STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4475

) AHCA NO: 0594-104-ACLF SCARLET MANOR, INC., )

d/b/a SCARLET MANOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings held a formal hearing in this matter on April 11, 1995, in New Port Richey, Florida.

APPEARANCES

For Petitioner: Thomas W. Caufman, Esquire

Division of Health Quality Assurance Agency For Health Care Administration 7827 North Dale Mabry Highway, Suite 100 Tampa, Florida 33614

For Respondent: Eloise Taylor, Esquire

Taylor and Wilkerson 11912 Oak Trail Way

Port Richey, Florida 34668 STATEMENT OF THE ISSUES

Should Respondent's license to operate an Adult Congregate Living Facility (ACLF) be denied based on the allegations contained in the denial letter of July 1, 1994?

PRELIMINARY STATEMENT

By letter dated July 1, 1994, the Agency For Health Care Administration (Agency) denied the Respondent renewal of its license to operate Respondent's ACLF pursuant to Section 400.414(1), Florida Statutes, and Chapter 10A-5, Florida Administrative Code, on the basis that Respondent had failed to maintain minimum standards for an ACLF as evidenced by Respondent's failure to timely correct previously identified deficiencies. By letter dated July 29, 1994, the Respondent denied the allegations and requested a formal hearing. By letter dated August 10, 1994, the Agency referred the matter to the Division of Administrative Hearings (Division) for the assignment of a hearing officer and the conduct of a hearing.

In support of its allegations, the Agency presented the testimony of Robert

W. Kelley, Joseph W. Schuler, Diane Cruz and John C. Morton. Agency's exhibits

1 through 3 were received as evidence. The Respondent presented the testimony of Ray C. Dorman and Ruth Dorman. Respondent's exhibits 1 through 4 were received as evidence. Official recognition was taken of the administrative complaint and final order issued in State of Florida Agency For Health Care Administration vs. Scarlet Manor,Inc.,d/b/a Scarlet Manor, ACHA No.:05-94-052- ACLF, Final Order issued on September 7, 1994, and State of Florida Agency For Health Care Administration vs. Scarlet Manor, Inc., d/b/a Scarlet Manor, AHCA No.: 05-94-053-ACLF, Final Order issued on September 7, 1994.

A transcript of this proceeding was filed with the Division on May 2, 1995.

The parties timely filed their proposed recommended orders. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the evidence presented at the hearing, the following relevant findings of fact are made:

1. The Respondent, Scarlet Manor, Inc., d/b/a Scarlet Manor is located at 13009 Lake Carl Drive, Hudson, Florida. At all times material to this proceeding, Respondent has been licensed by the Agency to operate an ACLF (facility) at 13009 Lake Carl Drive, Hudson, Pasco County, Florida, housing a maximum of 40 residents. Ray Dorman is the owner of Scarlet Manor and has operated the facility since 1984. The facility primarily serves clients who are or have been diagnosed as suffering from a mental illness.

   
   

2. On January 14, 1994, the Agency conducted a biennial survey of the facility and found violations in 68 categories of Class III deficiencies. During an exit interview on January 14, 1994, following the completion of the biennial survey, the Respondent's employee was advised of the deficiencies and was told that the deficiencies had to be corrected by February 14, 1994.

   
   

3. The Agency reported the results of its biennial survey in a Summary of Deficiencies For ACLF Licensure Requirements (Summary of Deficiencies). A copy of the Summary of Deficiencies was furnished to the Respondent, who acknowledged on February 21, 1994, that a copy of the Summary of Deficiencies had been received on February 19, 1994. As indicated by the Summary of Deficiencies, a large number of the deficiencies were cited due to the unavailability of records at the time of the biennial survey. The records were kept at Ray Dorman's residence rather than the facility and Mr. Dorman was not available on the day of the survey to produce the records. Another large number of the deficiencies pertain to record keeping, and one would have to strain to show that such deficiencies, individually or jointly, "indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents".

