STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7759

)

ELENOR'S RETIREMENT HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 26, 1991, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Leonard T. Helfand, Esquire

Department of Health and Rehabilitative Services

Office of Licensure and Certification

401 Northwest 2nd Avenue, N-526 Miami, Florida 33128

For Respondent: Eric Peavy, Owner

Elenor's Retirement Home 12315 Northwest 23rd Avenue Miami, Florida 33167

STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the Administrative Complaint issued by Petitioner?

   
   

2. If so, what penalty should be imposed?

PRELIMINARY STATEMENT

On or about October 1, 1990, Petitioner issued an Administrative Complaint giving notice of its intention to impose upon Respondent, the licensed operator of an adult congregate living facility, a civil penalty in the amount of $1,000 for having "violated the provisions of Chapter 400, Part II, Florida Statutes and the provisions of Chapter 10A-5, Florida Administrative Code, in that it failed to correct within the mandated time frame of November 18, 1988, Four (4) Class III deficiencies (Section 400.419, (3)(c), Florida Statutes), cited during the survey of October 18, 1988." By letter dated October 12, 1990, Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint

and requested a formal hearing. In its letter, Respondent asserted that the four alleged deficiencies were "corrected before the [expiration of the] mandated time frame that was set by H.R.S. Inspectors."

On December 20, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct such a hearing. Four witnesses testified at hearing: Flora Dickson, a Human Services Surveyor Specialist in Petitioner's Office of Licensure and Certification (OLC); Richard Brinkman, an OLC Fire Protection Specialist; Gloria Suarez, an OLC Senior Registered Nurse Supervisor; and Eric Peavy, the owner of Elenor's Retirement Home. In addition to the presentation of the testimony of these witnesses, six exhibits were offered and received into evidence, including the deposition of Lorraine Grissom, a former OLC Senior Community Health Nurse Consultant who now resides in Glendale, Arizona.

At the close of the evidentiary portion of the hearing on March 26, 1991, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than thirty days following the close of the hearing. On April 26, 1991, Petitioner filed a proposed recommended order.

This proposed recommended order contains proposed findings of fact, which have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed a proposed recommended order, written brief or any other like post-hearing submittal.

FINDINGS OF FACT

1. Elenor's Retirement Home (Home) is a licensed adult congregate living facility located in Miami, Florida.

   
   

2. Eric Peavy is the owner of the Home.

   
   

3. His wife is the Home's administrator.

   
   

4. In November, 1989, OLC personnel visited the Home to conduct a survey to determine compliance with licensure requirements.

   
   

5. Resident contracts on file were reviewed. Three of the contracts reviewed contained neither a refund policy of the type specified in Chapter 10A- 5, Florida Administrative Code, a bed hold policy, nor a statement as to whether the Home is affiliated with any religious organization.

   
   

6. A previous survey conducted by OLC personnel had revealed that resident contracts on file at the Home lacked these provisions. The Peavys were so notified and directed to take corrective action. They failed to do so within the mandated time frame. This deficiency still existed as of the November, 1989, survey.

   
   

7. During the November, 1989, survey, an examination was also conducted of the medication records maintained at the facility. The records were incomplete. They did not contain daily, up-to-date information regarding the administration of medication to three of the Home's residents.

   
   

8. A previous survey conducted by OLC personnel had revealed that the Home did not have complete, up-to-date records concerning the daily administration of medication to all of its residents. The Peavys were so notified and directed to take corrective action. They failed to do so within the mandated time frame. This deficiency still existed as of the November, 1989, survey.

9. During the November, 1989, survey, OLC personnel observed a resident who required greater care than the Home was able to provide.

   
   

10. The resident was incapable of doing virtually anything for herself.

    
    

11. Among other things, she needed to be administered medication. The Home, however, did not have the licensed staff to provide this service.

    
    

12. The resident was totally incontinent.

    
    

13. Because of her physical condition, the resident was unable to participate in any of the social activities at the Home.

    
    

14. The same resident had been observed at the facility during an earlier survey conducted in June of that year. Although the matter of the inappropriateness of the resident's continued placement at the Home had been raised during the survey, the resident was still at the facility when OLC personnel returned to the Home in November.

    
    

15. During the November, 1989, survey, the Home's fire drill records were inspected. There was no record of any fire drills being conducted at the facility in September or October of that year.

    
    

16. This was not the first time that OLC personnel had found a lack of documentation concerning the conducting of monthly fire drills at the Home. Such a deficiency had been uncovered during an October, 1988, survey of the Home. The Peavys were made aware of this deficiency at that time.

    
    

17. The Peavys were given written notice of the deficiencies found during the November, 1989, survey.

    
    

18. OLC personnel revisited the Home in February, 1990, and discovered that all of the deficiencies found during the November, 1989, survey had been corrected.

