Judges: ROBERT E. MEALE
Agency: Agency for Health Care Administration
Latest Update: Feb. 23, 1988
Summary: $150 fine for failure to provide staff member with first aid $100, fine for staff member for absence of communicable disease.
87-5367STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 87-5367
)
NANCY MCDANIEL, ) d/b/a PEOPLE'S PALACE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held on February 11, 1988, in Merritt Island, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
The representatives of the parties were as follows: For Petitioner: Lynn Porter-Carlton, Esquire
HRS District VII Legal Counsel
400 West Robinson Street, Suite 911 Orlando, Florida 32801
For Respondent: Nancy McDaniel, pro se
85 Carib Drive
Merritt Island, Florida 32952 BACKGROUND
On November 16, 1987, Petitioner served Respondent with an Administrative Complaint alleging the existence of two Class III violations at Respondent's adult congregate living facility known as People's Palace and located at 85 Carib Drive, Merritt Island, Florida. The alleged violations, which existed at the time of an initial inspection on October 8, 1986, and a follow-up inspection on February 2, 1987, consisted of the failure of Respondent to provide at least one staff member at the facility at all times with certification in an approved first-aid course and the failure of Respondent to maintain or produce documentation that a fulltime employee at the facility was free of communicable diseases. Petitioner sought a civil penalty of $150 for each violation.
By an undated written statement, Respondent requested a formal hearing on disputed questions of fact.
At the hearing, Petitioner presented one witness. Respondent testified in her own behalf and presented no other witnesses. Petitioner offered into evidence two exhibits, and Respondent offered into evidence three exhibits. All were admitted.
Neither party filed a proposed recommended order.
FINDINGS OF FACT
Respondent is licensed to operate an adult congregate living facility known as People's Palace, which is located at 85 Carib Drive, Merritt Island, Florida.
On October 8, 1986, James L. Haas, Human Services Program Analyst for Respondent, conducted an inspection of Respondent's facility.
As a result of this inspection, Mr. Haas reported numerous violations, including 11 Class III violations. He re- inspected the facility on February 2, 1987, and reported that three Class III violations remained uncorrected. The relevant Class III violations were: a new live-in staff member had not had a first-aid course and the same employee did not have a medical statement certifying that she was free of any communicable diseases.
Mr. Haas discussed the violations with Respondent at the time of the October 8 inspection. They agreed that she would have until November 8, 1986, to correct the violations that were the subject of the Administrative Complaint.
The position in question was that of a live-in housekeeper who was the only caretaker of the adult residents, except when Respondent took her place on days off. The housekeeper at the time of the October 8 inspection quit shortly thereafter. Respondent employed approximately three other persons as housekeeper between October 10, 1986, and February 2, 1987.
At the time of the February 2 re-inspection, the housekeeper was Betty Casper, who had started working at the facility one day earlier. Like the housekeeper present on October 8, 1986, Ms. Casper lacked certification in first aid and documentation that she was free of any communicable diseases.
Respondent was unaware whether the other housekeepers in the interim had had these certifications, but admitted that the housekeeper on October 8, 1986, lacked them.
Noting that the two Class III violations had not been timely corrected, Mr. Hess initiated the procedure that resulted in a Recommendation for Sanction on March 16, 1987. In the Recommendation for Sanction, Mr. Haas described the serious impact of these deficiencies. The absence of a staff member with qualification in first aid could result in a resident receiving improper or no treatment in the event of an emergency. A staff member having a communicable disease exposed residents to the possibility of contracting a disease from the employee.
Respondent testified that there was considerable turnover of housekeepers. She testified that the eight-hour first-aid course necessary for first aid certification was infrequently available. Ms. Casper was ill when the course was offered in March, 1987, and was only able to attend the course on September 1, 1987, at which time she was certified. On February 24, 1987, Ms. Casper obtained certification that she was free of communicable diseases.
CONCLUSIONS OF LAW
The Division of Administrative hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes.
Petitioner is responsible for the licensing, regulation, and inspection of adult congregate living facilities. Sections 400.407, 400.419, 400.434, and 400.441, Florida Statutes.
The administrator of each adult congregate living facility must assure that there is at least one staff member within the facility at all times who has a certification in an approved first-aid course. Sections 400.419(3)(c) and 400.441, Florida Statutes; Rule 10A-5.019(5)(f), Florida Administrative Code.
The administrator of each adult congregate living facility must assure that the staff is free of communicable diseases. Sections 400.419(3)(c) and 400.441, Florida Statutes; Rule 10A-5.019(5)(g), Florida Administrative Code.
The civil penalty for each Class III violation is a penalty of not less than $100 and not more than $500. Section 400.419(3)(c), Florida Statutes.
There is no dispute that Respondent on October 8, 1986, and February 2, 1987, failed to meet the requirement that she maintain certification that her housekeeper was certified in an approved first-aid course. Rapid turnover in personnel is no defense for Respondent's failure to maintain proper first-aid certification.
Unlike the rule with respect to first aid, the rule with respect to communicable diseases requires only that the administrator assure that the employees are free of such diseases. However, Petitioner in effect requested evidence of such assurance regarding the housekeeper on October 8, 1987, and February 2, 1987. Respondent was unable to provide such evidence at those times. In mitigation, Ms. Casper was certified free of such diseases three weeks after one inspection; it is a fair inference that she was free of such diseases three weeks earlier.
Based on the foregoing, it is hereby
RECOMMENDED that Petitioner enter a Final Order imposing an administrative fine on Respondent in the amount of $150 for failure to provide at least one staff member at the facility at all times with certification in an approved first-aid course and $100 for failure to maintain or produce documentation that a fulltime employee at the facility was free of communicable diseases.
DONE and RECOMMENDED this 23rd day of February, 1988, in Tallahassee, Florida.
ROBERT E. MEALE
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 23rd day of February, 1988.
COPIES FURNISHED:
Lynn Porter-Carlton, Esquire HRS District VI Legal Counsel
400 West Robinson Street Suite 911
Orlando, Florida 32801
Nancy McDaniel People's Palace
85 Carib Drive
Merritt Island, Florida 32952
John Miller General Counsel
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Sam Power Clerk
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Docket for Case No: 87-005367
Orders for Case No: 87-005367
| Issue Date |
Document |
Summary |
|
Mar. 10, 1988 |
Agency Final Order
|
|
|
Feb. 23, 1988 |
Recommended Order
|
$150 fine for failure to provide staff member with first aid $100, fine for staff member for absence of communicable disease.
|
