STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1435

)

LILLIAN MAE GILPIN d/b/a )

GILPIN REST 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 August 13, 1986, at Clearwater, Florida.

APPEARANCES

For Petitioner: Carol M. Wind, Esquire

Department of Health and Rehabilitative Services

2255 East Bay Drive Clearwater, Florida 33518

For Respondent: Michael M. Hanson, Esquire

2739 U.S. 19, Suite 201

Holiday, Florida 33590

By administrative complaint dated March 13, 1986, Department of Health and Rehabilitative Services (DHRS), Petitioner, seeks to revoke the license of Lillian Mae Gilpin d/b/a Gilpin Rest Home, Respondent, as an Adult Congregate Living Facility (ACLF). As grounds therefor, it is alleged that at a follow-up visit on February 3, 1986, some fifteen deficiencies were noted with eight of these violations listed as new offenses.

At the hearing Petitioner called two witnesses, Respondent called three witnesses and three exhibits were admitted into evidence. Proposed findings have been submitted by the parties. Treatment accorded those proposed findings are contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Respondent, ACLF, was inspected May 5, 1985, and some 29 Class III deficiencies were noted and a schedule of correction was established to have these deficiencies corrected by June 6, 1985.

2. At a follow-up visit July 11, 1985, some 19 of these deficiencies had been corrected while 10 remained uncorrected. As a result of failure to timely correct these deficiencies Respondent was assessed a $1000 fine which was paid.

   
   

3. A subsequent inspection of Respondent's facility was conducted on February 3, 1986, with the following previously reported violations uncorrected:

   
   

   1. No personnel policies and work assignments.

   2. No written work schedule for employees.

   3. No assurance staff trained in providing personal hygiene care.

   4. Written job descriptions not available for review.

   5. Employees not furnished written policies governing conditions of employment.

   6. Strong urine odor in rear bedroom.

      
      

      Additionally, eight new Class III deficiencies were noted with four classified as food service standards, three physical plant standards and one fire safety standard. Respondent submitted a schedule to correct these deficiencies (Exh.

      3) indicating all deficiencies corrected prior to 2/27/86. No reinspection has been conducted by Petition to confirm these Class III deficiencies have been corrected.

      
      

4. New discrepancies noted on February 3, 1986, included menu not posted where it could easily be seen by residents, menu not corrected as served, oven door broken off, potentially hazardous food at room temperature in kitchen, screen on front door torn, clothes closet door off track, vanity in bedroom had part of facing missing, exposed wiring in living room area, shower head missing in one bathroom, and two ceiling fans serviced by extension cord wiring. The menu was posted on the side of the refrigerator where it had been kept for three years and was readily visible to residents. Respondent testified the menu was corrected as served on the back of the menu, but the inspector contended such corrections must be on a separate paper. This testimony was not rebutted. The inspection on February 3, 1986, occurred shortly after the breakfast meal was served and all of the food had not been replaced in the refrigerator. This included one can of fruit that was the subject of this discrepancy. No inquiry was made as to how or when the screen was torn on the front door. Exhibit 3 indicates the deficiency was repaired February 10, 1986. All of these discrepancies were corrected by February 21, 1986 (Exh. 3). All discrepancies at any inspection relating to fire safety were timely corrected by Respondent.

   
   

5. Respondent facility is operated by Mrs. Gilpin, her husband and adult daughter, who comprise the employees of the facility. Each testified that he/she has all of the certifications required to work in an ACLF and that each job description was included in the daily work schedule that was posted. It appears from the testimony that at times other employees have been utilized and Ms. Gilpin stated they fill out time cards showing time they commenced and stopped work and that their work schedule is included in the cleaning schedule they carry out.

   
   

6. Respondent explained the strong urine odor as coming from the room occupied by a patient with a urostomy early in the morning before the room was cleaned. The death of this person subsequently solved the odor problem.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 400.414, Florida Statutes provides in pertinent part:

   
   

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

      
      

   2. Any of the following actions by a facility or its employees shall be grounds for action by the department against a facility:

      1. An intentional or negligent act seriously effecting the health, safety, or welfare

   of a resident of the facility.

