STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Petitioner, )

vs. ) CASE NOS. 94-5078

) 94-6908

W.T. HOLDING, INC., ) d/b/a ARIES RETIREMENT LIVING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled matter on January 20, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Linda L. Parkinson

Agency for Health Care Administration Division of Health Quality Assurance

400 West Robinson Street, Suite S-309 Orlando, Florida 32801

For Respondent: Esther Zaretsky

1655 Palm Beach Lakes Boulevard Forum III, Suite 900

West Palm Beach, Florida 33401 STATEMENT OF THE ISSUES

The central issue in these cases is whether Respondent, W.T. Holding, Inc. d/b/a Aries Retirement Living violated the minimum licensure standards as set forth in the administrative complaints dated August 15, 1994, and October 27, 1994; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began when the Agency for Health Care Administration (AHCA or the Agency) issued an administrative complaint (AHCA no. 9-94-549 ACLF) on August 15, 1994, that sought to impose an administrative fine against the Respondent,

1. Holding, Inc. d/b/a Aries Retirement Living (Aries or Respondent). The administrative complaint maintained that the Respondent had violated the minimum licensure standards for adult congregate living facilities (ACLF) in violation of Chapter 400, Florida Statutes, and Chapter 10A-5, Florida Administrative Code.

   
   

   The alleged violations arose from surveys or inspections of the Aries facility that had occurred in March, 1994, and which Aries had failed to correct

   on subsequent inspections. Respondent disputed the allegations of the administrative complaint and requested a formal hearing. This case was then forwarded to the Division of Administrative Hearings for formal proceedings on September 13, 1994.

   
   

   Case no. 94-6908 began on October 27, 1994, when the Agency again issued an administrative complaint (AHCA no. 9-94-566 ACLF) that alleged that the Respondent had violated the minimum licensure standards for adult congregate living facilities in violation of Chapter 400, Florida Statutes, and Chapter

   10A-5, Florida Administrative Code. The deficiencies again related to standards and inspections that had begun in March 1994, and April 1994, and to follow-up visits in June 1994, and August 1994.

   
   

   Citing the historical inspections common to these cases in summary form, the Agency alleged the following deficiencies:

   
   

   1. The financial records for the facility were not available for review. As a result, the Agency it was unable to determine whether the facility was administered on a sound financial basis consistent with good business practice.

      
      

   2. Personal funds from one resident were used to purchase plastic gloves without the resident's consent.

      
      

   3. Aries could not produce liability insurance as the certificate of insurance was not available for review.

      
      

   4. The last Health Quality Assurance inspection report was not posted in the facility.

      
      

   5. Aries did not produce proof of radon testing.

      
      

   6. Inaccuracies or deficiencies in the admission and discharge register maintained by Aries were discovered.

      
      

   7. Aries could not establish that its Disaster Preparedness Plan had been reviewed by the Palm Beach County Disaster Preparedness Authority.

      
      

   8. The Aries contract did not clearly provide a 30 days prior written notice of rate increase.

      
      

   9. The facility gave only 24 hours for a resident to move belongings from the unit.

      
      

   10. The statement disclosing Aries' medication policy had not been given to each resident on admission.

       
       

   11. Aries could not produce the required demographic data for all residents, and military service information was not included for any resident.

       
       

   12. Aries did not have documentation for its policy for medication disposal at the end of a resident's stay.

       
       

   13. Aries' food supply contained dented or bulging canned goods, its food supply lacked protein, and without enough water on hand for emergencies.

       
       

   14. Hot water temperature for resident use was recorded at 126 degrees F at 12:30 p.m. on the dates of the survey.

   15. The exit lights were not illuminated in front building; 2 locks were noted on upstairs front exit and downstairs rear exit.

       
       

   16. That medication was transferred for storage and later administration from its original container to syringes by someone other than a pharmacist.

The Respondent has disputed all material allegations of fact. Case no. 94- 6908 was forwarded to the Division of Administrative Hearings for formal proceedings on December 9, 1994.

