STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7179

)

JAMES C. VINSON, d/b/a )

WHITE HOUSE #1, )

)

Respondent. )

) AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7180

)

JAMES C. VINSON, d/b/a )

WHITE HOUSE #1, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Clearwater, Florida, on June 7, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings. The attorneys, parties, witnesses, and court reporter appeared in Clearwater, and the Hearing Officer participated by telephone from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Thomas W. Caufman, Senior Attorney

Agency for Health Care Administration

Division of Health Quality Assurance 7827 North Dale Mabry Highway No. 100 Tampa, Florida 33614

For Respondent: James C. Vinson, Owner

White House No. 1 1822 Nebraska Avenue

Palm Harbor, Florida 34683

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of violating various provisions governing adult congregate living facilities and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

In DOAH Case No. 93-7179, by Administrative Complaint dated November 23, 1993, Petitioner alleged that Respondent failed to correct, within the mandated timeframes, nine deficiencies cited during the survey conducted on May 25, 1993. The deficiencies allegedly persisted on a follow-up visit on September 13, 1993.

The nine alleged deficiencies consisted of the failure to train staff in infection control procedures for blood and other bodily fluids, in violation of Section 400.419(3)(c), Florida Statutes, and Rule 1OA-5.0191(5)(a), Florida Administrative Code; the failure to maintain corrected sanitation inspection reports, in violation of Section 400.419(3)(c)c and Rule 10A-5.020(2)(m)2; the failure to ensure that residents were examined by a health care provider within

60 days before or 30 days after admission, in violation of Sections 400.419(3)(c) and 400.426(4) and (5); the failure to ensure that at least one person duly certified in first aid was within the facility at all times, in violation of Section 400.419(3)(c) and Rule 10A-5.0191(2); the failure to document that all staff employed for more than 30 days were free of signs and symptoms of communicable disease, in violation of Section 400.419(3)(c) and Rule 10A-5.019(5)(h); the failure to properly label nonprescription drugs, in violation of Section 400.419(3)(c) and Rule 10A-5.0182(6)(f); the failure to document enough activities for residents, in violation of Section 400.419(3)(c) and Rule 10A-5.0182(4); the use of a half-bedside rail without a written order from the resident's health care provider, in violation of Section 400.419(3)(c) and Rule 10A- 5.0182(9); and the failure to maintain an adequate supply of nonperishable food, in violation of Section 400.419(3)(c) and Rule 10A- 5.020(2)(n)2.

The Administrative Complaint requests the imposition of an administrative fine in the amount of $250 for each of the nine alleged violations.

In DOAH Case No. 93-7180, by Administrative Complaint dated November 23, 1993, Petitioner alleged that Respondent was guilty of a repeat deficiency from the May 25, 1993 survey. Petitioner alleged that, on May 25 and September 13, 1993, Respondent was guilty of the failure to ensure that each resident was covered by a contract executed at or prior to admission to the facility, in violation of Sections 400.419(3)(c) and 400.424. The Administrative Complaint requests the imposition of an administrative fine in the amount of $250 for the alleged violation.

Respondent requested a formal hearing on both Administrative Complaints.

At the hearing, Petitioner called one witness and offered into evidence three exhibits. Respondent called one witness and offered into evidence a single composite exhibit.

Neither party order a transcript. Petitioner filed a proposed recommended order. The recommended order has adopted almost all of the proposed findings. Those not adopted were rejected because they were unsupported by the appropriate weight of the evidence or subordinate.

FINDINGS OF FACT

1. Respondent is currently licensed to operate an adult congregate living facility at 1822 Nebraska Avenue, Palm Harbor, Florida.

   
   

2. On May 25, 1993, Petitioner's surveyor conducted an annual survey of the facility. Petitioner's surveyor noted several deficiencies on the survey report and gave Respondent 30 days within which to correct the deficiencies. Upon resurvey on September 13, 1993, the Petitioner's surveyor found nine deficiencies uncorrected. In addition, Petitioner's surveyor found uncorrected one deficiency that had been cited during a survey on August 4, 1993.

   
   

3. On May 25, 1993, Respondent had three employees. Two of them had been employed at the facility for over 30 days. Their files contained no documentation showing that they were trained in infection control procedures. The third employee was new and had no personnel file.

   
   

4. At the September 13, 1993 resurvey, the three former employees had been replaced by three new employees. Two of the new employees had received the required infection control training, although their statements omitted a copy of the license of the registered nurse who did the training. The file of the other new employee lacked any statement concerning infection control training.

   
   

5. However, Petitioner failed to show that the deficiencies cited in the May 25 survey were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law.

   
   

6. During both the May 25 and September 13, 1993 surveys, Respondent's sanitation inspection report was missing the second page, which would have listed violations and corrective actions regarding sanitation.

   
   

7. On May 25, 1993, resident I. M. had been at the facility more than 30 days without a health assessment. On September 13, 1993, I. M. had been discharged, but four new residents had been at the facility more than 30 days without a health assessment.