   
   

8. Section 400.419, Florida Statutes, defines the three classes of violations from the most serious, I, to the less serious, III. Subsection (3)(c) thereof provides:

   
   

   Class III violations are those conditions or occurrences related to the operation and maintenance of a facility or the personal care of residents which the department deter- mines indirectly or potentially threaten the physical or emotional health, safety or security of facility residents, other than Class I or II violations. A Class III viola- tion is subject to a civil penalty of not less than $100 and not exceeding $500 for each violation. A citation for Class III violations shall specify the time within which the violation is required to be cor- rected. If a Class III violation is correct- ed within the time specified, no civil penal- ty may be imposed, unless it is a repeated offense.

   
   

9. It is clear that Petitioner failed to comply with the above quoted provision following the February 3, 1986 inspection with respect to specifying the time within which the eight new violations were to be corrected. In view of Respondent's testimony that all of these violations were promptly corrected, no further action regarding these violations may be taken.

   
   

10. Those violations carrying forward from the May 6, 1985 inspection and the July 11, 1985 follow-up visit present a different problem. Initially it is noted that for failure to correct those violations within the time specified, Respondent was fined $1000 and thereby punished for those violations.

    
    

11. The February 3, 1986 inspection revealed some of these violations had not been corrected, however, Respondent contests this finding. If these are repeat offenses the facility may be punished without being provided additional time to correct the violation.

    
    

12. Here Petitioner seeks to revoke the license of Respondent. To do so the violations must, as above noted, constitute an intentional or negligent act

    seriously affecting the health, safety, or welfare of a resident of the facility. It is difficult to understand how the health and safety of residents of an ACLF with 6 or 8 residents and a staff comprising the owner, her husband and adult daughter, can be seriously affected by reason of inadequate written work schedules and work assignments, without written policies governing conditions of employment and without written job descriptions available for review. Respondent testified that one employee had taken her written job description home to study and had not brought it back at the time of the February 3, 1986 inspection, and that job descriptions had been prepared and all employees fully understood their duties and assignments.

    
    

13. The other uncorrected Class III violation still present on February 3, 1986, related to the strong odor from one bedroom. Respondent explained the source of that odor even though such an excuse is not acceptable.

    
    

14. None of those violations or the combined violations constitute intentional or negligent acts seriously affecting the health, safety, or welfare of a resident of the facility and do not constitute adequate grounds for revocation of licensure. Petitioner in this Administrative Complaint seeks only revocation of Respondent's license. Since the evidence, even in the light most favorable to Petitioner, i.e., all repeat violations in Exhibit 1 for February 3, 1986, were proven, do not constitute acts seriously affecting the health, safety or welfare of the residents. It is

RECOMMENDED that a Final Order be entered finding the alleged violations do not constitute conduct justifying revocation of the license of Lillian Mae Gilpin d/b/a Gilpin Rest Home and that these proceedings be dismissed.

ENTERED this 15th day of September 1986, in Tallahassee, Florida.

K. N. AYERS 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 15th day of September 1986.

APPENDIX

Treatment accorded Petitioner's Proposed Findings:

1. By the petition of hearing Respondent acknowledges jurisdiction of Petitioner over her ACLF.

2. Same as 1 above.

3. Included in HO #3.

4. Included in Administrative Complaint.

5. Included in HO #3.

6. Included in HO #4.

7. Included in HO #3.

8. Included in Administrative Complaint.

Treatment accorded Respondent's Proposed Findings:

1. By the petition of hearing Respondent acknowledges jurisdiction of Petitioner over her ACLF.

2. Same as 1 above.

3. Included in HO #1.

4. Included in HO #2 and 3.

5. Included in HO #3 and 4.

6. Included in HO #3.

7. Included in HO #3.

8. Included in HO #4.

9. Included in HO #3.

10. Included in HO #2.

11. Included in Administrative Complaint.

12. Included in HO Conclusions of Law.

COPIES FURNISHED:

Carole M. Wind, Esquire Department of Health and

Rehabilitative Services 2255 East Bay Dr.

Clearwater, Florida 33546

Michael M. Hanson, Esquire

2739 U.S. Highway 19, Suite 201

Holiday, Florida 33590

Mr. William Page, Jr. Secretary

1323 Winewood Blvd.

Tallahassee, Florida 32301

Docket for Case No: 86-001435

Orders for Case No: 86-001435