   
   

4. At the time Respondent acknowledged receipt of the Summary of Deficiencies it requested an extension for correcting the deficiencies from February 14, 1994, until March 21, 1994. The Agency granted the request for extension. The Respondent did not request any further extension.

   
   

5. On March 21, 1994, the Agency revisited the facility and determined that 15 deficiencies remained uncorrected. The Respondent was again provided with a Summary of Deficiencies which, under column (4), indicated March 21, 1994

   as the date of revisit, the identifying number of the deficiency and whether the deficiency was corrected or not corrected on the date of revisit.

   
   

6. By letter dated July 1, 1994, the Agency denied Respondent's application for renewal of its license to operate the facility which had expired on March 11, 1994. The specific basis for the Agency's denial was the Respondent's failure to maintain minimum standards for an ACLF as evidenced by the Respondent's failure to correct the 15 deficiencies previously identified in the Summary of Deficiencies as not being corrected within the Agency's extended time of March 21, 1994. The letter identified and listed only 11 uncorrected deficiencies. The difference in numbers of deficiencies in the Summary of Deficiencies (15) and those listed in the denial letter (11) results from the Agency combining deficiencies ACLF300, ACLF301 and ACLF303 as number 3; above combining deficiencies ACLF702 and ACLF703 as number 4 above; and failing to list deficiency F.S.28, a catch all deficiency, pertaining to the failure to meet all federal, state and local codes as evidenced by the other listed deficiencies.

   
   

   No documentation of radon testing.

   
   

7. Deficiency ACLF203 in the Summary of Deficiencies alleges that the facility did not have proof that radon testing as mandated by Section 400.056, Florida Statutes, has been conducted. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit.

   
   

8. On January 14, 1994, the Respondent did not have documentation of radon testing for the facility because there had been no testing of the facility for radon. During the interim between January 24, 1994, and March 21, 1994, the Respondent was in the process of engaging someone to test the facility for radon. However, due to the cost of testing the facility for radon and the availability of people certified to test for radon, the Respondent was unable to have the radon test completed by March 21, 1994, but Respondent did have the radon test (analysis) of the facility completed and documentation available on March 28, 1994.

   
   

   No documentation that all employees are free from signs and symptoms of communicable disease.

   
   

9. Deficiency ACLF508 in Summary of Deficiencies alleges that on January 14, 1994, staff did not appear to be free from apparent signs and symptoms of communicable diseases, as documented by a statement from a health care provider, in that there was no statement for five of the six employees reviewed; three of whom had been employed over 30 days. Also it was noted that two of the employees had T. B. and VDRL tests only. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit.

   
   

10. On January 14, 1994, the Respondent failed to produce certification from a health care provider certifying that employees Cheryl O'Shell, Cindy Plunkett and Arlene Hutchinson, who had been employed for over thirty days, were free of communicable diseases. Apparently the other four employees either had the required certification or had not worked for the Respondent over 30 days. Rule 10A-5.0131(2)(cc), Florida Administrative Code, defines a health care provider as physician duly licensed under Chapter 458 or 459, Florida Statutes, or an advanced registered nurse practitioner (ARNP) duly licensed under Chapter 464, Florida Statutes.

11. On March 21, 1994, at the time of the Agency's revisit, facility employee Cheryl O'Shell had test results but no certification from a health care provider. On March 21, 1994, facility employees Arlene Hutchinson and Cindy Plunkett had test results and a certification signed by registered nurse rather than an health care provider. This deficiency has subsequently been corrected.

    
    

    Appropriate resident contracts were not on file or did not contain required elements.

    
    

12. Deficiency ACLF300 in the Summary of Deficiencies alleges that: (a) a female resident had signed the resident contract on May 4, 1989, however, a legal guardian was appointed January 17, 1992 and the contract was not re- executed; and (b) another female resident did not have an executed contract in her record available for review. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit.