   
   

8. Petitioner failed to prove that the violation concerning I. M.'s health assessment was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law.

   
   

9. On May 25, 1993, Respondent failed to document that a person duly certified in first aid was on duty at all times. A staff member identified as being alone at the facility on weekends had no personnel file. On September 13, 1993, two staff members identified on the staffing chart as being alone at the facility had no documentation of first aid training. On September 13, 1993, a third staff member who was left alone at the facility claimed to be a certified nursing assistant and therefore exempt from the first aid certification requirement. Respondent and the employee had no documentation to indicate that the employee was a certified nursing assistant.

   
   

10. As noted above, the former employees were no longer employed at the facility on September 13. Petitioner thus failed to prove that the May 25 deficiencies concerning first aid certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law.

11. On May 25, 1993, three employees at the facility had no statement that they were free of signs and symptoms of communicable disease. On September 13, 1993, one of the new employees had no such statement. The other two employees had statements, but they were signed by a registered nurse rather than an advanced registered nurse practitioner.

    
    

12. Due to the turnover of employees, Petitioner failed to prove that the May 25 deficiencies concerning communicable- disease certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law.

    
    

13. On May 25, 1993, Respondent kept a supply of nonprescribed, over-the- counter drugs, such as aspirin and milk of magnesia, that were not labelled for use by a particular resident. However, Respondent remedied the violation during the May 25 visit. On September 13, 1993, the surveyor found approximately six bottles of unlabelled, nonprescription over- the-counter medication. These medications had been brought by the family of a newly admitted resident.

    
    

14. Respondent corrected the labelling deficiencies during the May 25 survey. Petitioner thus failed to prove that the May 25 labelling deficiencies were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law.

    
    

15. On May 25, 1993 Petitioner's surveyor found no activities calendar and, based on resident interviews and her observations at the facility, no evidence of significant activities being provided. On September 13, 1993, Respondent had an activities calendar, but it did not specify the starting time or duration of resident activities.

    
    

16. Petitioner proved that deficiencies concerning the activities calendar were uncorrected during the applicable timeframe.

    
    

17. On August 4, 1993, Petitioner's surveyor found in a resident's room a full-bedside rail, which was not ordered by a physician. On May 25, 1993, Petitioner's surveyor found, evidently in a different resident's room, a half- bedside rail, which was not ordered by a physician. Respondent presented a physician's order for a hospital bed, but mechanical bedside rails were not addressed in the order.

    
    

18. Due to the involvement of different residents, as well as different types of restraints, Petitioner failed to prove that the May 25 deficiency concerning the full-bedside rail was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law.

    
    

19. On May 25, 1993, the facility maintained a clearly inadequate supply of nonperishable food. During the September 13, 1993 resurvey, Respondent had significantly more nonperishable food on hand, consisting of 567.5 ounces of fruits and vegetables.

20. The May 25 survey report informs Respondent only that he does not have on hand a one-week supply of nonperishable food. The survey does not calculate the amount of such food needed based on some formula. At the hearing, Petitioner's witness testified that the nonperishable food supply on September

    13 was inadequate, based on a requirement of 16 ounces of fruits and vegetables per day for seven days for five residents.

    
    

21. Based on the formula, Respondent needed a total of 560 ounces of nonperishable food on hand on May 25, 1993, when he had nowhere near an adequate amount. Under the formula, Respondent would have needed, on September 13, 1993, 784 ounces of nonperishable food because two more residents had been added to the facility. However, Petitioner failed to prove that 560 ounces of nonperishable food does not represent one week's supply for the seven residents at the facility on September 13, 1993.

    
    

22. On May 25, 1993, Petitioner's surveyor found that one resident was residing at the facility without a signed contract. On September 13, 1993, at least one resident was without a signed contract.

    
    

    CONCLUSIONS OF LAW

    
    

23. 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.)

    
    

24. Section 400.419(1) authorizes Petitioner to impose fines on adult congregate living facilities. Section 400.419(1)(c) states that each day of a violation constitutes a separate violation.

25. Section 400.419(3)(c) provides that 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 agency 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 repeat offense.

    
    

26. Section 400.414(1) provides that Petitioner must prove its allegations by a preponderance of the evidence.

27. Rule 10A-5.0191(5)(a) states:

The administrator shall ensure that each staff member who may come into contact with potentially infectious materials is trained in infection control procedures for blood and other body fluids by a qualified instructor within 10 working days of beginning work in the facility. For the purpose of this subsection, "qualified instructor" means a nurse; a physician or physician assistant licensed under chapter

458 or 459, F.S.; a paramedic or emergency medical technician certified under chapter 401, F.S.; or a person trained in infection control by the American Red Cross or other similar organization.

1. Rule 10A-5.0191(7) provides: "All training required by this rule shall be documented in the facility's personnel files including the subject of the course, date, instructor, instructor's credentials or affiliation, and contact hours."

