STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5119

) FAMILY OF FRIENDS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on October 15, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings. By agreement of the parties, the testimony of two witnesses was taken by telephone on October 17, 1991.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Attorney Linda L. Parkinson

District 7 Legal Office Department of Health and

Rehabilitative Services South Tower, Suite 5827

400 West Robinson Street Orlando, Florida 32801

For Respondent: Peter J. Lee

2340 Celery Ave.

Sanford, Florida 32771 STATEMENT OF THE ISSUES

The issue in this case is whether the six deficiencies alleged in the Administrative Complaint existed at Respondent's adult congregate living facility and, if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed July 15, 1991, Petitioner alleged that Respondent's adult congregate living facility had been surveyed and deficiencies had been recorded, but Respondent failed to correct these deficiencies within the allotted time. Respondent allegedly failed to provide statements that staffmembers were free from communicable diseases, in violation of Section 400.419(3)(c), Florida Statutes and Rule 10A-5.019(5)(a)1., (b), (c), (e), (f), and (g); to assure that therapeutic diets had been prepared and served according

to physician's written diet orders, in violation of Section 400.419(3)(c) and Rule 10A-5.020(1)(e); to provide meal patterns or menus for the therapeutic residents, in violation of Section 400.419(3)(c) and Rule 10A-5.020(1)(f); to require each resident to have a physical examination within 60 days prior to admission and a health assessment within 30 days following admission, in violation of Section 400.419(3)(c) and Rule 10A-5.0181(1); to obtain a health assessment indicating that each resident was appropriate for living in an adult congregate living facility, in violation of Section 400.419(3)(c) and Rule 10A- 5.0181(2)(a)1., 2., 3., and 4.a., b., c., d., e., and f.; and to maintain admission procedures, including assurances that the admission and continued residency were appropriate based upon medical records, in violation of Section 400.419(3)(c) and Rules 10A-5.0181(3)(a)1.a., b., c., d., e., g., h.(I), (II)i)I)(II)j [sic] and 10A-5.022(1)m.

By letter dated July 26, 1991, Respondent requested a formal hearing.

At the hearing, Mr. Peter Lee, who is the administrator of Respondent, was determined to be a qualified representative of Respondent. Petitioner called two witnesses and offered into evidence 16 exhibits. Respondent called one witness and offered into evidence one exhibit. All exhibits were admitted.

No transcript was ordered. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Respondent's adult congregate living facility (ACLF) has been licensed since 1989. Respondent was organized by 10 families with chronically mentally ill persons who needed placement. The ACLF provides personalized care to each of its residents.

   
   

2. On April 9 and 16 and May 2, 1990, Petitioner conducted a periodic survey of Respondent's ACLF. The resident population at the time was 10 persons.

   
   

3. The survey notes the following deficiencies relevant to this proceeding: the personnel files of staffmembers contained no evidence that the staff were free of communicable diseases, which is a Class III violation of Rule 10A-5.019(5)(a)1, (b), (c), (e), (f), and (g) if not corrected by May 30, 1990; therapeutic menus had not been prepared and served as ordered by physicians and no menu patterns were on file, which is a Class III violation of Rule 10A- 5.020(1)(e) if not corrected by June 10, 1990; each resident had not been examined by a physician or licensed nurse practitioner within 60 days before admission, or within 30 days after admission, because one assessment was undated, one resident was admitted January 20, 1990, and still had no assessment, and one resident was admitted August 21, 1989, and had an assessment dated May 26, 1989, which is a Class III violation of Rule 10A-5.01818(1) if not corrected by June 15, 1990; certain residents lacked a health assessment showing the suitability of the ACLF placement because one assessment was undated, an assessment dated August 19, 1989, failed to show if the resident could walk, and eight of ten files failed to document if the residents required help from staff to evacuate the building in the event of emergency, which is a Class III violation of Rule 10A-5.0181(2)(a)1., 2., 3., 4., a., b., c., d., e., and f. if not corrected by June 2, 1990; and the resident's medical records failed to justify the admission and continued residence in the ACLF, which is a Class III violation of Rules 10A-5.0181(3)(a)1.a., b.c., d., e., ., and h.(I), (II), i(I)(II), j. and 10A-5.022(1)m. if not corrected by June 2, 1990.

4. By receipt signed May 23, 1990, Peter Lee indicated that he had received a copy of the survey.

   
   

5. On July 17, 1990, Petitioner conducted a resurvey of Respondent's ACLF to see if the deficiencies had been eliminated. The resurvey states that three staffmembers had provided no evidence that they were free of communicable diseases; the deficiencies regarding the therapeutic diets had not been eliminated because a recent order for one resident changed his diet but his menu had not been adjusted and another diet order "had been changed" and required clarification; the health assessment were still missing for the resident admitted August 27, 1989, and the assessment was still undated for the resident admitted January 20, 1990; and the medical records continued to fail to justify the admission and continued residency because a contract remained undated, the health assessment for a resident admitted on August 19, 1989, had not been corrected, and three of ten assessments still failed to indicate if the resident was able to evacuate himself.