    
    

13. Facility resident Tina Mickler, the female resident referred to in 12(a) above, had signed a contract in 1989 upon admission to the facility prior to being adjudicated incompetent and having a guardian appointed by the court. After Tina Mickler signed the contract on admission, Tina Mickler and her father, jointly executed a contract with the facility before her father was appointed guardian on January 17, 1992. After the March 21, 1994, revisit, Tina Mickler's father, as guardian, executed a new contract with the facility on behalf of Tina Mickler.

    
    

14. Facility resident Mary Heagrey, the female resident referred to in 12(b) above, had a signed contract on file with the facility on January 14, 1994 and on March 21, 1994, notwithstanding testimony of the Agency witness to contrary. Apparently, the contract was overlooked when reviewing her records.

    
    

15. Deficiency ACLF301 in the Summary of Deficiencies alleges that the facility resident contract did not contain certain provisions required by statute and rule. It is further alleged that only one provision of the resident contract had been corrected at the time of the March 21, 1994, revisit.

    
    

16. The Agency reviewed nine out of 28 resident contracts. Some of the nine contracts reviewed did not have all of the provisions that were required by statutes and rules as of January 14, 1994. There was no evidence that the contracts were not in accordance with the statutes and rules at the time they were executed by the resident. At the time of the revisit on March 21, 1994, the provision identified as number 1 under ACLF301, concerning prorated refunds for the unused portion of payments after termination, had been corrected. However, those provisions identified as numbers 2, 3 and 4 under ACLF301, concerning refunds if the facility discontinues operation, disbursement of refunds under Florida Probate Code for a deceased resident and the handling of funds where they are not disbursed under the Florida Probate Code, respectively, were not corrected in that those resident contracts lacking those provision had not been replaced with a newly executed contract with those provisions or had those provisions added to the contract with an addendum. This deficiency has subsequently been corrected.

    
    

17. Deficiency ACLF303 in the Summary of Deficiencies alleges that on January 14, 1994, the facility did not have for review an admission package, and as such, it could not be determined that all information was included as required by Rule 10-5.024(2)(a)3., Florida Administrative Code. It is further alleged that this deficiency was not corrected at the time of March 21, 1994, revisit.

18. The facility did not have an admission package per se for review during the Agency's January 14, 1994, or March 21, 1994, visits. However, the facility did have the necessary documents to review with a new resident but they were not contained in a packet to give to the resident; therefore, the Agency could not determined if all required information was included. This deficiency has been corrected in that the facility now has an admission packet.

    
    

    No documentation of social or leisure services activities and activities calendar were followed.

    
    

19. Deficiency ACLF702 in the Summary of Deficiencies alleges that on January 14, 1994, that it could not be determined that opportunities were provided for social and leisure services to facilitate social interaction, enhance communication and social skills, and reduce isolation and withdrawal. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit.

    
    

20. Deficiency ACLF703 in the Summary of Deficiencies alleges that on January 14, 1994, the administrator or designee had not fulfilled his responsibility for the development and implementation of or arrangement for participation by residents in an ongoing activities program. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit.

    
    

21. While there appeared to be some effort on the part of the facility to fulfill its responsibility Rule 10A-5.0182(4), Florida Administrative Code, at the time of the January 14, 1994, survey and the March 14, 1994, revisit, regarding social and leisure services, to provide a activities calendar and to develop and implement arrangements for participation by residents in an ongoing activities program, the facility's effort fell short of what is required in this regard. However, the facility's efforts in this regard subsequent to the March 21, 1994, revisit have corrected those deficiencies.

    
    

    Residents rights and freedoms not protected or provided for.

    
    

22. Deficiency ACLF705 in the Summary of Deficiencies alleges that the facility has a written policy that no one is allowed to go to the store after dark which is an infringement on the residents' rights and freedoms. There was testimony concerning a facility policy of requiring resident visitors to be cleared with the Administrator; however, this was not covered in the Summary of Deficiencies under deficiency ACLF705 or any other deficiency.