At the hearing, the Agency presented the testimony of the following witnesses: Mary Ann Roman, an administrative secretary employed by the area 9 office in West Palm Beach; Irwin Fried, a fire protection specialist employed by the Agency; Meryl M. McDonald, a human services surveyor specialist employed by the Agency; and Lois Shimmin, the area 9 supervisor. An exhibit marked for identification as AHCA exhibit 1 was admitted on behalf of the Agency. Patricia Holland, the nurse administrator at Aries; Monica Bradford, a certified nurse assistant employed at Aries; and Willie Davis, a corporate representative for

W.T. Holding, Inc., testified for Aries. Its exhibits numbered 2, 3, 4, 5, and

6 were admitted into evidence.

The transcript of the proceeding was filed on February 3, 1995.

Subsequently, in accordance with their stipulation, a late-filed deposition was filed on February 16, 1995, and the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the parties' proposed findings of fact are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. On January 24, 1994, the Respondent, Aries Retirement Living, which is owned by W.T. Holding, Inc., filed an application for renewal of its license as an ACLF.

   
   

2. The Aries application, completed by its administrator Patricia Holland, provided the following information:

   
   

   The mailing address for the administrator was completed as: 817 11th Street, West Palm Beach, Florida 33401.

   
   

   The mailing address for the corporate or limited partnership-corporate president or partner was: 817 11th Street, West Palm Beach, Florida 33401.

   
   

3. At the time of the surveys (inspections) pertinent to these cases, Respondent had a conditional license to operate an ACLF for eight residents.

   
   

4. The surveys were performed by two Agency employees who divided the review into two areas of expertise. Irwin Fried, a fire protection specialist, surveyed the Aries property for fire safety and physical plant regulation compliance. Meryl McDonald, a human services surveyor specialist, reviewed the property for all other areas of compliance.

5. On March 14, 1994, and subsequently on June 1, 1994 and August 26, 1994, the financial records for the Aries facility were not available for review. Ms. McDonald requested the documents on each visit, but they were not provided by Aries until January 19, 1995.

   
   

6. As a result, the Agency was unable to determine whether the facility was administered on a sound financial basis consistent with good business practice at the times of the surveys.

   
   

7. Ms. McDonald also noted on the survey beginning March 14, 1994, that personal funds from one resident's account were used to purchase plastic gloves without the resident's consent. On December 7, 1994, the resident signed a consent for this appropriation of her funds.

   
   

8. Despite requests from Ms. McDonald, Aries could not produce a certificate of liability insurance for review during the surveys. In this instance, Ms. McDonald asked Mr. Davis for the certificate but Aries did not present the information until January 19, 1995.

   
   

9. For the survey and follow-ups conducted on March 14, 1994, June 1, 1994, and August 26, 1994, the last Health Quality Assurance inspection report was not posted in the Aries facility.

   
   

10. At the times of the survey and follow-ups, Aries did not produce proof of radon testing. According to Mr. Davis, the radon testing was completed in October, 1994 (again several months after the request was made).

    
    

11. Ms. McDonald brought several inaccuracies or deficiencies in the admission and discharge register maintained by Aries to their attention at the March 14, 1994 survey. Such inaccuracies included that seven residents were living in the facility but only three names were noted on the admission register. Further, none of other residents allegedly living in building two were listed. These inaccuracies continued uncorrected at the June 1, 1994, and August 26, 1994 follow-up visits.

    
    

12. At the time of the March 14, 1994, survey and the follow-ups of June 1, 1994, and August 26, 1994, Aries could not establish that its Disaster Preparedness Plan had been reviewed by the Palm Beach County Disaster Preparedness Authority. According to Mr. Davis, this requirement was satisfied by the time of hearing.

    
    

13. The Aries contract did not clearly provide a 30 days prior written notice of rate increase at the times of the survey or follow-ups.

    
    

14. The statement disclosing Aries' medication storage policy was not given to each resident on admission. This deficiency was cited at the March 14, 1994, survey and remained uncorrected on June 1, 1994 and August 26, 1994. However, as of December 8, 1994, Aries corrected this deficiency.

