STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0631

) THE VILLA CABANA, INC. d/b/a ) VILLA CABANA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on April 16, 1991, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Paula N. Kandel, Esquire

HRS - Office of Licensure and Certification

7827 North Dale Mabry Highway Tampa, Florida 33614

For Respondent: Keith Young, Qualified Representative

The Villa Cabana

2600 Fourth Street South

St. Petersburg, Florida 33705 STATEMENT OF THE ISSUES

Whether the Respondent, The Villa Cabana, Inc., should pay a fine of $250 for violations of the minimum standards for Adult Congregate Living Facilities set forth in Rule 10A-5.019(5)(h), Florida Administrative Code, and Section 400.419(3)(c), Florida Statutes.

FINDINGS OF FACT

Petitioner Department of Health and Rehabilitative Services (hereinafter the Department), filed an Administrative Complaint alleging that Respondent, The Villa Cabana, Inc. (hereinafter Villa Cabana), violated minimum licensing standards for an Adult Congregate Living Facility in the following manner: The Respondent failed to assure, and have available documentation, that each person employed by the facility, who may come into contact with potentially infectious materials is trained in infection control procedures for blood and other bodily fluids. It was further alleged that the deficiency was found to exist during the surveys completed on July 31, 1989 and July 18, 1990.

By letter dated January 5, 1991, the administrator for Villa Cabana disputed the allegations set forth in the Administrative Complaint and requested a formal hearing.

During the hearing, the Department presented one witness and filed two exhibits, which were admitted into evidence. The Respondent called two witnesses, and showed the Hearing Officer the nursing license of Floretta Young.

A transcript of the proceeding was not ordered. Both parties waived their opportunity to submit proposed findings of fact.

FINDINGS OF FACT

1. During the applicable time period, Villa Cabana was licensed to operate as an Adult Congregate Living Facility at the following location: 2600 4th Street South, St. Petersburg, Florida 33705.

   
   

2. On July 31, 1989, a licensure renewal survey was conducted by the Department on the premises in order to monitor Villa Cabana's compliance with licensing standards for Adult Congregate Living Facilities.

   
   

3. At the time the survey was conducted, there were only four residents at the facility. The staff consisted of Keith Young, the administrator and his wife, Floretta Young, a registered nurse. Ms. Young had the sole responsibility for the care of the residents.

   
   

4. As a result of the survey, a citation was issued to the facility for the following deficiency: The records of the facility failed to show that there were training procedures in existence for staff who may come into contact with potentially infectious materials.

   
   

5. This deficiency was brought to the attention of Keith Young, the administrator for Villa Cabana. It was explained by a representative of the Department that the facility needed to establish such training procedures and records of such training needed to be kept in the personnel records of the staff.

   
   

6. During the same survey, the facility records did not include a copy of the nurse's license belonging to Floretta Young.

   
   

7. Written verification of these two deficiencies was given to the facility administrator, along with the time deadline for correction of the listed deficiencies. The facility was required to correct the deficiencies within thirty days.

   
   

8. On October 30, 1989, a Department representative revisited the facility to determine if the deficiencies had been corrected. On the date of the revisit, the corrections had taken place. The facility records contained a written training policy and a copy of Ms. Young's nursing license, which she received in 1980.

   
   

9. On July 18, 1990, another annual licensure renewal survey took place. During this survey, one staff member had been added to the facility. Sandra Paula had been an employee for seven days prior to the survey. She was employed in the laundry room. During the review of her personnel file, a citation was issued to the facility for the following deficiency: There was no evidence in

   the file that the staff member had received training in infection control procedures for blood and other bodily fluids.

   
   

10. The deficiency was brought to the attention of Keith Young, the administrator of Villa Cabana.

    
    

11. On October 18, 1990, the facility was revisited to review the status of the deficiency. This deficiency had been corrected by that date.