    
    

23. At the time of both the January 14, 1994, survey and the March 21, 1994, revisit, the policy of the facility was not to allow residents to leave the facility after dark and that visitors were to be cleared by the administrator. The basis for these policies was the safety of the residents due the location of the facility, particularly, the policy of not leaving the facility after dark to go to the store. This is no longer a policy of the facility. The facility residents are free to come and go as they may desire.

    
    

    Lack of documentation of facilities response to resident complaints.

    
    

24. Deficiency ACLF710 in the Summary of Deficiencies alleges that there was no documentation that the facility responded to resident complaints, in that there was no procedure available for review of complaints received and responses documented.

25. While there was evidence that the facility did encourage filing complaints and did respond to complaints received, the facility did not have an established procedure whereby the review of complaints received and responses were documented. The facility now has an established procedure for documenting the review of complaints and responses.

    
    

    Furnishings not in good repair.

    
    

26. Deficiency ACLF904 in the Summary of Deficiencies alleges that furniture was not in good repair, as evidenced by the worn, torn and broken sofa and chairs in the lounge area. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit.

    
    

27. At the time of the March 21, 1994, revisit there was a torn chair in the lounge area. Ray Dorman testified that the furniture observed on March 21, 1994, was not the same furniture observed on January 14, 1994, because that furniture had been thrown away. Dorman further testified that the torn chair observed at the time of the March 21, 1994, revisit had been torn by a resident in interim between the January 14, 1994, survey and the March 21, 1994, revisit. However, I do not find this testimony to be credible, particularly since the Agency employee conducting the revisit was not made aware of this by anyone at the facility.

    
    

    Proper care not being given to insect control.

    
    

28. Deficiency ACLF905 in the Summary of Deficiencies alleges that there is lack of an effective control method to prevent against flies, rodents and other insects from entering the facility as evidenced by: (a) exit doors at end of each corridor did not close properly; and (b) doors to center patio did not close properly. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit.

    
    

29. This deficiency did exist on January 14, 1994, and was not corrected at the time of the March 21, 1994, revisit. However, this deficiency was corrected shortly after the March 21, 1994, revisit.

    
    

    Hot water exceeds maximum allowable temperature.

    
    

30. Deficiency ACLF1023 in the Summary of Deficiencies alleges that hot water service to lavatories, showers and baths for residents' use had water temperature readings of 135 degrees thereby exceeding the maximum of 115 degrees provided for in Rules 10A-5.0221(3) and 10A-5.023(10)(e), Florida Administrative Code.

    
    

31. This deficiency did exist on January 14, 1994, and was not corrected at the time of the March 21, 1994, revisit. This deficiency was corrected after the March 21,1994, revisit, and the day of the hearing the hot water temperature for the residents' use was at 115 degrees.

    
    

    Automatic smoke detectors not serviced.

    
    

32. Deficiency F.S.17 in the Summary of Deficiencies alleges that there was no documentation of the automatic smoke detectors having the required sensitivity test during the past two years.

33. The facility had documentation of annual inspections of the automatic smoke detectors for March 23, 1993, March 11, 1994 and March 13, 1995. Both the 1994 and 1995 report shows the automatic smoke detectors having the required sensitivity test. However, while the 1993 report does indicate that the required sensitivity test was conducted, Ray Dorman's testimony, which I find credible in this regard, was that the test was performed and paid for, but the failure to note that on the report was an oversight which he failed to note and have corrected. The evidence appears to show that the Agency was not provided with these reports at the January 14, 1994, or March 21, 1994, visits.

    
    

    Emergency lighting inoperable.

    
    

34. Deficiency F.S.21 in the Summary of Deficiencies alleges that the emergency lighting was not maintained as evidenced by the lights in the corridors or dining room failing to operate when tested.

    
    

35. This deficiency existed at the time of the January 14, 1994, survey. During the interim between January 14, 1994, and March 21, 1994, Ray Dorman caused the emergency lighting system to be checked and repaired. However, on March 21, 1994, there was one light out in the west corridor; therefore, the Agency considered the deficiency as not being corrected.