    
    

15. Aries could not produce the required demographic data for all residents, and military service information was not included for any resident. This deficiency was cited at the March 14, 1994, survey and remained uncorrected on June 1, 1994 and August 26, 1994.

    
    

16. At the time of the March 14, 1994, survey, it was noted that a nurse was transferring insulin from labeled containers to syringes for one resident's later use. This procedure, although cited by Ms. McDonald, continued

    uncorrected on the June 1, 1994, follow-up. Later, the resident changed to tablets, and the deficiency was changed to corrected as of the August 26, 1994, follow-up.

    
    

17. Also with regard to medications, Aries could produce no records or documentation to show how medications were disposed of when the resident left the facility. This lack of documentation was noted on March 14, 1994, and remained uncorrected on June 1, 1994 and August 26, 1994.

    
    

18. When Ms. McDonald surveyed the food supply, she noted that a one week supply of non-perishable food, based on the number of weekly meals the facility had contracted to serve, was not on hand. Nor was there enough water in storage for emergencies. Food supplies on hand lacked sufficient protein. This shortage was noted on March 14, 1994, and remained uncorrected on June 1, 1994 and August 26, 1994. Mr. Davis removed dented and bulging cans after the March 14, 1994 survey.

    
    

19. Mr. Fried surveyed the Aries property on March 14, 1994, and found the following conditions:

    
    

    1. Hot water temperature for resident use was recorded at 126 degrees F at 12:30 p.m. on the dates of the survey. On January 19, 1995, this was still uncorrected.

       
       

    2. The structure had openings in the walls which were uncorrected on June 8, 1994.

       
       

    3. The facility had exposed water pipes and exposed electrical wires or missing plates which were uncorrected on June 8, 1994.

       
       

    4. The fire and smoke detector system did not interconnect the front and back buildings to warn staff of an emergency. This condition continued from April 11, 1994 through January 19, 1995.

       
       

    5. The doors to the sleeping rooms were not self closing and latching to reduce smoke circulation during an emergency. This condition was noted during the April 11, 1994, survey and was uncorrected on June 8, 1994.

       
       

    6. The Aries facility did not have a secondary means of egress from the upstairs of the front building. This condition was noted during the April 11, 1994, survey and was uncorrected on June 8, 1994.

       
       

    7. The exit lights were not illuminated in the front Aries building and two locks were noted on the upstairs front exit and downstairs rear exit. This condition was noted during the June 8, 1994, visit and remained uncorrected for the August 25, 1994, follow-up.

    
    

20. Ms. Holland, the administrator for Aries at all times material to these cases, was not at the property during any of the surveys or follow-up visits. Ms. Holland is employed full-time at a hospital and spends irregular hours at the Aries facility.

    
    

21. Mr. Davis was present for the March, 1994, survey but was not present for the subsequent visits. Aries employees attempted to reach Mr. Davis when survey or follow-up visits were made to the facility.

22. At the times of the visits, both Ms. McDonald and Mr. Fried requested to speak to the Aries staff member in charge. All deficiencies noted were itemized to Aries personnel in discussion at the times of the surveys.

    
    

23. Additionally, written notice of the alleged deficiencies was provided to Aries at its address of record.

    
    

24. Respondent's allegations of poor mail delivery or lack of notice have not been deemed credible.

    
    

25. The Respondent did not claim it had not received the deficiency notices until December 7, 1994.

    
    

26. During the June and August, 1994, follow-up surveys, Aries did not claim it had not received the deficiency statement from the prior survey or follow-up.

    
    

27. All deficiencies alleged in these cases are Class III violations.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

29. The Agency bears the burden of proof to establish that the Respondent committed the violations alleged in the administrative complaints.

30. Section 400.419, Florida Statutes, provides, in pertinent part: (1)(a) If the department determines that a

    facility is not in compliance with standards promulgated pursuant to the provisions of this part, including the operation of a facility without a license, the department, as an alternative to or in conjunction with an administrative action against a facility, shall make a reasonable attempt to discuss each violation and recommended corrective action with the owner or administrator of

    the facility, prior to written notification thereof. The department, instead of fixing

    a period within which the facility shall enter into compliance with standards, may request a plan of corrective action from the facility which demonstrates a good faith effort to remedy each violation by a specific date, subject to the approval of the department.

