he says, neither his mother nor his wife, two of the people at home who may have received the original calls from Stucky, speaks much English.
Respondent provided Mr. Harrison with all the clothes he had except those he was wearing when he came from Macclenny. Upon the advice of individuals at Macclenny who he could not remember to identify, Respondent applied for Social Security benefits to support Harrison while he was at Respondent's facility. Because Harrison had no family, Respondent sought the counsel of the legal aid office in Lake City to see if he could be appointed Harrison's legal guardian and was told he could not. In late January or early February, 1983, Respondent received one Social Security check in the amount of
$1,900 made out to Harrison and Mrs. Alvarez. This check was not cashed because Harrison was no longer with the Respondent, but was returned to the Social Security Office. Harrison's medicines that were in Respondent's possession when Harrison was taken to the hospital were discarded.
Respondent worked with Harrison at Macclenny for about a year before taking him to his own facility. During that time to his knowledge, Harrison never had any seizures. Respondent gave him his medications at Macclenny and knew he needed drugs. When he took Harrison to his facility, he took Harrison's drugs as well.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).
Respondent is alleged to be subject to license revocation pursuant to Section 400.414(2)(a), Florida Statutes (1981), which states that the Department may deny, revoke, or suspend a license or impose an administrative fine for:
Any of the following actions by a facility or its employee shall be grounds for action by the department against a facility:
An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.
Thus, we are left to determine if the actions of Respondent with regard to Mr. Harrison constitute an intentional or negligent act seriously affecting the health, safety, or welfare of a resident. There is no doubt that it does.
Notwithstanding Mr. Alvarez's kindness in taking Mr. Harrison into his facility, and notwithstanding he ultimately received no compensation for the care provided, he nonetheless undertook to provide care for what was obviously an individual incapable of caring for himself. The evidence shows, furthermore, that Respondent, though in the name of his wife, attempted to secure funding from Social Security for Mr. Harrison, and but for the fact that Mr. Harrison was back in the Hospital before the checks began to arrive, he would have succeeded.
Once assuming the responsibility for the care of Mr. Harrison, Respondent was bound to provide it in such a fashion as not to threaten his health, safety, or welfare. To abandon, and by no stretch of the imagination or by urging of the Respondent can it be considered otherwise, an obviously incompetent senior citizen relying on the good sense and responsibilities of others to provide for him because this party became more trouble than was envisioned clearly constitutes, if not intentional action, at least negligent action within the framework and intent of the statute.
Other factors which give credence to this conclusion include the fact that Mr. Alvarez made no effort to deliver Mr. Harrison's medications, made no attempt to retrieve Mr. Harrison from the emergency room, and in fact telegraphed his intentions to Ms. Stucky when he advised her of his intent to just drop Mr. Harrison at the hospital if other arrangements were not made.
Here, it appears that this is a situation of an individual who operates an adult congregate living facility solely for gain, and when it became obvious that this resident would require more service and care than Respondent was willing to give, he attempted to rid himself of the burden. Such care was never intended by the statute or the Department.
Petitioner submitted a Proposed Recommended Order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
