STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EILEEN'S GUEST HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3881

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4640C

)

C. G., )

)

Respondent. )

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4645C

)

1. K. R., )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, final hearing in the above-styled cases, which were consolidated for hearing, was held on March 22, 1990, in Orlando, Florida, before Robert D. Meale, Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   For the Department of Health and Rehabilitative Services: Linda L. Parkinson, Attorney

   Department of Health and Rehabilitative Services

   400 West Robinson Street, Suite 701 Orlando, FL 32801

   For Eileen's Guest Home, C. G., and. J. K. R.:

   
   

   Jonathan S. Grout

   Dempsey & Goldsmith, P.A.

   P.O. Box 10651 Tallahassee, FL 32302

   
   

   STATEMENT OF THE ISSUES

   
   

   The issues in these cases are whether the natural persons named as Respondents are guilty of neglect of an aged person and, if so, whether Eileen's Guest Home is entitled to renewal of its license as an adult congregate living facility.

   
   

   PRELIMINARY STATEMENT

   
   

   By letter dated June 22,, 1989, the Department of Health and Rehabilitative Services informed Eileen's Guest Home that its request to renew its license was denied due to the confirmed neglect by lack of supervision during April, 1989, of four residents by C. G., the owner of the facility.

   
   

   By Petition for Formal Administrative Hearing dated July 5, 1989, Eileen's Guest Home requested a formal hearing.

   
   

   By letter dated August 11, 1989, the Department of Health and Rehabilitative Services informed C. G. that, after reviewing its files, it was denying the request to amend or expunge the confirmed report of abuse or neglect naming C. G. as the perpetrator. By letter of same date, the Depar ment of Health and Rehabilitative Services informed J. K. R. of the same decision as to her.

   
   

   Both individuals filed Petitions for Formal Administrative Hearing on August 18, 1989.

   
   

   All parties consented to the consolidation of the three cases at the beginning of the final hearing. At the hearing, the Department of Health and Rehabilitative Services called four witnesses and offered into evidence two exhibits. Eileen's Guest Home, C. G., and J. K. R. called one witness and offered into evidence two exhibits. All exhibits were admitted into evidence. Eileen's Guest Home, C. G., and J. K. R. were given leave to file the deposition of the testimony of J. K. R. following the hearing, but later indicated that they had decided not to do so.

   
   

   No transcript was ordered. Eileen's Guest Home, C. G., and J. K. R. filed a proposed recommended order. Treatment accorded their proposed findings is detailed in the appendix.

   
   

   FINDINGS OF FACT

   
   

   1. C. G. is the owner and operator of Eileen's Guest Home, which has been licensed as an adult congregate living facility for six to seven years. C. G. has a bachelors degree with significant coursework in public health.

      
      

   2. During the relevant time period, J. K. R. was a part-time employee of Eileen's Guest Home and was not a caregiver. She worked only about seven hours a week, performing housekeeping tasks such as mopping floors, hanging laundry, and putting away groceries. At the time, J. K. R. was 20 years old.

   3. Eileen's Guest Home is located on Haben Drive in a residential neighborhood in Orlando. A lake, which is surrounded by a steep embankment, is located in the neighborhood. Virginia Avenue, which is heavily travelled, crosses Haben Drive about 500 yards from the facility. A short distance from this intersection is the intersection of Virginia Avenue and U.S. Route 17-92, which is very busy. A lumber yard in the vicinity of this intersection is directly behind a row of bushes that are located about seven houses down from the facility.

      
      

   4. At all relevant times, Eileen's Guest Home housed eight residents. Four of these residents are mentally confused to a substantial degree and require monitoring. Two of these residents, both of whom have Alzheimer's disease, wandered from the facility without permission or supervisioin in February and April, 1989.

      
      

   5. C. M., who had been admitted to the facility in December, 1984, wandered from Eileen's Guest Home during the daytime on February 4, 1989. C. M. became disoriented and requested assistance from a neighbor who lives seven houses from the facility. Directly across from this house, which is only four houses down from the steep embankment leading to the lake, is the row of bushes screening the neighborhood from the lumberyard. With the neighbor's help, C. M. returned to the facility without incident a short time after her departure. At the time, C. M. was 87 years old. This is the only time that C.M. wandered from the facility.