    
    

    CONCLUSIONS OF LAW

    
    

19. Petitioner is the state agency vested with the authority to administer the provisions of Florida's Adult Congregate Living Facilities Act, which are found in Chapter 400, Part II, Florida Statutes. These statutory provisions are intended, among other things, "to provide for the health, safety, and welfare of residents of adult congregate living facilities in the state, to promote continued improvement of such facilities, . . . and to ensure that needed economic, social, mental health, health, and leisure services are made available to residents of such facilities through the efforts of the Department of Health and Rehabilitative Services, adult congregate living facilities and other community agencies." Section 400.401, Fla. Stat.

    
    

20. Petitioner is specifically authorized by Section 400.441, Florida Statutes, "to promulgate, publish and enforce rules to implement the provisions of [Chapter 400, Part II, Florida Statutes], which shall include reasonable and fair minimum standards" for adult congregate living facilities.

21. Petitioner has adopted such "minimum standards." They are published in Chapter 10A-5, Florida Administrative Code. Among other things, these standards require that: 1) resident contracts contain a refund and bed policy and a statement indicating whether the facility is affiliated with any religious organization; 2) daily, up-to-date records be maintained at the facility concerning the administration of medication to residents; 3) residents needing care beyond that which the facility is able to provide not be admitted to, nor allowed to remain in, the facility; and 4) monthly fire drills be conducted and documented.

    
    

22. A facility that violates the "minimum standards" set forth in Chapter 10A-5, Florida Administrative Code, may be fined by Petitioner pursuant to Section 400.419, Florida Statutes. Before imposing any such fine, however, Petitioner must give the alleged violator written notice of its intended action. The alleged violator may request a hearing on the matter within 15 days of its receipt of the notice. Section 400.419(1)(e), Florida Statutes. Each alleged violation must be established at hearing by a preponderance of the evidence.

    See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 415 (Fla. 4th DCA 1974).

    
    

23. In the instant case, Petitioner has alleged that the Home violated those standards prescribed in Chapter 10A-5, Florida Administrative Code, that are summarized in the third sentence of Conclusion of Law 3. In accordance with the mandate of Section 400.419(3), Florida Statutes, 1/ Petitioner has classified the four violations alleged to have been committed as Class "III" violations. Section 400.419(3)(c), Florida Statutes, provides as follows with respect to Class "III" violations:

    
    

    Class "III" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the department deter- mines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or II violations. A class III vio- lation is subject to a civil penalty of not less than $100 and not exceeding $500 for each violation. A citation for a class III violation shall specify the time within which the violation is required to be corrected.

    If a class III violation is corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense.

    
    

24. The preponderance of the evidence adduced at hearing establishes that the Home committed the four Class "III" offenses charged in the Administrative Complaint and that these violations constituted "repeated offenses," within the meaning of Section 400.419(3)(c), Florida Statutes. Accordingly, the Home is subject to the imposition of a civil penalty.

25. In determining the amount of the civil penalty that should be imposed upon the Home for having committed these violations, the following factors must be taken into consideration pursuant to Section 400.419(2), Florida Statutes:

    
    

    1. The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result

       or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or rules were violated.

    2. Actions taken by the owner or admini- strator to correct violations.

    3. Any previous violations.

    4. The financial benefit to the facility of committing or continuing the violation.

       
       

26. Having considered the facts of the instant case in light of the foregoing factors, it is the view of the Hearing Officer that a civil penalty totaling $1,000 should be imposed for the commission of the four Class "III" violations alleged in the instant Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint, imposing a civil penalty in the amount of $1,000 for these violations and giving the Home a reasonable amount of time within which to pay this penalty.

RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of May, 1991.

STUART M. LERNER

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 6th day of May, 1991.

ENDNOTES

1/ Section 400.419(3), Florida Statutes, provides that each violation must be classified by Petitioner "according to the nature of the violation and the gravity of its probable effect on facility residents."

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7759

The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Petitioner in the instant case:

First unnumbered paragraph: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

Second unnumbered paragraph: Rejected because it is more in the nature of argument concerning the sufficiency of evidence to support the allegations of the Administrative Complaint than a finding of fact.

Third unnumbered paragraph, First sentence: Rejected because it is more in the nature of a statement of the case than a finding of fact; Second and third sentences: Rejected because they are more in the nature of summaries of evidence than findings of fact based upon such evidence; and Fourth sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer concerning when the deficiencies in question were ultimately corrected.

COPIES FURNISHED:

Leonard T. Helfand, Esquire Department of Health and

Rehabilitative Services Office of Licensure and

Certification

401 N.W. 2nd Avenue, N-526 Miami, Florida 33128

Eric Peavy, Owner Elenor's Retirement Home 12315 N.W. 23rd Avenue Miami, Florida 33167

R.S. Power, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-007759

Orders for Case No: 90-007759