STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3249

)

LYDIA SIESS, d/b/a BAYVIEW )

SUPERIOR RETIREMENT HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on November 21, 1983, at Clearwater, Florida.

APPEARANCES

For Petitioner: Barbara D. McPherson, Esquire

Department of Health and Rehabilitative Services

2255 East Bay Drive Clearwater, Florida 33516

For Respondent: Bruce Boyer, Esquire

308 South Garden Avenue Clearwater, Florida 33516

By Amended Administrative Complaint dated September 30, 1983, the Department of Health and Rehabilitative Services, Petitioner, seeks to revoke the license of Lydia Siess, d/b/a Bayview Superior Retirement Home, Respondent, as an Adult Congregate Living Facility. As grounds there for it is alleged Respondent failed to provide a safe and decent living environment; used physical restraints on residents; failed to maintain accident and incident records; failed to have posted menus and follow menus; served meals more than 14 hours apart; stored medications in an unlocked cabinet; failed to provide close supervision of residents; failed to encourage residents to participate in social and recreational activities; failed to provide residents access to adequate and appropriate health care; failed to properly administer medications and have prescribed medications on hand; failed to provide residents with the reasonable opportunity for regular exercise several times per week; and failed to cover each resident with a properly executed contract.

At the hearing 11 witnesses were called by Petitioner, five witnesses were called by Respondent, and nine exhibits were admitted into evidence.

The parties' proposed findings, to the extent incorporated herein, are adopted; otherwise, they are rejected as not supported by the evidence or not necessary to the results reached.

FINDINGS OF FACT

1. At all times relevant hereto Bayview Superior Retirement Home (Bayview or Respondent) was licensed by Petitioner as an Adult Congregate Living Facility.

   
   

2. At the time of this hearing there were ten residents at Bayview. These residents ranged in age from about 60 upward. Several of these residents are senile or partly so; and many are incapable of taking care of their personal needs such as taking their medication, bathing and dressing themselves, visiting their doctors' offices, or going out of Bayview unescorted.

   
   

3. Jenny D. is a resident at Bayview. She easily becomes disoriented and has a propensity for wandering to other residents' rooms and for leaving the facility and walking downtown. On several occasions Jenny D. was picked up by the police walking on the street in heavy traffic and was unable to give her name or where she lived. To deter this practice, and at the prodding of Petitioner, Bayview installed a door alarm system to alert the attendants on duty of a resident's attempt to slip out for any reason. On only one occasion since the installation of this alarm was Jenny D. successful in slipping away and having to be returned by the police or be picked up by someone from Bayview and brought back.

   
   

4. On July 6, 1983, approximately one week following one of Jenny D.'s sojourns from Bayview, Rebecca Falzone, a licensed specialist for Petitioner, visited Bayview to inspect the home and records. A review of Jenny D.'s record did not reveal an incident report on Jenny D.'s escapade the previous week. At the time of this visit the Administrator, Gordon Groundwater, was not present. Groundwater had prepared the incident report but had removed the handwritten copy from the file to be typed. A copy of the incident report was submitted as Exhibit 8.

   
   

5. On or about June 15, 1983, after going to bed, Jenny D. got out of bed and wandered to other residents' rooms until she was taken back to her bed by an attendant. Jenny D. resisted the efforts to put her into bed and she had to be restrained to get her back to bed. This consisted first of holding Jenny D.'s arms then placing her in a jacket-type restraint to keep her in bed until she settled down. During this restraining process, Jenny D. suffered bruises on her arms (Exhibit 2).

   
   

6. Terry Orme worked as a handyman at Bayview from July to mid-September, 1983, at which time he was fired. Orme occupied an apartment owned by Bayview as part of his compensation for his services. Upon being terminated, he was told to vacate the apartment, but did not leave until evicted by court order in October. After his termination, Orme reported to Respondent an incident involving one resident who had nearly choked on a nylon hose put on her hands and arms to deter the resident from sucking her fingers. In sucking her fingers through the hose, she sucked part of the hose down her throat. Orme also testified that he put chains on doors to keep residents from wandering into other residents' rooms.