      
      

   6. N. B., who was 77 years old at the time and suffers from Alzheimer's disease, was admitted to Eileen's Guest Home on April 19, 1989. The owner of the Alzheimer's daycare center that N. B. attended told C. G. that N. B. needed a place to live for about one week while her husband was being hospitalized. The daycare center owner told C. G. that N. B. had Alzheimer's disease, but did not mention any tendency to wander. C. G. agreed to take N.B.

      
      

   7. Sometime during the afternoon of April 20, N. B. left the house without permission or supervision. C. G. failed to notice N. B.'s absence until after 5:30 p.m. when C. G. went to find N. B. to prepare her for bed.

      
      

   8. At the time of N. B.'s departure, C. G., J. K. R., C.G.'s 18-year-old daughter, and M. C., a 31-year-old employee, were working at the facility.

      
      

   9. N. B. wandered through the neighborhood for at least one hour before she found assistance. At about 6:30 p.m., N. B. walked up to the home of the same neighbor who had assisted C. M. several weeks earlier. She approached the neighbor's home from the direction of the lake, which is not in the direction of Eileen's Guest Home. She requested help to find her way home. As the neighbor walked N. B. to another neighbor's house, C. G. and J. K. R. drove up in C. G.'s car. With the help of a young man who had been water skiing at the lake and lived in the back of the facility premises, C. G. brought N. B. back to the facility.

      
      

   10. Neither of the neighbors reported seeing any marks on N. B. However, she had suffered bruises under her left eye, upper right chest, and left hand and thumb, plus lacerations under the left eye and near the left elbow, on the evening of April 19 when facility employees tried to get her to go to bed.

   11. Following the incident on April 20, C. G. contacted the owner of the Alzheimer's daycare center and requested that she find another facility for N.

       B. Told that no other facilities were available, C. G. took no other action except to explain to N. B. that her husband was in the hospital and she should not leave the house.

       
       

   12. C. G.'s failure to take corrective action after N. B.`s first escape is exacerbated by the fact that the doors to the facility were not secure. The back door, which either had no alarm or had an alarm that was never operative, was normally left unlocked, apparently for the convenience of several persons living in the back. The front door had an alarm, but the alarm was broken for about three weeks in April, beginning a few days prior to the arrival of N. B.

       
       

   13. On Sunday, April 23, 1989, N. B. wandered from the facility a second time without supervision or permission. At the time, C. G. and her daughter were the only employees present. Never realizing that N. B. had escaped, C. G. received a telephone call from a neighbor informing her that he had N. B. at his home, which was not located on the same street as the facility. N. B. was returned to the facility without incident.

       
       

   14. The following Sunday, April 30, N. B. wandered from Eileen's Guest Home for a third time without supervision or permission. Again, only C. G. and her daughter were present to care for the residents. A neighbor summoned a police officer, who returned N. B. to the facility.

       
       

   15. N. B. stayed at the facility for about six more weeks. During that time, she did not wander off the premises without supervision.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Sections 120.57(1) and 415.103(3)(d)5., Florida Statutes.

       
       

   17. As required by law, Petitioner maintains a registry of identifying information relating to confirmed reports of abuse, neglect, or exploitation of aged persons or disabled adults. Section 415.103(3), Florida Statutes.

       
       

   18. The alleged perpetrator in a confirmed case has the right to contest the report. In such cases, Petiticner must prove by a preponderance of the evidence that the alleged perpetrator committed the abuse or neglect. Section 415.103(3)(d)5., Florida Statutes.

   19. An "aged person" is a person at least 60 years old who is suffering from the infirmities of

       aging as manifested by organic brain damage, advanced age, or other physical, mental, or emotional dysfunctioning to the extent that the person is impaired in his ability to adequately provide for his own care or

       protection. Section 415.102(3), Florida Statutes.

       
       

   20. A "caregiver" is a person "responsible for the care of an aged person or disabled adult" and includes "personnel of adult congregate living facilities

       . . . who have . . . been entrusted with the care of an aged person or disabled adult on a temporary or permanent basis." Section 415.102(4), Florida Statutes.

