STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-7007

)

ELDER CARE, INC., d/b/a ) ELDER CARE RETIREMENT HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and on April 9, 1990, in Marion County, Florida, a formal hearing was held pursuant to the authority set forth in Section 120.57(l) Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

FOR PETITIONER: Frances S. Childers, Esquire

Department of Health and Rehabilitative Services

District III Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609

FOR RESPONDENT: Lon W. Walters, pro se

3223 West Forest Lake Circle Sarasota, Florida 33429

STATEMENT OF THE ISSUES

The issues for consideration here are those associated with an Administrative Complaint brought by the Petitioner against Respondent for certain alleged deficiencies related to the operation of the Respondent nursing home facility. Authority for this prosecution is set out in Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code.

PRELIMINARY STATEMENT

This action is premised upon the aforementioned Administrative Complaint which is referenced as PDRL No. I 89- 1120 ACLF. That action was brought against the Respondent on November 8, 1989, and according to the file, Respondent made a timely request for formal administrative hearing as received by Petitioner on November 20, 1989.

In support of its case, Petitioner called Robert Cunningham, a Human Services Program Analyst for the Petitioner, and offered two exhibits which were

admitted into evidence. Petitioner also sought official recognition of the Recommended and Final Orders in the case of Elder Care, Inc. of Maine d/b/a Elder Care Retirement Home, Petitioner, v. Department of Health and Rehabilitative Services, Respondent, DOAH Case No. 89-2058 and PDRL NO. I 89- 929. That recognition was given. Respondent presented Mr. Cunningham as its witness and offered the testimony of Lon Walters, co-owner of the Respondent corporation. Respondent's Exhibit 1 was denied admission.

A transcript was not prepared. The parties were afforded ten days to file proposed recommended orders. Petitioner availed itself of that opportunity.

Respondent did not. The fact-finding suggested in the proposed recommended order of Petitioner is commented on in an appendix to the Recommended Order.

FINDINGS OF FACT

1. Related to this case, Respondent was licensed by the Petitioner to operate an adult congregate living facility (ACLF) known as Elder Care Retirement Home, located in Ocala, Marion County, Florida. Lon W. Walters is president of that corporation and owns the corporation with his wife.

   
   

2. Petitioner, in accordance with Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code, has regulatory authority over the ACLF.

   
   

3. On November 8, 1988, Robert A. Cunningham, Human Services Program Analyst for Petitioner, performed the annual inspection of the subject facility as a prelude to relicensure. He found a number of deficiencies in the facility's operations. Four of those have relevance to this case.

   
   

4. Through the course of an exit interview conducted with Nancy Carter, who was the administrator at the ACLF and its agent, Respondent was made aware of the deficiencies. In her capacity Carter hired staff, reviewed and screened residents for admission and admitted those residents, supervised the staff, and was responsible for record keeping.

   
   

5. The deficiencies were that:

   
   

   1. Respondent had failed to provide or make available for review documentation that the facility administrator or his/her designee had completed a

      Core training program.

   2. Respondent failed to assure that a sufficient number of staff members were certified in an approved first aid course.

   3. Respondent failed to provide documentation that staff members were free from apparent signs and symptoms of communicable disease.

   4. Respondent failed to assure that all residents' files contained complete health assessment forms.

   
   

6. The items that were discussed with the administrator were not confirmed by any written submission to the administrator on that occasion. The record does rot reflect to what extent Carter recorded information about the subject deficiencies and others in an attempt to prepare responses to those problems. She did tell Cunningham that Mr. Walters was going to take the Core training and there was a negotiation or discussion about the deadlines for that training and other items that needed to be corrected. Typically, as many as sixty days may

   be allowed for a facility to establish necessary corrections. On November 8, 1988, Cunningham spoke to Walters about the Core training and the due date for completion of that training, and it was agreed that the due date would be February 28, 1989. Pursuant to the discussion in the exit conference, arrangements were made for a January 18, 1989, deadline to complete corrections in the three other deficiency areas.

   
   

7. There was some delay in preparing the written summary of findings made by Mr. Cunningham. Nonetheless, those findings were committed to writing by a report of January 23, 1989, associated with the relicensure survey. A transmittal letter which was sent out to the Respondent included a document entitled "Classification of Deficiencies for ACLF Licensure Requirements" which set out the four deficiencies in question and others. It also set forth the correction deadlines and included a citation to the appropriate administrative rules that had allegedly been violated by the deficiencies.

   
   

8. Based upon the observations by Mr. Cunningham at the time of the November 8, 1988, inspection and as confirmed by the classification report of January 23, 1989, at the time the inspection was conducted neither the administrator nor a designee had taken the necessary Core training. This point is conceded in remarks by Mr. Walters in his testimony at hearing. Likewise, the records of the facility on the date of inspection did not demonstrate that one staff member at the facility on all shifts had necessary first aid training in an approved course. The records available on November 8, 1988, did not reveal that all staff persons were free from communicable disease as documented by a physician or ARNP. This pertained to nine staff persons. Finally, on the inspection date the facility did not have records on file for two residents indicating that a medical examination of those residents had been completed within sixty days prior to the admission of those residents to the facility or that a health assessment form had been completed within thirty days after admission of those two residents.

   
   

9. Cunningham returned to the facility on January 25, 1989. At that time he discovered that none of the four items had been corrected. It should be mentioned that the item pertaining to Core training was not due for correction by that date. In a conversation with Mr. Walters on January 25, 1989, Walters reported that he had not received a copy of the statement of deficiencies that had been issued on January 23, 1989. Under those circumstances, Cunningham told Walters that he would be back at a later date to make a further inspection to ascertain whether the corrections had been effected. Nonetheless, he reminded Walters that the due date for correcting some items had expired.

