STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND REHABILITATIVE ) SERVICES, STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 85-2120

) PAUL MOLINA, d/b/a PAUL MOLINA ACLF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before Sharyn L. Smith, Hearing Officer, Division of Administrative Hearings, on September 6, 1985.

APPEARANCES

For Petitioner: Morton Laitner, Esquire

1350 Northwest 14th Street Miami, Florida 33125

For Respondent: Theodore Dempster, Esquire

One Financial Plaza, Suite 1318 Fort Lauderdale, Florida 33394

The issue for determination was whether the Department of Health and Rehabilitative Services properly denied the Respondent an Adult Congregate Living Facility license, pursuant to Chapter 400.401, et seq. Florida Statutes.

The Petitioner presented the testimony of Jean Perry, Human Services Counselor II, Adult Abuse Unit, HRS; Dr. William Convey, a board certified physician; Dr. Juana Caceras, HRS physician; Records Custodian from Snapper Creek Nursing Home; Roberto Dominguez, ambulance driver; Manuel Carmon, ambulance driver; Carolyn Calaise, Director of Nurses at Jackson Manor Nursing Home; and Juan Manaricua, previously in charge of HRS, ACLF Licensing Unit. The Respondent presented the testimony of

Mary Molina. Petitioner's Exhibits 1-7 were offered and admitted into evidence.

The parties were given until September 19, 1985, to file proposed recommended orders with the Division. The Petitioner filed its Proposed Recommended Order on September 20, 1985. To the extent that those proposed findings are incorporated herein, they are adopted; otherwise, they are rejected as not supported by the evidence, mere recitation of testimony presented, cumulative, immaterial, redundant, or unnecessary to the conclusions reached.

At the beginning of the hearing, counsel for the Department expressed the view that the Department had the burden of proof in this proceeding and, accordingly, the parties have been redesignated to reflect this fact.

FINDINGS OF FACT

1. Manuel Valazquez, a resident of the Respondent ACLF, was admitted to the facility on May 31, 1984, from Jackson Manor Nursing Home. When he was transferred from the nursing facility to the ACLF, Valazquez was in good physical condition except for the presence of one bedsore on his foot. Valazquez and his family had requested the transfer from the nursing home to the Respondent's facility because the Respondent was a friend of the Valazquez family and Valazquez was not happy at the nursing home.

   
   

2. During the course of his stay at the Respondent's facility, Valazquez's condition deterioriated due to numerous bedsores. While at the Respondent's facility, Valazquez received a total of seven treatments for these bedsores, the last of which occurred on June 25, 1984.

   
   

3. On August 10, 1984, Valazquez was transferred to Snapper Creek Nursing Home with approximately ten bedsores over his body. Additionally, Valazquez was extremely thin, experienced muscle atrophy and organic brain syndrome with senile dementia.

   
   

4. Following his admission to Snapper Creek, Valazquez died on August 14, 1984, of septicemia as a result of malnutrition and the presence of numerous advanced bedsores.

   
   

5. While at the Respondent's facility, Valazquez did not receive proper care for his life-threatening condition in that

   he was kept in a hot room on plastic sheets and was not turned to relieve the body pressure which causes bedsores and keeps them from healing. Although the room in which Valazquez was kept had an air conditioner, it was not turned on by the Molinas because Valazquez did not request it. It is unreasonable, however, to expect an elderly man suffering from organic brain syndrome and dementia with serious medical problems to make such a request. Instead, the Respondents should have known that the heat of midsummer combined with his existing bedsores mandated that Valazquez be kept cool and comfortable.

   
   

6. Valazquez should not have been admitted to the Respondent's ACLF when he had any bedsores and once these bed- sores began to multiply on his body, Valazquez should have immediately been transferred to a skilled nursing facility. In failing to take appropriate steps to remove Valazquez from his facility as soon as the bedsores began to develop and in keeping him in a hot room on plastic sheets, the Respondent acted in a negligent manner which seriously affected the health, safety and welfare of Manuel Valazquez.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Paul Molina ACLF was a licensed ACLF pursuant to Chapter 400.401 et seq., which had reapplied for its ACLF license.

9. Chapter 400.402(2), Florida Statutes, defines ACLF as: "Adult congregate living facility,"

   hereinafter referred to as "facility" means any building or buildings, section of a building, or distinct part of a building, residence, private home, boarding home, home for the aged, or other place, whether operated for profit or not, which undertakes through its ownership or management to provide, for a period . . exceeding 24 hours, housing, food service, and one or more personal services for four or more adults, not related to the owner or administrator by blood or marriage, who require such services. A Facility offering

   personal services for fewer than four adults is within the meaning of this definition if it formally or informally advertises to or solicits the public for residents or referrals and holds itself out to the public to be an establishment which regularly provides such services. (emphasis supplied)

   
   

10. Chapter 400.402(7), Florida Statutes, defines neglect

    as:

    
    

    "Neglect" means to omit, forbear, or fail to exercise a degree of care and caution that a prudent person would deem essential to ensure the well-being of a resident, and by such omission, forbearance, or failure, to significantly impair or jeopardize the physical or emotional health of a resident.

    
    

11. Chapter 400.414, Florida Statutes, entitled "Denial, revocation, or suspension of license; imposition of administrative fine;" grounds, reads as follows:

    
    

    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 administrator is not of suitable character or competency, or that the owner lacks the financial ability, to provide continuing adequate care for residents, pursuant to the information obtained through s. 400.411, s. 400.417, or

       s. 400.434. (emphasis supplied)

       
       

12. Chapter 400.428(1)(a)(j), Florida Statutes, entitled

    "Resident Bill of Rights," reads as follows:

    
    

    No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States solely by reason of status as a resident of a facility. Every resident of a facility shall have the right to:

    
    

    (a) Live in a safe and decent living environment, free from abuse and neglect.

    
    

    * * *

    
    

    (j) Access to adequate and appropriate health care consistent with established and recognized standards within the community.

    
    

13. F.A.C., Chapter 10A-5.18, entitled "Resident Care Standards," reads in part as follows:

    
    

    1. Residents shall be admitted or allowed to remain in a facility under the following conditions:

       
       

       1. The admission of each resident to a facility shall be under the supervision of the operator or designee;

          
          

       2. No resident shall be held in a facility against his will;

          
          

       3. No resident shall be admitted to or allowed to remain in a facility who requires services beyond those the facility is licensed to provide. A facility may not provide nursing care except for a minor temporary illness, and for a period not to exceed seven consecutive days.

          
          

14. Further in Chapter lOA-5.18(4)(b)(d) reads in part as follows:

(4) Facilities shall offer close supervision and living conditions as

appropriate for residents. Appropriate supervision shall include, but shall not be limited to:

* * *

(b) Daily awareness of the general health, safety, and well-being of the individual by designated staff;

* * *

(d) Sufficient provision for contacting the resident's family, guardian, physician, or designated health services provider and noting in the resident's personal record any apparent significant deviations from his normal appearance or state of health and well-being. (emphasis supplied)

The Department has established by clear and convincing evidence that the negligence of the Respondent affected the health, safety and welfare of Manuel Valazquez. Accordingly, it is

RECOMMENDED:

That a final order be entered denying the Respondent's application for relicensure of the ACLF known as the Paul Molina ACLF.

DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida,

SHARYN L. SMITH

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 27th day of September, 1985.

COPIES FURNISHED:

Morton Laitner, Esquire

Dade County Health Department 1350 Northwest 14th Street Miami, Florida 33125

Theodore R. Dempster, Esquire One Financial Plaza

Suite 1318

Fort Lauderdale, Florida 33394

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 85-002120

Orders for Case No: 85-002120