STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3551

)

1. WILHELM d/b/a SUN 'N LAKE ) TOWERS, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the above-styled matter was held in this case before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 6, 1992, in Sebring, Florida. The following appearances were entered:

   
   

   APPEARANCES

   
   

   For Petitioner: Thomas W. Caufman, Esquire

   Agency for Health Care Administration 7827 North Dale Mabry Highway #100

   Tampa, Florida 33614

   
   

   For Respondent: Werner Wilhelm, (pro se)

   Administrator

   Sun 'N Lake Towers

   5959 Sun 'N Lake Boulevard Sebring, Florida 33872

   
   

   STATEMENT OF THE ISSUES

   
   

   Whether the Respondent violated provisions of Section 400.419(3)(c), Florida Statutes, and Chapter 10A-5, Florida Administrative Code, more specifically alleged in the Administrative Complaint dated April 10, 1992.

   
   

   PRELIMINARY STATEMENT

   
   

   On April 10, 1992, the Department of Health and Rehabilitative Services (HRS) 1/ issued an Administrative Complaint, PDRL No. 06-92-058-ACLF, seeking to impose a fine of $1,000 upon Respondent for various violations of Chapter 400, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. On April 21, 1992, HRS issued a second Administrative Complaint, PDRL No. 06-92-059-ACLF, seeking to impose a fine of $750 upon the Respondent for various violations of Chapter 400, Florida Statutes, Chapter 10A-5, Florida Administrative Code, and Chapter 21, Life Safety Code, NFPA 101, 1988 Edition. The Respondent requested formal proceedings under Section 120.57(1), Florida Statutes, (1991), on both Administrative Complaints, and HRS referred the matters to the Division of

   Administrative Hearings. Subsequently, the AHCA was substituted for HRS as the Petitioner in the Case. 2/ The two matters were consolidated by Order of July 15, 1992. 3/

   
   

   Final hearing was scheduled for October 6, 1992, in Sebring, Florida.

   Prior to final hearing, the parties agreed to a settlement of DOAH Case No. 92- 3550 (Complaint No. 06-92-059) wherein the Respondent admitted the alleged violations, and AHCA agreed to accept a payment of $562.50 instead of the $750 fine sought in the Complaint. An Order Relinquishing Jurisdiction to the Agency has been entered separately. At this Hearing, the Petitioner presented the testimony of Susanne M. Eresten, M.A., Registered Dietitian, and Foye Brunson, AHCA Surveyor. The Petitioner's Exhibits 1 through 3 4/ were admitted into evidence. Werner Wilhelm, Administrator of Sun 'N Lake Towers, and William D. Sandinaro, Food Service Manager, of Sun 'N Lake testified for the Respondent.

   Neither party ordered the preparation of a transcript of the final hearing. Petitioner filed proposed findings of fact and conclusions of law on January 11, 1993. Respondent did not file proposed findings. My specific ruling on the agency's proposals are set forth in the Appendix attached hereto.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, Sun 'N Lake Towers, is an ACLF located in Sebring, Florida, and is duly licensed for 224 beds.

      
      

   2. On May 14, 1991, the annual licensure survey of Sun 'N Lake Towers reviewed the facility's records to determine the current census and number of meals per day the facility had contracted to serve to its residents. The amount of non-perishable food that would be required to feed the facility's residents two meals per day for seven days was calculated.

      
      

   3. The supply of food in storage was deficient for every food group by about 50% of the necessary amount of food. A non-perishable food supply protects the residents in the event of a tornado, hurricane, or other disaster.

      
      

   4. Some of the residents at Respondent's facility were on physician ordered therapeutic diets.

      
      

   5. One resident, P.M., was on a diabetic diet, but was served orange juice. Orange juice is high in fructose and is not appropriate for such a diet. Tomato juice would have been appropriate, but it was not observed on hand at the facility.

      
      

   6. Another resident who was on a diabetic diet received a sugary dessert in violation of the physician's order.

      
      

   7. Another resident on a diabetic diet, M.F., received only one serving of bread and no milk instead of two servings of each group as ordered by the physician.

      
      

   8. Failure to comply with a physician ordered diabetic diet could result in very serious health problems for a patient.

      
      

   9. Resident, E.N., who was on a physician ordered 1200 calorie per day diet, received a 4 to 5 ounce serving of meat instead of the two ounce serving ordered by the physician.

   10. The facility served a boxed stuffing which was high in sodium content to six residents who were on physician ordered low sodium diets.

       
       

   11. The facility had no system in place to ensure that information regarding residents' therapeutic diets was transmitted to the food service staff, and the food service staff had no system in place to substitute a modified menu into the meal pattern when required.

       
       

   12. The food at Sun 'N Lake Towers is otherwise tasty and served in bountiful amounts.

       
       

   13. An advertisement for Sun 'N Lake Towers was placed the March 1991 edition of Senior Scene Magazine. The advertisement failed to state whether the facility was affiliated with any religious organization.

