STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0296

) WILLIE MAE JOHNSON d/b/a LEISURE ) LIVING RETIREMENT HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 8, 1990, a formal administrative hearing was held in this case in Bartow, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward A. Haman, Esquire

Department of Health and Rehabilitative Services

Office of Licensure and Certification

7827 North Dale Mabry Highway Tampa, Florida 33614

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should fine the Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, based on an Administrative Complaint that alleges that ten Class III deficiencies have persisted despite notice of the deficiencies and of the requirement that they be corrected.

PRELIMINARY STATEMENT

On or about November 21, 1989, HRS served on the Respondent an Administrative Complaint, PDRL NO. I 89-1134 ACLF. The Administrative Complaint alleges that ten Class III deficiencies observed during a survey of the Respondent's facility of January 9, 1989, were not corrected by a subsequent date by which the Respondent had agreed to make the corrections. The Administrative Complaint seeks to impose a fine of $250 per deficiency, for a total of $2500 in fines. The Respondent denied some of the allegations and requested a formal administrative proceeding.

When neither party responded to the Initial Order issued by the Division of Administrative Hearings, the case was scheduled for hearing by Notice of Hearing issued on February 20, 1990. On May 7, 1990, HRS filed a Request for Continuance, which was denied. 1/

At the final hearing, HRS appeared through counsel and presented the testimony of two witnesses and introduced one exhibit in evidence. Neither the Respondent nor anyone on her behalf appeared at the hearing.

FINDINGS OF FACT

1. The Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, is licensed to operate Leisure Living Retirement Home, 401 S.E. 9th Avenue, Mulberry, Florida, as an adult congregate living facility (ACLF) under Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code.

   
   

2. On January 9, 1989, the day of an HRS survey of the Respondent's ACLF, the following Class III deficiencies, among others, were present:

1. The facility did not have on its staff at all times at least one staff person with training in an approved first aid course, and there was no evidence that all staff were free of communicable disease.

2. Daily records of supervised self- administered medications had not been kept for some residents since 1/3/89. Others showed the medications had been logged sporadically, while one medication, Inderol

   10 mg, had never been logged. Because of this haphazard system, there was no way to be sure residents were receiving medications at the proper times and in the correct dosages.

3. Of eight health assessments reviewed three did not indicate the residents to be free of communicable disease. One did not indicate whether the resident was capable of self-administering medications with supervision or assistance from staff.

4. Appropriateness of admissions and continued residency was not based on the medical records. See subparagraph C, above.

5. Medications were not given as prescribed. As the medications had not been logged or given according to the medication label, there is a potential for over- or under- medicating the residents, which could lead to serious health problems for the residents.

6. All rooms where food or drink was prepared and served were not clean or in good repair as evidenced by:

   1. Live and dead cockroaches were observed on the kitchen and dining room floor and in the kitchen cabinets.

   2. There were spills inside the microwave oven.

   3. There was an accumulation of dust on top of the refrigerator and the freezer.

   4. The curtains in the dining room were torn.

7. All potentially hazardous food was not held at safe temperatures. Liver had been left at room temperature to thaw.

8. It could not be determined if the freezer was 0 degrees Fahrenheit or colder, as the thermometer had not been placed in the freezer until shortly before the surveyor exited the facility.

9. The last annual inspection of the portable fire extinguisher in the main building was done December, 1987. Documentation of monthly fire drills and quality tests of smoke detectors and the fire alarm system was not available at time of survey.

10. The facility needed to institute an effective insect control system. There were roaches crawling up the wall near the phone, creating an atmosphere ripe for the spread of disease.

(These lettered subparagraphs correspond to the lettered subparagraphs in paragraph (3) of the Administrative Complaint in this case.)