   
   

6. Another follow-up survey was completed by November 5, 1990. This survey reflects that the noted violations had been corrected. The three communicable diseases statements had been sent to Petitioner on August 2, 1990. The alleged violation involving therapeutic diets was eliminated on October 8, 1990, when Respondent supplied Petitioner information that all the diets were changed to regular diets. The alleged violations involving physical examinations and assessments, as well as medical justification for admission and continued residency, were eliminated on October 8, 1990, when Respondent submitted the necessary documents to Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

   
   

8. Section 400.419(3)(c) provides:

   
   

   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 [Petitioner] determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents 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.

   
   

9. Rule 10A-5.019(5)(g) requires that staffmembers possess statements from suitable medical professionals that the staffmembers are free of communicable diseased.

10. Rule 10A-5.020(2)(e) provides:

    
    

    When therapeutic diet services are provided, a physician's order for each diet and the meal pattern including types and amounts of food to be served shall be on file.

    Therapeutic diets shall be prepared and served as ordered by the physician.

    
    

11. Rule 10A-5.020(2)(f) provides:

    
    

    Regular diets shall meet the nutritional needs of residents.... Therapeutic diets shall meet these nutritional standards [citation omitted] to the extent that is possible...

    
    

12. Rule 10A-5.0181(1) requires that each resident be examined by an appropriate medical professional within 60 days before admission or 30 days after admission and that forms documenting such examinations become part of the resident's permanent record.

    
    

13. Rule 10A-5.0181(2) requires that certain information, which shall become part of the resident's record, be provided for admission. The information is generally designed to allow a determination of the suitability of the ACLF for the resident and includes such information as the requirements of the resident for special care.

    
    

14. Rule 10A-5.O181(3) requires that the administrator determine the appropriateness of the facility for each potential resident. The determination is to be based upon the medical examinations required by Rule 10A-5.0181(1) and other factors. However, nothing in Rule 10A-5.0181(3) requires the completion of any forms or inclusion of any documents in the resident's record. There is nothing in the record suggesting that the administrator failed to consider the enumerated factors in deciding whether to admit any resident. This count of the Administrative Complaint also relies upon Rule 10A-5.022(1)(m), but the Florida Administrative Code contains no such rule.

    
    

15. Petitioner seeks an administrative fine of $250 for each of the six classes of violations set forth in the Administrative Complaint.

    
    

16. Petitioner has proved that Respondent violated Rule 10A-5.019(5)(g) requiring that the files of staffmembers contain communicable disease statements. More than one staffmember failed to provide such a statement. Although the staffmembers proved not to have communicable diseases, the proposed penalty of $250 is reasonable.

    
    

17. Petitioner has not proved that Respondent violated Rule 10A- 5.020(2)(e) and (f). The record is unclear as to whether physicians had ordered such diets. The alleged deficiencies as to diet were eliminated by merely changing the records to show that the residents were not on therapeutic diets in the first place.

    
    

18. Petitioner has proved that Respondent violated Rule 10A-5.0181(1) by failing to obtain physical examinations and health assessments within the time allowed by law and maintain copies of the assessments among the resident's

    records. In view of the considerable overlap between this violation arid the next violation, the appropriate penalty is $125.

    
    

19. Petitioner has proved that Respondent violated Rule 10A-5.0181(2)(a) by failing to obtain health assessments indicating that the ACLF was appropriate for each resident. In view of the personalized care that each resident received at the ACLF and the overlap with the preceding violation, a penalty of $100 is appropriate for this violation.

    
    

20. Petitioner has failed to prove that Respondent violated Rule 10A- 5.0181(3), which requires the ACLF administrator to determine if the facility is suitable for a resident. No evidence suggests that the administrator failed to make such a determination. Unlike other requirements in the rules, nothing in Rule 10A-5.0181(3) requires documentation of this determination in the resident's records.

RECOMMENDED ORDER

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing a civil penalty of $475 on Respondent.

ENTERED this 29th day of October, 1991, 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 29th day of October, 1991.

COPIES FURNISHED:

Attorney Linda L. Parkinson

Department of Health and Rehabilitative Services Office of Licensing and Certification

400 West Robinson Street, S827 Orlando, FL 32801

James A. Sawyer, Jr. District 7 Legal Counsel

Department of Health and Rehabilitative Services South Tower, Suite 5827

400 West Robinson Street Orlando, FL 32801

John Slye, 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

Peter J. Lee 2340 Celery Ave.

Sanford, FL 32771

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: 91-005119

Orders for Case No: 91-005119