   
   

7. On one occasion during a visit to Bayview by Frederick Timmerman, M.D., who serves on the Ombudsman Council with Bayview as his responsibility, no menu

   was posted. Dr. Timmerman attempted to talk to the residents at Bayview but got no intelligent answers from any of them. On another occasion during a visit to Bayview by one of Petitioner's employees, the posted menu had not been changed to correspond with the meal being served.

   
   

8. Gail Silva worked at Bayview on Saturday, August 27, 1983, from 7:00

   a.m. until 4:36 p.m. She was hired by Mrs. Siess and at 4:36 p.m. when Mrs. Siess returned to Bayview Mrs. Silva quit, quite angry because she had told Mrs. Siess she needed to leave at 3:00 p.m. to take care of her young children, and Mrs. Siess was not present to relieve her at that time. Upon reporting for work that Saturday morning, Mrs. Silva was taken on rounds by Mrs. Siess. They went to a room occupied by Hanna, an incontinent resident who was taken to the bathroom and hosed down by Mrs. Siess. Liquid detergent was used by Mrs. Siess to wash the resident's genital area. No full bath was administered. Later that day Mrs. Silva bathed another resident who had diarrhea and was wearing Pampers diapers and loose underwear. A bathing schedule was posted but Mrs. Silva did not know if anyone was scheduled for a bath the one day she worked. Mrs. Silva also observed Mrs. Siess give medications to some residents. For some, she put the pill in a bowl and provided them with water to wash down the pill. For one resident, Mrs. Siess put the medication in some pudding which was given to the resident. Mrs. Silva also testified that one resident had an infected foot, on which Silva cut out an ingrown toenail; that she cut the fingernails of several residents; that she assembled them in the afternoon to discuss recreation with them and several requested music and dancing; that no recreation activities such as radio, group games, etc., were provided; that the t.v. provided was a pastime and not an activity; and that Mrs. Siess asked her if she knew how to change a catheter. Mrs. Silva's medical education consists of a course in home health training which she took from a nursing agency, but she has done volunteer health work in the past. She knew that only a licensed nurse is authorized to change a catheter and was offended at being asked if she knew how to change one.

   
   

9. During an evening visit to Bayview by Mrs. Falzone, residents told Mrs. Falzone around 9:00 p.m. that they were hungry. The evening meal had been served at 5:00 p.m. and breakfast was scheduled at 8:00 a.m. the next morning, more than 14 hours after the dinner meal.

   
   

10. The medicine chest in which medications are stored is a metal box which opens from the top. There is no handle on the door (top) of this chest, and on several occasions when inspectors were at Bayview the chest was not locked. The chest was kept in the kitchen, to which residents were barred, and either a knife or screwdriver was needed to open the unlocked chest. Even with the key, it is difficult to open the chest without applying the levering effect of a knife or screwdriver to lift the door of the chest on its hinges. All witnesses agreed that few, if any, residents had the dexterity to open the unlocked medicine chest; that the residents did not have access to the chest located in the kitchen; and that a large percentage of these residents could not take their medications unaided, but needed to be given their proper medications by one dispensing the medications to them.

    
    

11. Considerable evidence was submitted that many of the residents at Bayview were unable to safely leave the facility without close supervision; and that Jenny D. "walked away" on numerous occasions before the door alarm system was installed, and one time after it was installed. Respondent is also charged with having doors locked and wired shut to keep residents from surreptitiously leaving the facility and thereby subjecting themselves to danger. The evidence in this regard was contradictory, with one witness testifying the one day she worked at the facility one outside door was wired shut, while the Administrator

    of the facility categorically denied any door was so wired. Since neither of these witnesses' testimony is deemed more credible than the other, the evidence on this charge is in equipoise.

    
    

12. Terry Orme also testified that on one occasion he, at the request of Mrs. Siess, signed a name to a contract as sponsor, thereby forging the signature. A copy of this contract was not produced and no other evidence regarding this incident was presented. However, Orme's testimony in this regard was not contradicted.

    
    

13. Residents of Bayview Superior Retirement Home are happy at the facility and their relatives are satisfied with the facility and the care given to these residents. Several relatives of residents at Bayview phoned and wrote to the Ombudsman responsible for this facility complaining about having to move their relatives from this facility.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

15. Section 400.414, Florida Statutes, provides:

    
    

    1. The department may deny, revoke, or suspend a license or impose an administrative fine in the manner provided in chapter 120.