1. At the conclusions of the January 9, 1989, survey, the Respondent agreed to the following schedule for correcting each of the deficiencies listed in the subparagraphs of Finding 2, above (each lettered subparagraph below corresponds to the deficiency identified in the same lettered subparagraph of Finding 2, above):

   
   

   1. February 15, 1989

   2. Immediate and ongoing.

   3. February 9, 1989.

   4. February 9, 1989.

   5. Immediate.

   6. January 20, 1989.

   7. January 9, 1989.

   8. January 16, 1989.

   9. February 9, 1989.

   10. Immediate.

   
   

2. On April 27, 1989, HRS personnel returned to the Respondent's facility. They found that the deficiencies listed in the lettered subparagraphs of Finding 2, above, were not corrected, as the Respondent agreed to do. Instead, as to each deficiency, they found:

   
   

   1. Of the two staff, neither had first aid, and only one had a "no communicable disease" statement.

      
      

   2. Medications had not been logged since the morning of April 25, 1989.

      
      

   3. One of the three still did not indicate that the resident was free of communicable disease.

      
      

   4. See subparagraph C, above.

      
      

   5. One medication prescribed April 1, 1989, was never used, according to the logs.

   6. A live roach was seen crossing the kitchen counter.

      
      

   7. Breaded frozen fish was left on the counter.

      
      

   8. The stand-up freezer was 20 degrees Fahrenheit.

      
      

   9. The last documented quarterly smoke detector test was January 26, 1989, and the last documented fire drill was February 6, 1989.

      
      

   10. A live roach was seen on food left to defrost on the kitchen counter.

       
       

       CONCLUSIONS OF LAW

       
       

3. The deficiencies listed in the lettered subparagraphs of Finding 2, above, are Class III deficiencies that are violations of the following statutes and rules:

   
   

   1. Florida Statutes Section 400.419(3)(c); Florida Administrative Code Rule 10A-5.019(5)(f).

      
      

   2. Florida Statutes Section 400.419(3)(c); Florida Administrative Code Rule 10A-5.024 (1)(c).

      
      

   3. Florida Statutes Section 400.419(3)(c); Florida Administrative Code Rule 10A-5.0181(1)(a) and (2)(a)4.d.

      
      

   4. Florida Statutes Section 400.419(3)(c); Florida Administrative Code Rule 10A-5.0181(1)(a).

      
      

   5. Florida Statutes Section 400.419(3)(c); Florida Administrative Code Rule 10A-5.0182(3)(b)2.e.

      
      

   6. Florida Statutes Section 400.419(3)(c) and 400.441(1)(c); Florida Administrative Code Rule 10A-5.020(1)(n)1.

      
      

   7. Florida Statutes Section 400.419(3)(c); Florida Administrative Code Rule 10A-5.020(1)(n)10.

      
      

   8. Florida Statutes Section 400.419(3)(c); Florida Administrative Code Rule l0A-5.020(l)(n) 12.

      
      

   9. Florida Statutes Section 400.419(3)(c); Florida Administrative Code Rules 10A-5.023(16)(a), 4A-40.13(1), and 4A- 40.017(3).

      
      

   10. Florida Statutes Sections 400.419(3)(c) and 400.441(1)(c); Florida Administrative Code Rule 10A-5.022(1)(f).

       
       

4. Under Section 400.419(3)(c), Florida Statutes (1989), the administrative fine for a Class III deficiency that persists after notice of the deficiency and of the requirement that the deficiency be corrected is in the range of $100 to $500 per deficiency.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services, enter a final order finding the Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, guilty as charged in the Administrative Complaint in this case and fining her $2500.

RECOMMENDED this 31st day of May, 1990 in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 31st day of May, 1990.

ENDNOTE

1/ The basis of this ruling was put on the record at the final hearing.

COPIES FURNISHED:

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

Office of Licensure and Certification

7827 North Dale Mabry Highway Tampa, FL 33614

Willie Mae Johnson

Leisure Living Retirement Home

401 Southeast 9th Avenue Mulberry, FL 33860

Sam Power, Agency Clerk 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

Docket for Case No: 90-000296

Orders for Case No: 90-000296