STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

vs. ) CASE NO. 89-2572

) LOIS JEAN NASWORTHY, d/b/a ) CHRISTIAN HOME FOR THE )

ELDERLY, )

)

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 April 27, 1990, in Tampa, Florida.

APPEARANCES

For Petitioner: Edward A. Haman, Esquire

Senior Attorney Department of Health and

Rehabilitative Services

Office of Licensure and Certification 7827 North Dale Mabry Highway

Tampa, Florida 33614

For Respondent: Amelia M. Park and

William Park, Esquire 11311 North Armenia Avenue Tampa, Florida 33612

STATEMENT OF THE ISSUES

Whether or not Respondent failed to assure that a management staff person completed a required food service management training course and used proscribed bed side rails in an adult congregate living facility in violation of Section 400.419(3)(c), Florida Statutes.

PRELIMINARY STATEMENT AND BACKGROUND

On April 7, 1989, Petitioner, State of Florida, Department of Health and Rehabilitative Services, Office of Licensure and Certification, issued an Administrative Complaint seeking to levy a fine against Respondent, Lois Jean Nasworthy, d/b/a Christian Home for the Elderly, in the total amount of $500.00. The complaint allegations are based upon deficiencies alleged to exist during inspections of Respondent's facility in May 1987, January 1988, and February

1988. Respondent has challenged the intended levy and requested an administrative hearing pursuant to Section 120.57(1).

At the hearing, Petitioner called witnesses Tammy Smith and Sharon McCray and introduced ten exhibits which were received in evidence. Respondent Lois Jean Nasworthy Hagen and her husband, Patrick Hagen testified and introduced two exhibits which were received in evidence.

FINDINGS OF FACT

1. At times material hereto, Respondent has been licensed to operate an adult congregate living facility (ACLF) pursuant to Chapter 400, Part II, Florida Statutes and Chapter 10A-5, Florida Administrative Code.

   
   

2. On May 18, 1987, Diane Cruz, a representative of Petitioner, conducted an inspection of Respondent's facility. Ms. Cruz cited Respondent for failure to complete a food service management training course and the deficiency was memorialized in a written report of deficiencies received by Respondent on June 22, 1987. The survey report established a correction deadline of July 18, 1987.

   
   

3. On January 7, 1988, Tammy Smith, also a representative of Petitioner, conducted an inspection of Respondent's facility which inspection revealed that neither Respondent nor any other staff member or designated management person had completed a food service management training course.

   
   

4. Respondent completed a food service management training course on January 27, 1988, or approximately eight months after the correction deadline set forth by Petitioner in its May 18, 1987, inspection. Respondent did not request an extension of time to complete the requirement that a food service management training course be completed by a management employee.

   
   

5. During Ms. Smith's inspection of Respondent's ACLF on January 8, 1988, Smith observed both full and three-quarter side bed rails being used in the facility. This deficiency was discussed with Respondent and was noted in Smith's written inspection survey report which was received by Respondent on February 2, 1988. Immediate correction of the deficiency was required and was noted on the survey report. On February 25, 1988, Sharon McCray, Petitioner's investigator, conducted a routine follow up inspection of Respondent's facility. Ms. McCray's inspection revealed that a full bed rail was still in use on one of the beds and that a three-quarter bed rail was in the facility.

   
   

6. During the hearing, Respondent maintains that she was confused regarding the type of bed rail which is permitted in a ACLF and the circumstances under which a bed rail is permissible.

   
   

7. Petitioner presented several survey reports and each report contains an invitation to contact the surveyor in the event that Respondent or a health care provider had any question regarding any citations noted on the survey reports. Respondent never requested clarification of the noted deficiencies on any of the deficiencies for which she was cited in the survey reports. Also, Petitioner admits that she both obtained and read the pertinent rules and statutes relative to operation of ACLFs prior to submitting her application for licensure in 1986.

   
   

8. Respondent admits that the bed rails were in the facility at both the January and February, 1988 inspections by Petitioner.

9. During the hearing, Patrick Hagen testified that the bed with the full size rails was donated by a local health agency and that it was not in use in the ACLF. Additionally, Respondent introduced a copy of a physician's order for a bed rail for one resident dated June 19, 1987. Mr. Hagen immediately took the rails off the bed with the full rails on it however they continued to use the second bed with the three-quarter (approximate 30 inches long)1 rail.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The Petitioner has jurisdiction over Respondent's adult congregated living facility pursuant to Chapter 400, Part II, Florida Statutes and Chapter 10A-5, Florida Administrative Code.

    
    

12. Section 400.441, Florida Statutes authorizes Petitioner to promulgate rules for the operation of adult congregate living facilities.

    
    

13. Rule 10A-5.021(1)(n)16, Florida Administrative Code, provides "at least one management person from each facility preparing and serving food shall complete the food service management training course offered by the local public health unit". Respondent's failure to complete the food service management training course in a timely manner constitutes a violation of this provision.

14. Section 400.441(1)(h), Florida Statutes, provides in pertinent part: "the use of mechanical restraints is limited to half

    bed rails as prescribed and documented by the

    resident's physician."

    
    

15. Rule 10A-5.01A(2), Florida Administrative Code, provides:

    
    

    "physical restraints such as jacket restraints body or limb restraints or other similar restraints shall not be used. Full bed size rails should not be used. Half bed side rails may be used only with a written order of the resident's physician."

    
    

16. Respondent's failure to cease usage of the three-quarter bed rail after being so advised by Petitioner constitutes a violation of the above- referenced provisions. Although Respondent provided a physician's order for a bed rail for one resident, this does not justify as here, the use of a three- quarter bed rail within the facility.

    
    

17. Section 400.419(3)(c), Florida Statutes, authorizes the imposition of a civil penalty for violations which are not corrected within specified time frames. As noted above, Respondent failed to correct the noted deficiencies within the specified time frame and imposition of a civil penalty is therefore appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $500.00 payable to Petitioner within thirty days of entry of its Final Order.

DONE and ENTERED this 6th day of July, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1990.

Copies furnished to:

Edward A. Haman, Esquire Department of Health and Rehabilitative Services

7827 North Dale Mabry Highway Tampa, Florida 33614

Amelia M. Park, Esquire 11311 North Armenia Avenue Tampa, Florida 33612

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 89-002572

Orders for Case No: 89-002572