    
    

36. There was no evidence that any of the above deficiencies was a repeat deficiency as that term is defined in Rule 10A-5-0131(2)(xx), Florida Administrative Code, or that they were recurring deficiencies.

    
    

37. There was sufficient evidence to show that the above deficiencies, in the aggregate, did potentially threaten the health, safety, or welfare of the facility residents.

    
    

38. The deficiencies cited in the administrative complaint in AHCA No.: 05-94-053-ACLF were the same deficiencies cited in the denial letter of July 4, 1994, which eventually resulted in a default Final Order being issued against

    Scarlet Manor on the basis of the administrative complaint on September 7, 1994. Administrative fines in the amount of $3,250 were assessed against Scarlet Manor, which fines remain unpaid and no payment plan has been arranged.

    
    

39. A default Final Order was issued against Scarlet Manor in AHCA No.: 05-94-052-ACLF on September 7, 1994, wherein an administrative fine in the amount of $1,750 was assessed against Scarlet Manor, which fines remain unpaid and no payment plan has been arranged.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

41. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation

    v. J.W.C. Company, Inc., 396 So.2d 778 (2d DCA Fla. 1981). To meet this burden the Agency must establish facts upon which its allegations are based by a preponderance of the evidence. Section 400.414(1), Florida Statutes.

    
    

42. Section 400.414(1), Florida Statutes, empowers the Agency to deny, revoke, or suspend a license to operate a ACLF or impose an administrative fine

    if the Agency finds any of the grounds enumerated in Section 400.414(2)(a)-(h), Florida Statutes, to exist.

    
    

43. Pertinent to this case, Section 400.414(2)(g) Florida Statutes, provides as follows:

    
    

    (2) Any of the following actions by a facility or its employee shall be grounds for action by the agency against a licensee:

    * * *

    (g) Failure of the licensee during relicensure, or failure of a licensee that holds an initial or change of ownership license, to meet minimum license standards or the requirements of rules adopted under this part.

    
    

44. Rule 10A-5.033(1)(b) and (4)(a)4.and (d), Florida Administrative Code, provide as follows:

    
    

    1. Survey deficiency.

       * * *

       (b) Administrative fines shall be imposed for deficiencies which are not corrected within the time frame set by the department in its written notification and for repeat deficiencies, as set forth in s. 400.419(3), F.S.

       * * *

       (4) License denial, suspension, and revocation.

       (a) The department may deny an initial or biennial renewal application for a standard license, a limited nursing services license, a limited mental health license, or an extended congregate care license or may suspend or revoke any such license for any of the following actions by a facility owner, administrator, or employee:

       * * *

       4. Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant

       to Chapter 400, Part II, F.S., which are documented pursuant to Rule 10A-5.033(1)(a), F.A.C. . . .

       * * *

       (d) The department shall not renew the license of

       an owner who has outstanding fines assessed pursuant to Chapter 400, Part II, F.S., or this rule which are in final order status, unless a payment plan

       has been arranged and payments are current. For the purpose of this paragraph, a "final order status" means the conclusion of proceedings under Chapter 120, F.S., or the choice not to contest

       the assessment under Chapter 120. (Emphasis supplied)

       
       

45. Rule 10A-5.0131(2)(xx), Florida Administrative Code, provides as follows:

    
    

    Repeat Deficiency. A deficiency which is cited as a result of a survey conducted pursuant to Rule 10A-5.033(1), F.A.C., following a citation

    for the same deficiency occurring within the current or immediately preceding licensure period. (Emphasis supplied)

    
    

46. The deficiencies cited in the instant case are not repeat deficiencies in that there is no allegation of earlier citations for these same deficiencies during the current or immediately preceding licensure period. There are deficiencies that were not corrected within the time frame (March 21, 1994) set by the Agency and the subject of AHCA No.: 05-94-053-ACLF for which Scarlet Manor was assessed administrative fines in the amount of $3,250.