    2. Any of the following actions by a facility or its employee shall

       be grounds for action by the department against a facility:

       1. An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.

       2. The determination by the department that the facility owner or operator

          is of questionable moral character or lacks the financial ability to provide adequate care to residents, pursuant to the information obtained through s.

          400.411, s.400.417, or s.400.434.

       3. Misappropriation or conversion of the property of a resident of the facility.

          
          

16. No evidence was presented regarding financial deficiencies of Respondent, and the only evidence regarding the moral character of Respondent was the uncorroborated testimony of a fired former employee that he, at the request of Respondent, forged a sponsor's signature to an admission contract. Accordingly, the only grounds for revocation of license sought by Petitioner is Subsection (2)(a), above-quoted.

    
    

17. Section 400.419, Florida Statutes, provides generally that if a facility is not in compliance with standards promulgated for adult congregate living facilities the Department may impose an administrative fine. Section 400.419(1)(b) specifically provides:

    (1)(b) Any facility owner or operator found to be in violation of this part shall be liable to a fine, set and levied by

    the department.

    
    

18. Reading these two statutory provisions in pari materia leads to the conclusion that violations of the various provisions of Chapter 400, Part II, and the regulations promulgated pursuant thereto contained in Chapter 10A-5, Florida Administrative Code, may be punished only by administrative fine unless the violation constitutes "an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility" (or other Section

    400.414 violation).

    
    

19. By this Administrative Complaint Respondent is charged with violation of Section 400.428(1)(a) by restraining Jenny D. on June 15, 1983; by restraining another resident in September, 1983; and of instructing Mrs. Silva to use dish washing detergent to bathe the residents. The evidence supports a finding that Jenny D. was restrained on June 15, 1983, to keep her in her bed and out of other residents' rooms; no evidence was submitted that the nylon hose was placed on Bessie to restrain her but was used to keep her from sucking on her fingers; nor was evidence presented that Mrs. Silva was instructed to wash residents with dish washing detergent.

    
    

20. With respect to alleged violation of Section 400.428(1)(j) Florida Statutes, the evidence does not support a finding that residents were denied adequate health care. No evidence was submitted that Mrs. Silva was directed to change a catheter and Mrs. Silva's testimony regarding the resident with an infected foot, ingrown toenail, and one-quarter inch hole in her toe was less credible than the testimony of Dr. Groundwater, a podiatrist, who denied such a condition existed.

    
    

21. Respondent is also charged with violation of Section 400.401(11), Florida Statutes. Since there is no such section and the charge quotes the statutory language intended, it is obvious that Section 400.402(11) was the section intended to be charged. Section 400.402 is entitled "Definitions" and Subsection (11) thereof defines supervision of self-administered medication. The acts which are alleged to constitute a violation of this definition consist of Mrs. Siess administering medication to a resident and Mrs. Silva's testimony that the medicine chest did not contain all of the medications prescribed for each resident. While it is obvious that Petitioner intended to charge Respondent with unauthorized administering medications, the Complaint does not allege this offense. Accordingly, Respondent must be found not guilty of violating Section 400.402(11), Florida Statutes.

    
    

22. The final statutory provision Respondent is charged with violating is Section 400.424(1), which requires each resident of a facility to be covered by a contract. The only evidence presented to sustain this charge was that Terry Orme forged a signature on a contract at the request of Mrs. Siess. The contract was not presented, nor was any evidence presented that the resident was not covered by a valid contract. The forged contract was not void, but voidable. The party whose name was forged could have ratified the signature, waived defects in the execution, or acquiesced in the terms of the contract. Under these circumstances, the bare allegations by Orme that he signed another's name to what he thought was a contract does not constitute clear and convincing evidence of the alleged violation.

23. None of the statutory violations proved constitute an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.

    
    

24. Respondent is further charged with violations of numerous rules of the Department.

    
    

25. The evidence is clear and convincing that Respondent violated Rule 10A-5.18(5) (use of physical restraints on Jenny D.); Rule 10A-5.18(6) (medications in unlocked cabinet and administered by person not licensed to administer medications); Rule 10A-5.18(4) (failure to closely supervise

    residents needing such supervision); and Rule 10A-5.20(11)(h) (meals served more than 14 hours apart). The evidence is less clear that Respondent violated Rule 10A-5.24(1), Florida Administrative Code, by not maintaining a proper accident and incident record; Rule 10A-5.29(1)(j) regarding menus (although the evidence was unrebutted that corrections to the menus were not made as alleged; and Rule 10A-5.18(4)(c). The latter charge, that a resident complained to Dr. Timmerman about lack of activities and Mrs. Silva's testimony that the residents collectively told her they would like music, is in strict conflict with Dr.