    
    

12. At all times material to these proceedings, Floretta Young was a registered nurse within the State of Florida. Prior to the employment of Ms. Paula, Ms. Young had the sole responsibility for the care of the residents, which included doing the laundry. During her education prior to becoming a registered nurse, Ms. Young received training in infection control procedures for blood and other bodily fluids. She utilized that training during her care of the residents and the completion of housekeeping duties, including laundry tasks.

    
    

13. Due to her qualifications as a registered nurse, Ms. Young was responsible for the technical aspects of the facility's policies regarding infection control procedures when these policies were reduced to writing prior to October 30, 1989.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Section 400.411, Florida Statutes, authorizes the Department promulgate and enforce rules establishing minimum standards for Adult Congregate Living Facilities. These rules are contained in Chapter 10A-5, Florida Administrative Code.

    
    

16. Rule 10A-5.019(5)(h), Florida Administrative Code, requires the administrator of a facility to assure that each person employed by the facility who may come into contact with potentially infectious materials is trained in infection control procedures for blood and other bodily fluids (including contracted and housekeeping staff).

    
    

17. Based upon the evidence adduced at hearing, there was no assurance that Ms. Paula had been trained in the facility's infection control procedures prior to her undertaking of her job duties in the laundry. Seven days later, she still had not received the training required by the rules governing Adult Congregate Living Facilities in Florida. As a result of the facility's failure to meet the staffing standards which require training in infection control procedures, the Villa Cabana is guilty of the violation charged in Paragraph 2(a) of the Administrative Complaint dated December 21, 1990. This violation is categorized as a Class III violation under Section 400.419(3)(c), Florida Statutes, as it is an occurrence related to the Personal care of residents and potentially threatens their physical health.

    
    

18. The penalties for a Class III violation are set forth in Section 400.419(3)(c), Florida Statutes, which provides as follows, in pertinent part:

    
    

    A Class III violation 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.

    
    

19. In this case, the Department contends that the Villa Cabana failed to comply with the staffing standards set forth in Rule 10A-5.019(5)(h), during both the July 31, 1989 and July 18, 1990 licensure renewals surveys. If the offense had occurred during both surveys, the Villa Cabana would be subject to a civil penalty.

    
    

20. A review of the facts surrounding the July 31, 1989 survey reveals that the only person employed by the facility who would have come into contact with potentially infectious materials during this time period was Floretta Young. She received training in infection control procedures when she was studying to be a registered nurse. She has held a valid nursing license in accordance with Florida law since 1980. As a result, it is clear that the appropriate staff had received the necessary training prior to the July 31, 1989 survey. Once the Department received documentation showing Ms. Young was a registered nurse, the alleged training deficiency regarding infection control was shown to be an inappropriate citation. In reality, the violation during the July 18, 1990 survey was the first violation of the training requirements for infection control.

    
    

21. Based upon the foregoing, no civil penalty may be imposed upon this facility for the violation of Rule 10A- 5.019(5)(h), Florida Administrative Code, which was observed during the survey conducted on July 18, 1990. The violation was not a repeated offense.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. The Respondent be found guilty of having violated Rule 10A-5.019(5)(h), Florida Administrative Code, during the survey conducted on July 18, 1990, as alleged in the Administrative Complaint.

   
   

2. The alleged violation of the same Florida Administrative Code provision which was recorded in the survey conducted July 31, 1989, be considered as an improperly classified deficiency.

   
   

3. The July 18, 1990 violation be deemed the facility's first offense of Rule 10A-5.019(5)(h), Florida Administrative Code.

   
   

4. The civil penalty which the Department seeks to assess against the facility administrator be dismissed as such penalties may only be imposed if the violation is a repeated offense.

DONE and ENTERED this 24th day of April, 1991, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELL

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th of April, 1991.

COPIES FURNISHED:

Paula M. Kandel, Esquire

HRS - Office of Licensure and Certification 7827 North Dale Mabry Highway

Tampa, Florida 33614

Keith Young, Administrator The Villa Cabana

2600 - 4th Street South

St. Petersburg, Florida 33705

R. S. Power, Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris, Esquire General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

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 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: 91-000631

Orders for Case No: 91-000631