   
   

2. Petitioner proved that Respondent failed to maintain documentation of employees' training in infection control procedures. However, Petitioner failed to prove that the deficiencies cited in the May 25 survey were uncorrected during the applicable timeframe. The statute requires that a facility operator be given an opportunity to correct cited matters. Although repeat offenses may be the basis for a fine, Petitioner must specifically allege such a basis, as it did in this case with respect to resident contracts.

   
   

3. Rule 10A-5.024(3)(b)1 requires that all facilities maintain reports of sanitation inspections, corrections, and deficiencies. Petitioner proved that Respondent violated this provision by failing to correct within the applicable timeframe the omission from its sanitation inspection report of the page used for corrections.

   
   

4. Section 400.426(5) requires that all residents be examined by a health care provider within 60 days prior to admission or 30 days following admission. Petitioner failed to prove that Respondent violated this provision. The deficiency concerning I. M. did not remain uncorrected as of the September 13 resurvey. The Administrative Complaint alleges only that Respondent failed to correct the deficiency by the mandated timeframe, not that Respondent is guilty of repeat violations of the health assessment requirement.

32. Rule 10A-5.0191(2)(a) requires:

The administrator shall ensure that at least one staff member who has a certification in an approved first aid course is within the facility at all times. This course shall include training in the control of bleeding and seizures; the care of abrasions, scratches, cuts, and insect bites; and cardiopulmonary resuscitation (CPR). If the facility has documentation of an American Red Cross first aid and CPR course, no further

documentation is required. Other courses taken in fulfillment of this requirement shall be documented in accordance with subsection (7) of this rule.

1. Petitioner failed to prove that Respondent violated this provision because there is no proof that the required documentation was not supplied during the applicable timeframe. Petitioner did not raise the issue of repeat violations with respect to first aid certification.

   
   

2. Rule 10A-5.019(5)(h) requires that the administrator of the facility shall

   
   

   Assure that members of the staff appear to be free from apparent signs and symptoms of communicable disease, as documented by a statement from a health care provider.

   Newly hired staff shall have 30 days to

   document their communicable disease status. . . .

   
   

3. Rule 10A-5.0131(2)(cc) generally defines "health care provider" as a physician or advanced registered nurse practitioner.

   
   

4. Petitioner failed to prove that Respondent violated Rule 10A- 5.019(5)(h) by not having the required certification and by having certification from a registered nurse rather than an advanced registered nurse practitioner. The three employees present on May 25 were not the same as the three present on September 13. The proof again fails to show that the absent certifications were not obtained during the applicable timeframe, and Petitioner did not allege repeat violations of this provision.

   
   

5. Rule 10A-5.0182(6)(f) prohibits a facility from maintaining a stock supply of over-the-counter medications for multiple resident use and requires that centrally stored over- the-counter medications, which have not been prescribed by a physician, be labelled with a resident's name. Petitioner failed to prove that Respondent failed to correct this deficiency within the applicable timeframe.

   
   

6. Rule 10A-5.0182(4)(a) requires that a facility schedule activities at least five days a week for a total of not less than ten hours per week. Petitioner proved that Respondent violated this provision by failing to correct the deficiency within the applicable timeframe. Although Respondent obtained an activities calendar, Respondent violated this provision by not maintaining a schedule with start times and duration of activities. An activities calendar does residents little good if times are not included.

   
   

7. Rule 10A-5.0182(9) forbids full-bedside rails and allows half-bedside rails only upon physician order. Petitioner failed to prove that Respondent failed to correct the deficiency within the applicable timeframe. Petitioner did not allege a repeat violation regarding restraints.

   
   

8. Rule 10A-5.020(2)(n)2 requires a facility to maintain one week's supply of nonperishable food based on the number of weekly meals the facility has contracted to serve. Respondent did not have sufficient nonperishable food on hand on May 25, 1993. But Petitioner failed to prove that the supply of

   nonperishable food on hand on September 13, 1993 did not equal a one week's supply. The formula upon which Petitioner's witness relied is not set forth in the rules, and Petitioner failed to justify its reliance upon the formula.

   
   

9. Section 400.424 requires that each resident be covered by a contract executed at or prior to admission. Petitioner pleaded this violation as a repeat violation, rather than a violation that was uncorrected during the applicable timeframe. Petitioner proved that Respondent committed a repeat violation of the requirement of an executed contract.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of the violations set forth above and imposing a fine of $750.

ENTERED on July 18, 1994, 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 on July 18, 1994.

COPIES FURNISHED:

Thomas W. Caufman, Esquire

Agency for Health Care Administration 7827 N. Dale Mabry Hwy. #100

Tampa, Florida 33614

James V. Vinson, Owner White House #1

1822 Nebraska Avenue

Palm Harbor, Florida 34683

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, FL 32308

Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, FL 32303

Sam Power, Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, FL 32303

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: 93-007179

Orders for Case No: 93-007179