   21. "Neglect"

       
       

       means the failure or omission on the part of the caregiver of an aged person or disabled adult to provide the care and services necessary to maintain the physical and mental health of an aged person or disabled adult, including, but not limited to, . . . supervision . . . that a prudent person would deem essential for the well-being of an aged person or disabled adult.

       
       

       Section 415.102(13), Florida Statutes.

       
       

   22. In this case, C. M. and N. B. are aged persons. C. G. is a caregiver.

       J. K. R. is not a caregiver because she performed housekeeping tasks that were unconnected with the care of the residents.

       
       

   23. Under the circumstances, the repeated escapes of N. B. constitute neglect by C. G.

       
       

   24. The remaining issue is whether the license of Eileen's Guest Home should be renewed. Section 400.414(2), Florida Statutes, provides that the Department of Health and Rehabilitative Services may deny, revoke, or suspend a license or impose an administrative fine if it proves by a preponderance of the evidence that its actions are warranted. Specific grounds for discipline include:

       
       

       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 of Health and Rehabilitative Services] that the facility owner or administrator is not of suitable character and competency .

          * * *

          (e) A confirmed report of abuse, neglect, or exploitation . . ., which has been upheld following a chapter 120 hearing . . . where the perpetrator is an employee . . . or owner, . . . and the administrator has not taken action to remove the perpetrator. A perpetrator may seek an exemption . . . No administrative action may be taken against the facility if the perpetrator is granted an exemption.

          
          

   25. Even assuming that this case is properly treated as a license revocation proceeding rather than a license renewal proceeding and even applying the evidentiary standard of clear and convincing evidence, Eileen's Guest Home is unfit for licensure as an adult congregate living facility. The repeated negligence of the owner of the facility seriously affected the safety and welfare of a resident. The facts of the case cast doubt upon C. G. `s competence to operate an adult congregate living facility. Upon issuance of a

final order confirming the report of neglect, the third-cited basis for discipline exists, as the owner/administrator is the perpetrator and has not received an exemption.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order confirming the report of neglect of an aged person by C. G., expunging the confirmed report of neglect of an aged person by J. K. R. and expunging her name as a perpetrator from the registry, and revoking the license of Eileen's Guest Home.

ENTERED this 16th day of April, 1990, in Tallahassee, Florida.

ROBERT E. MEALE

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 16th day of April, 1990.

APPENDIX

Treatment Accorded Proposed Findings of Eileen's Guest Home, C.G., and J. K. R.

1. First two sentences adopted. Remainder rejected as irrelevant.

2-6. Adopted or adopted in substance.

7. Rejected as unnecessary.

8-10. Adopted.

1. First sentence adopted. Second sentence rejected as against the greater weight of the evidence. Third sentence adopted except as to "despite" clause. Fourth sentence adopted. Fifth sentence rejected as speculation.

   
   

2. Adopted.

   
   

3. Adopted in substance.

   
   

4. First sentence rejected as subordinate. Second sentence rejected as unsupported by the greater weight of the evidence, although there was no evidence of other incidents of wandering.

   
   

5. First two sentences adopted. Remainder rejected as irrelevant.

6. Rejected as against the greater weight of the evidence.

17-19. Rejected as irrelevant.

1. Rejected as recitation of testimony and irrelevant.

   
   

2. Rejected as recitation of testimony and against the greater weight of the evidence.

   
   

3. Rejected as hearsay and against the greater weight of the evidence.

23-24. Adopted.

25. Rejected as unsupported by the greater weight of the evidence.

26-27. Rejected as against the greater weight of the evidence.

28. Adopted.

COPIES FURNISHED:

Jonathan S. Grout

Dempsey & Goldsmith, P.A.

P.O. Box 10651 Tallahassee, FL 32302

Linda L. Parkinson, Attorney

Department of Health and Rehabilitative Services

400 West Robinson Street, Suite 701 Orlando, FL 32801

Gregory L. Coler, Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Miller, General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Sam Power, Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Docket for Case No: 89-003881

Orders for Case No: 89-003881