       
       

   14. Sun 'N Lake Towers' more recent advertisement now contains the requisite affirmative disclosure.

       
       

   15. Although the facility kept resident property in trust, it failed to provide a quarterly statements to the residents.

       
       

   16. The deficiencies cited following the May 14, 1991 visit were also cited during the licensure survey of April 24, 1990.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   18. Sections 400.419(3)(c), Florida Statutes, authorizes the AHCA 5/ to impose a civil penalty for violations of licensure standards when the violation is a repeated offense.

       
       

   19. Section 10A-5.020(2)(n)2, Florida Administrative Code, states in pertinent part:

       
       

       "A one week supply of non-perishable food based on the number of weekly meals the facility contracted with residents to serve, shall be on hand at all time."

       
       

   20. The evidence in this case is clear that the Respondent did not maintain a one week supply of non-perishable food on the premises.

       
       

   21. Section 10A-5.020(2)(e), Florida Administrative Code, states in pertinent part:

       
       

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

       
       

   22. The evidence in this case is clear that the Respondent failed to prepare and serve therapeutic diets as ordered by the physicians for several residents.

       
       

   23. Section 400.447(5), Florida Statutes, 1989, in effect on the date of the licensure survey states:

       "The facility's advertising shall state whether or not it is affiliated with any religious organization and, if so, which organization and its general responsibility to the facility."

       
       

   24. The evidence in this case is clear that the Respondent did not include the requisite religious organization language in its advertisement in Senior Scene. However, Section 400.447(6), Florida Statutes, 1991, revised Section 400.447(5), Florida Statutes, 1989, and now requires the facility to reveal its religious affiliation only when the facility is affiliated with a religious organization or has a name implying religious affiliation.

   25. Section 400.417(4), Florida Statutes, 1991, states in pertinent part: "At least once every three months . . . the

       facility shall furnish the resident and his guardian, trustee, or conservator, if any, a complete and verified statement of all funds and other property to which this subsection applies, detailing the amount and items received, together with their sources and disposition. In any event, the facility shall furnish such statement annually and

       upon the discharge or transfer of a resident."

       
       

   26. The evidence in this case is clear that the facility did not furnish any trust account statements to residents.

       
       

   27. Section 400.419(3)(c), Florida Statutes, authorizes the AHCA to impose a civil penalty of not less than $100 and not greater than $500 for each violations of the licensure statutes and rules.

       
       

   28. Section 400.419(2), Florida Statutes, states:

       
       

       "In determining if a penalty is to be imposed and in fixing the amount of the penalty to be imposed, if any, for a violation, the Department shall consider the following factors:

       
       

       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 action 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 administrator to correct violations.

          
          

       3. Any previous violations.

          
          

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

       5. The licensed capacity of the facility."

          
          

   29. The Respondent's failure to serve physician ordered diets impacted several residents, and could potentially cause serious physical harm. Sun 'N Lake Towers with 224 licensed beds is a large ACLF, and should have instituted improved dietary and record keeping procedures after being cited for these same deficiencies a the April 24, 1990 survey. It is concluded that, under Section 400.419, these circumstances constitute grounds for the imposition of a fine of

       $250 per violation.

       
       

   30. The advertising violation is not serious, was subsequently corrected, and the statute changed that same year. Therefore the minimum fine of $100 should be levied, but suspended upon payment of the other fines imposed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of all four citations, and

that the Agency for Health Care Administration enter a Final Order imposing a fine of $850.00 ($100 suspended) upon the Respondent, Sun 'N Lake Towers.

RECOMMENDED this 25th day of January, 1993, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 25th day of January, 1993.

ENDNOTES

1/ By Chapter 92-33, Laws of Florida (1992), the AHCA was created, and by Chapter 92-58, Laws of Florida (1992), parts of HRS' functions, including responsibility for licensure of ACLFs was transferred to the AHCA. These changes generally were effective July 1, 1992.

2/ See end note 1 above.

3/ DOAH Case No. 92-3550 corresponds to Administrative Complaint PDRL No. 06- 92-059-ACLF and DOAH Case No. 92-3551 corresponds to Administrative Complaint PDRL No. 06-92-058-ACLF.

4/ Petitioner late filed a substituted copy of Exhibit #3 on October 13, 1992.

1. See end note 1 above.

2. See end note 1 above.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact.

Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,

13, 14, 15, 16, 17

Respondent did not file proposed findings of fact

COPIES FURNISHED:

Thomas W. Caufman, Esquire

Agency for Health Care Administration 7827 North Dale Mabry Highway #100

Tampa, Florida 33614

Werner Wilhelm, (pro se) Administrator

Sun 'N Lake Towers

5959 Sun 'N Lake Boulevard Sebring, Florida 33872

Sam Power Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Harold D. Lewis, Esquire General Counsel

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Douglas M. Cook Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the

final order in this case concerning their 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: 92-003551

Orders for Case No: 92-003551