STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3831

) WOODHOUSE, INC. d/b/a WOODHOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 27, 1994, in Pompano Beach, Florida.

APPEARANCES

For Petitioner: Harold L. Braynon, Esquire

District X Legal Counsel

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

For Respondent: Christopher J. Ema, Esquire

2700 Northeast 14 Street Causeway Pompano Beach, Florida 33062

STATEMENT OF THE ISSUE

The issue presented for decision herein is whether or not the Respondent failed to have in effect written procedures for the implementation of policies and procedures; failed to provide adequate training, staff, recreation areas and facilities as required pursuant to Sections 400.141 and 393.067(5), Florida Statutes, and Rule Sections 10D-38.08; 10D-38.19(2)(c) and (9), (10) and (12), Florida Administrative Code.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact.

1. Petitioner, Department of Health and Rehabilitative Services, seeks to impose an administrative fine in the amount of $300 based on allegations set forth more particularly in its Administrative Complaint 1/ filed October 28, 1983, alleging, inter alia, that Respondent failed to have written procedures for the implementation of policies and procedures as enumerated in Rule 10D- 38.08, Florida Administrative Code; that Respondent filed to provide adequate inservice training or professional direct care and other personnel; failed to

   have recreation and facilities designed and constructed as required by Rules 10D-38.10 and failed to have age-appropriate recreation equipment and supplies to meet patients' direct interests and needs in sufficient quantities and varieties to carry out objectives of its program. Based thereon, it is alleged

   that Respondent violated minimal standards as required by Petitioner's rules and regulations under Chapters 393 and 400, Part I, Florida Statutes.

   
   

2. Respondent, Woodhouse, Inc., has a license to operate Woodhouse, 1001 NE Third Avenue, Pompano Beach, Florida, an intermediate care facility for the mentally retarded. Woodhouse was newly established during approximately April of 1983.

   
   

3. On May 17 through 18, 1993, Petitioner conducted a survey of the facility by personnel from its Miami Office of Licensure and Certification. Results of that survey revealed that Respondent did not have into effect written procedures for the implementation of its policies and procedures. These policies dealt with items such as health, hygiene, grooming, equippage and an absence of needed staff including a recreational therapist and a qualified mental retardation employee on its staff.

   
   

4. On June 29, 1983, Petitioner conducted a re-survey by members of the initial team who surveyed Respondent's facility during May of 1983 and, at that time, most of the items cited as violations had been corrected. The areas needing improvement related to the specifics as to how the policies and procedures were to be implemented by Respondent. The other area cited as still being in noncompliance was the absence of a trained recreational therapist and a qualified mental retardation employee on Woodhouse's staff.

   
   

5. Marcia Trivigno is the Executive Director in charge of the overall administration of Woodhouse. Ms. Trivigno is the person in charge of and who authored the Respondent's Procedures Manual and of making the ultimate decisions respecting the hiring of staff for Woodhouse. Ms. Trivigno compiled and authored the Respondent's manual by reviewing the Policies and Procedures Manual of two other area facilities and based on recommendations from Petitioner's staff.

   
   

6. Following the Petitioner's initial survey during May of 1983, Ms. Trivigno made a good faith effort to correct all areas cited as deficiencies during the initial survey.

   
   

7. Initially, Ms. Trivigno experienced difficulty securing a trained recreational therapist. She temporarily used a part-time recreational therapist who left the Respondent's staff to work full-time in another position. Ms. Trivigno was successful in hiring a recreational therapist on June 24, 1983, approximately five days prior to Petitioner's re-survey.

   
   

8. Respondent's staff sought the advice and consent of Petitioner's survey team members and implemented, to the extent possible, the deficiencies cited as relates tot he Policies and Procedures Manual. (Testimony of Marcia Trivigno and Angela Catarino.)

   
   

9. It is not unusual for a newly established intermediate care facility to be cited for multiple violations during an initial survey by Petitioner's staff. During the initial survey, members of Petitioner's staff advise a client as to problem areas and offer ways to correct or otherwise remedy problem areas. In those instances, the usual procedure is for a plan of correction to be implemented by members of the facility and the survey teams. (Testimony of

   Laverne Dixon, Petitioner's staff person in charge of the surveys conducted at Respondent's facility of 1983.)

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

11. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

12. The authority of the Petitioner is derived from Chapters 393 and 400, Florida Statutes, and Rule Chapter 10D, Florida Administrative Code.

    
    

13. Insufficient evidence was offered herein to establish that Respondent failed to provide in-service training or professional direct care and other personnel as alleged in paragraph (3)(b)1 of the Administrative Complaint filed herein. While it is true, and Respondent acknowledges, that there were inadequate service training of its professional staff when Petitioner made its initial and re-survey of the facility herein during May 17 through 19, 1983, and the re-survey on June 29, 1983, evidence herein reveals that these items have now been corrected. Likewise, Respondent has employed or otherwise retained appropriate and qualified staff and support personnel as required pursuant to Rule 10D-38.19(9), Florida Administrative Code. Although Respondent did not have the sufficient qualified and necessary support staff as required when Respondent's surveys were first conducted, these matters have now been corrected and it is not unusual for a new facility, as Respondent, to experience growing pains during the first months of operation. Based thereon, and in view of Respondent's represented willingness to comply with or otherwise satisfy all rules and regulations of Petitioner, imposition of an administrative fine herein does not appear warranted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Administrative Complaint filed herein be DISMISSED.

DONE AND RECOMMENDED this 30th day of May 1984 in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1984.

ENDNOTE

1/ Paragraphs 3 and 4 of the Administrative Complaint filed herein were withdrawn at the hearing by Petitioner's counsel.

COPIES FURNISHED:

Harold Braynon, Esquire District X Legal Counsel

201 West Broward Boulevard Fort Lauderdale, Florida 33301

Christopher J. Ema, Esquire 2700 NE 14 Street Causeway Pompano Beach, Florida 33062

David Pingree, Secretary Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-003831

Orders for Case No: 83-003831