    
    

47. Rule 10A-5.023, Florida Administrative Code, requires that a facility complete indoor radon testing. Although the radon testing was in progress before March 21, 1994, the testing was not completed and reported until after the specified time; therefore, the Agency has technically proven that the deficiency was not corrected within the specified time, notwithstanding that the testing was completed and reported on March 28, 1994.

    
    

48. Rule 10A-5.019(5)(h), Florida Administrative Code, requires that a facility document with a certification from a health care provider that all staff members who have been employed over 30 days are free from signs and symptoms of communicable disease. The facility did not have such required certification on three of its employees on March 21, 1994; therefore, the Agency has proven that the deficiency was not corrected on March 21, 1994, notwithstanding that the certification was later obtained. This deficiency was completely corrected after the March 21, 1994, revisit.

    
    

49. Section 400.424, Florida Statutes, requires that the presence of each resident be covered by a contract, executed at the time of admission or prior thereto, between the facility and the resident or his designee or legal representative. Tina Mickler executed the contract on admission while she was competent and before a guardian was appointed. There was no evidence that the contract executed by Tina Mickler at the time of her admission, while competent, was invalid, had expired or been terminated. Furthermore, I find no statutory or rule authority, nor has any authority been pointed out, requiring the termination of the contract executed by Tina Mickler while she was competent and a new contract executed by the guardian. The Agency failed to prove that Mary Heagrey did not have a contract on file with the facility. The Agency has failed to prove this alleged deficiency.

    
    

50. Rule 10A-5.024(2)(a)7., Florida Administrative Code, requires that a facility include certain provisions in its resident contracts. The resident contracts reviewed on January 14, 1994, did not have those provisions. On reviewing those contracts on March 21, 1994, the Agency found that the contracts had not been replaced with newly executed contracts with those provisions added or had those provisions added to the existing contracts as an addendum. This deficiency was corrected after the March 21, 1994, revisit.

    
    

51. Rule 10A-5.0182(4)(a), Florida Administrative Code, requires each facility to provide and promote resident participation in an ongoing activities program tailored to the residents' needs, abilities and interests. The record shows that although the facility was attempting to comply with the rule, its efforts failed to meet the requirements of the rule in this regard. Additionally, this rule requires a facility to have an activities calendar and scheduled activities for a minimum number of days and hours during the week. Although the facility had what it called an activities calendar, the calendar failed to meet the requirements of the rule concerning planned activities as

    well as showing that the required number of hours of activities had been accomplished. These deficiencies were corrected after the March 21, 1994, revisit.

    
    

52. Section 400.428(1)(d), Florida Statutes, provides that the residents shall have right to visit any person of their choice during certain hours of the day. The attempt by the administrator to limit that right by requiring all visitors to be cleared by him was an infringement on that right. This deficiency was corrected after the March 21, 1994, revisit.

    
    

53. Section 400.428(1)(e), Florida Statutes, provides the residents freedom to participate in and benefit from community services and activities so as to achieve the highest level of independence, autonomy and interaction with the community. Although the administrator's policy of not allowing residents "to go the store after dark" may be an infringement on the residents' right set out above, the policy does have a legitimate basis: the safety of the residents. This deficiency was corrected after the March 21, 1994, revisit.

    
    

54. Section 400.428(1)(l), Florida Statutes, and Rule 10A-5.0182(7)(d), Florida Administrative Code, requires the facility to have a procedure for receiving and responding to resident complaints and that the procedure, the complaints received and responses to the complaints received be documented. While the facility did receive and respond to resident complaints, the complaints, responses to complaints and procedure was not documented. The facility corrected this deficiency after the March 21, 1994, revisit.

    
    

55. Rule 10A-5.022(1)(e), Florida Administrative Code, requires that the facility keep all furniture clean, in good repair, reasonably attractive. On January 14, 1994, and on March 21, 199, there was furniture in the facility that was not in good repair. All worn and torn furniture and furniture and not in good repair was removed from the facility and replaced by new furniture after the March 21, 1994, revisit.