   
   

10. Petitioner's Exhibit 1 admitted into evidence is a copy of a statement of acknowledgment of receipt of the report that was issued on January 23, 1989. It is signed by Mr. Walters and dated January 31, 1989.

    
    

11. On February 15, 1989, Cunningham returned to the facility and through his inspection discovered that none of the four items in question had been corrected. In effect, between November 8, 1988, and February 15, 1989, Respondent had failed to correct the problems. More significantly, it had failed to correct the problems by the deadlines to which it had agreed, excepting the Core training.

    
    

12. By way of history, on December 9, 1987, a relicensure inspection was performed at the facility, and it was discovered that a resident within the facility had been placed there without the benefit of an examination to ascertain whether that person was free from signs of infectious disease. This

    led to an administrative complaint, a formal hearing, a recommended order, and final order, fining this facility in the amount of $150, in the aforementioned DOAH Case NO. 89-2058.

    
    

13. Based upon the four deficiencies that were uncorrected on February 15, 1989, the Administrative Complaint which is PDRL No. I 89-1120 ACLF was drawn.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this dispute in accordance with Section 120.57(1), Florida Statutes.

    
    

15. This case is one in which the Petitioner seeks to impose an administrative fine against Respondent. Therefore, it has the burden to establish by a preponderance of evidence that the violations have occurred.

    
    

16. Section 400.419(3), Florida Statutes, sets forth a classification scheme for violations associated with the operation and maintenance of an ACLF. It suggests the range of appropriate fines if violations are found. The Administrative Complaint identifies the proposed limits on those fines, which fall below the maximum authorized by law. Those amounts are $250 for each violation. Class III violations allow for fines from $100 to $500. Unclassified violations allow for fines not to exceed $500 per Section 400.419(4), Florida Statutes.

    
    

17. Rule 10A-5.019(1), Florida Administrative Code, establishes the requirements for Core training. Although Respondent, in the person of its administrator or some designee for the administrator, had not completed its Core training by the time of the reinspection on February 15, 1989, by the terms of the agreement with Petitioner that training was not to be completed until February 28, 1989. Taking this into account, and in view of the allegations set forth in the Administrative Complaint which speak of problems with uncorrected deficiencies as of February 15, 1989, Petitioner has failed to prove that there was a violation through failure to make timely correction of this deficiency. Carter told Cunningham that Walters was to take the Core training. The fact that Walters admits that this Core training had not been accomplished since the time of the citation is not an item about which the Complaint concerns itself. The Complaint speaks in terms of the problems that existed at the time of the follow-up inspection on February 15, 1989, which was before the deadline for completing the Core training. That deadline was February 28, 1989. Moreover, in terms of the notice that was given concerning the administrative charges, on August 18, 1989, a letter had been sent out directed to Mr. Walters attaching the classification of deficiencies for ACLF licensure requirements (form) showing that all corrections had been made effective April 12, 1989. This was corroborated by Mr. Cunningham's testimony. This would lead the Respondent to believe that there was no intention to speak to the circumstance beyond February 15, 1989, and certainly not beyond April 12, 1989.

    
    

18. Respondent had not timely corrected the deficiency as of February 15, 1989, related to assurance that there was at least one staff member within the facility at all times who had certification in an approved first aid course, and this violated Rule 10A-5.019(5)(f), Florida Administrative Code, and subjected the Respondent to the monetary penalty under Section 400.419(3), Florida Statutes. This is a Class III deficiency and the fine of $250 is appropriate.

19. On February 15, 1989, reinspection revealed that the Respondent had failed to correct the deficiency within the time prescribed related to assurance that members of the staff were free from apparent signs and symptoms of communicable disease in violation of Section 10A-5.019(5)(g), Florida Administrative Code. This is a Class III deficiency. A fine of $250 is appropriate.

    
    

20. On February 15, 1989, at the time of reinspection it was revealed that the Respondent had failed to timely correct the deficiency of assuring that the necessary health assessment forms were available for residents. This was contrary to the requirements of Rule 10A-5.018l(1)(c)(b)(c) and (d), (2)(a) and (b), and (3)(a), Florida Administrative Code, and Section 400.426(4) through (6), Florida Statutes. This is a Class III deficiency. A $250 fine is appropriate.

RECOMMENDATION

Based upon a consideration of the facts found and the conclusions of law reached, it is recommended that a Final Order be entered which imposes an administrative fine against the Respondent in the amount of $750, for the three violations that have been proven, and which dismisses any action against the Respondent for alleged failure to complete the Core training program.

DONE and ENTERED this 9th day of May, 1990, at Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1990.

APPENDIX TO RECOMMENDED ORDER

Petitioner's proposed facts are commented on as follows:

Paragraphs 1-3 are subordinate to facts found with the exception of the last sentence within paragraph 3 which is not necessary to the resolution of the dispute.

Paragraphs 4-7 are subordinate to facts found.

Paragraph 8 is contrary to facts found in that the obligation to take the Core training between November 8, 1988, and February 15, 1989, was not incumbent upon the Respondent.

Paragraphs 9 through 14 are subordinate to facts found.

COPIES FURNISHED:

Frances S. Childers, Esq. Department of Health and

Rehabilitative Services District III Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609

Lon W. Walters

3223 West Forest Lake Circle Sarasota, Florida 33429

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 89-007007

Orders for Case No: 89-007007