    Timmerman's testimony that he could get no intelligent conversations from the residents. However, none of these rule violations are such that they constitute an intentional or negligent act seriously affecting the health, safety, or welfare of the residents. The possible exception to this conclusion involves the escapades of Jenny D. in slipping out of the facility and wandering through downtown traffic. Respondent has now installed alarms on the doors to deter residents from leaving the facility undetected, and this danger has thereby been greatly reduced, if not eliminated.

    
    

26. The principal deficiency in the operation of Bayview appears to be the quality of residents as compared to the care provided. Rule 10A-5.18(1)(c), Florida Administrative Code, a violation of which was not charged, provides in part:

    
    

    (c) No resident shall be admitted

    to or allowed to remain in a facility who requires services beyond those the facility is licensed to provide. ...

    
    

27. From the foregoing, it is concluded that Respondent has numerous residents needing greater care and supervision than the staff of Respondent are qualified to provide and, as a result, many of these residents did not get the care required and the violations above-noted occurred. None of these violations is of sufficient severity to authorize the revocation of the license of Lydia Siess, d/b/a Bayview Superior Retirement Home. However, these violations do merit the imposition of an administrative fine for those violations of which Respondent has been found guilty. It is therefore

RECOMMENDED that an administrative fine in the amount of two thousand five hundred dollars ($2,500) be levied against Lydia Siess and Bayview Superior Retirement Home.

ENTERED this 18th day of January, 1984, at Tallahassee, Florida.

K. N. AYERS, 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 18th day of January, 1984.

COPIES FURNISHED:

Barbara McPherson, Esquire Department of Health and

Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33516

Bruce Boyer, Esquire

308 South Garden Avenue Clearwater, Florida 33516

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

================================================================= DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO. 83-3249

LYDIA SIESS, d/b/a BAYVIEW SUPERIOR RETIREMENT HOME,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case has submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

1. PDAA - meaning HRS District V Aging and Adult Program - filed Exceptions to the Recommended Order. A copy of PDAA's Exceptions is attached hereto as Exhibit A.

HRS STATEMENT AND RULING ON THE EXCEPTIONS

(AA) PDAA Exceptions (a), (b), (c), and (d) - These exceptions have sufficient merit to show that the recommended penalty must be increased to be an outright revocation. After a review of the complete record, HRS hereby increases the recommended penalty to an outright revocation. The violations, which the Hearing Officer found to have occurred, mount to a substantial danger to health and welfare. Exhibit 1, which is an Amended Final Order entered by HRS in September, 1982, shows that Ms. Siess had previously been charged with violations of the same caliber and had received a one-year probation from HRS. Overall, the record shows that an outright revocation is appropriate.

(AA) PDAA Exception To Conclusions of Law - The Exception is sustained to the extent that the recommended penalty is increased to be an outright revocation.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact made by the Hearing Officer.

CONCLUSIONS OF LAW

Except for portions relating to the recommended penalty, the overall conclusion of law stated by the Hearing Officer is accepted. After a review of the complete record, HRS increases the recommended penalty from a $2500 fine to outright revocation of the ACLF license.

It is ADJUDGED that the license of Lydia Siess, d/b/a Bayview Superior Retirement Home, is REVOKED.

ORDERED this 7th day of May , 1984, in Tallahassee, Florida.

DAVID H. PINGREE

Secretary

COPIES FURNISHED:

Bruce Boyer, Esquire

308 South Garden Avenue Clearwater, Florida 33516

Barbara D. McPherson, Esquire Department of HRS

2255 East Bay Drive Clearwater, Florida 33516

K. N. Ayers, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Harden King, Agency Clerk Department of HRS

1323 Winewood Boulevard

Suite 407

Tallahassee, Florida 32301

Docket for Case No: 83-003249

Orders for Case No: 83-003249