    
    

56. Rule 10A-5.022(1)(g), Florida Administrative Code, requires that a facility to employ effective control methods to protect against the entrance into the facility of flies, rodents and other vermin. On January 14, 1994, some of the exterior doors could not be closed so as to prevent entrance of flies, rodents and other vermin. This deficiency had not been corrected on March 21, 1994. All exterior doors have now been repaired or replaced so as to prevent the entrance of flies, rodents and other vermin.

    
    

57. Rule 10A-5.0221(3),Florida Administrative Code, requires that hot water service to lavatories, showers and baths for residents be capable of supplying water at a minimum of 105 Fahrenheit and a maximum of 115 degrees Fahrenheit. The temperature of the hot water at the facility on January 14, 1994, and March 21, 1994, was 135 degrees Fahrenheit. This deficiency was corrected after the March 21, 1994, revisit.

    
    

58. Rule 10A-5.023(18), Florida Administrative Code, and Section 21-3.2.9, 5-9, "Life Safety Code", NFPA 101, 1988 Edition as adopted by Rule 4A-40.028, Florida Administrative Code, require that emergency lighting in all corridors be operable at all times. On January 14, 1994, the emergency lighting in some of the corridors in the facility was inoperable. This was corrected during the interim between January 14, 1994, and the time of the March 21, 1994, revisit; however, on March 21, 1994, there was one light not working in one of the corridors. This has now been corrected.

59. Rule 10A-5.023(18), Florida Administrative Code, and Section 8-3.4.2, "Life Safety Code", NFPA 72E, 1988 Edition as adopted by Rule 4A-40.028 Florida Administrative Code, require documentation of automatic smoke detectors sensitivity testing within the past two years. Although there was documentation of such testing, the documentation was not furnished to the Agency at either of its visits.

    
    

60. The Agency has shown that the facility failed to correct the deficiencies listed in its denial letter within the specified time given for correction of those deficiencies with the exception of deficiency ACLF 300. These deficiencies are not multiple and repeated violations of minimum standards or rules adopted pursuant to Chapter 400, Part II, F.S. as is required by the Agency's own rule adopted pursuant to Section 400.419, Florida Statutes, for the denial, suspension and revocation of a license. However, the Agency has proven that the facility has outstanding fines which are in "final order status" for which there has been no payment plan arranged.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, and considered the factors set forth in Section 400.419(2), Florida Statutes, and Rule 10A-5.033, Florida Administrative Code, it is recommended that the Petitioner Agency For Health Care Administration enter a final order finding that Respondent Scarlet Manor has outstanding fines for which there has been no payment plan arranged. It further recommended that Respondent Scarlet Manor's renewal license be denied unless such fines are paid forthwith or a payment plan is arranged under the terms and conditions the Agency deems appropriate.

RECOMMENDED this 21st day of June, 1995, in Tallahassee, Florida

WILLIAM R. CAVE, 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 21st day of June, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4475

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact:

1. Proposed findings of fact 1 through 23are adopted in substance as modified in Findings of Fact 1 through 39.

Respondent's Proposed Findings of Fact:

1. Proposed findings of fact 1 through 9 are adopted in substance as modified in Findings of Fact 1 through 36.

COPIES FURNISHED:

Thomas W. Caufman, Esquire

Division of Health Quality Assurance Agency for Health Care Administration 7827 N. Dale Mabry Highway, Suite 100 Tampa, Florida 33614

Eloise Taylor, Esquire Taylor and Wilkerson 11912 Oak Trail Way

Port Richey, Florida 34668

Sam Powers, Agency Clerk

Agency for Health Care Administration The Atrium, Ste. 301

325 John Knox Road Tallahassee, Florida 32303

Jerome W. Hoffman, General Counsel Agency for Health Care Administration The Atrium, Ste. 301

325 John Knox Road Tallahassee, Florida 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: 94-004475

Orders for Case No: 94-004475