    1. Any facility owner or administrator found in violation of this part, including any individual operating a facility without a license, shall be subject to a fine, set and levied by the department.

    2. Each day during which any person violates any such provision after the date fixed for termination of the violation, as ordered by

       the department, constitutes an additional,

       separate, and distinct violation.

    3. Any action taken to correct a violation shall be documented in writing by the adminis- trator of the facility and verified through follow-up visits by licensing personnel of the department.

    4. If a facility desires to appeal any departmental action under this section, it shall send a written request for a hearing to the department within 15 days of receipt

       of notice of the action of the department. If the fine is upheld, the violator shall pay he fine, plus interest at the legal rate as speci- fied in s. 687.01, for each day beyond the date set by the department for payment of the fine.

       1. 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 actual 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 violation.

       2. Each violation shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The department shall indicate the classification of each violation on the face of the notice of the violation as follows:

       * * *

       (c) 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 department determines indirectly or potentially threaten the physical

       or emotional health, safety, or security of facility residents, other than class I or II violations. 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.

31. Section 400.427, Florida Statutes, provides, in part:

    
    

    Property and personal affairs of residents.

    1. The admission of a resident to a facility and his presence therein shall not confer on the facility or its owner, administrator, employees, or representatives any authority to manage, use, or dispose of any property of the resident; nor shall such admission or presence confer on any of such persons any authority or responsibility for the personal affairs of the resident, except that which

       may be necessary for the safe and orderly management of the facility or for the safety of the resident.

       * * *

       (3) A facility, upon mutual consent with the resident, shall provide for the safekeeping in the facility of personal effects not in excess of $500 and funds of the resident not in excess of $200 cash. A facility shall keep complete and accurate records of all such funds and personal effects received for

       safekeeping. When a resident is absent from a facility for 24 hours or more, the facility may provide for the safekeeping of the resident's personal effects in excess of $500.

32. Section 400.428, Florida Statutes, provides, in part: Resident bill of rights.

    1. No resident of a facility shall be deprived

       of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States solely by reason of status as a resident of a facility. Every resident of a facility shall have the right to:

       1. Live in a safe and decent living environment, free from abuse and neglect.

       2. Be treated with consideration and respect and with due recognition of personal dignity, indivi- duality, and the need for privacy.

       3. Retain and use his own clothes and other personal property in his immediate living quarters, so as to maintain individuality and personal dignity, except when the facility can demonstrate that such would be unsafe, impractical, or an infringement upon the rights of other residents.

       * * *

       (f) Manage his own financial affairs unless he or his guardian authorizes the administrator of the

       facility to provide safekeeping for funds as provided in s. 400.427.

       * * *

       (k) At least 30 days' notice of relocation or termination of residency from the facility unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care or the resident engages in a pattern of conduct

       that is harmful or offensive to other residents. In the case of a resident who has been adjudicated mentally incompetent, the guardian shall be given

       at least 30 days' notice of a nonemergency relocation or residency termination. Reasons for relocation shall be set forth in writing. In order for a facility to terminate the residency of an individual without notice as provided herein, the facility

       shall show good cause in a court of competent jurisdiction.

       
       

33. Section 400.435, Florida Statutes, requires every facility to maintain records and to make records available to the public for inspection. Subsection

    (3) specifically requires an ACLF to post a copy of the last inspection report of the department in a prominent location so that it is accessible to the public.

    
    

34. Section 400.441, Florida Statutes, authorized the Agency to publish rules in order to implement standards to assure that facilities are safe and sanitary. Such standards were to specifically recognize uniform fire safety as well as the sanitary conditions of the facility.

    
    

35. Accordingly, the Agency has adopted rules which are set forth in Chapter 10A-5, Florida Administrative Code. Pertinent to this case are the following provisions, in summary form:

    
    

    Rule 10A-5.021, Florida Administrative Code, which

    sets forth the fiscal standards applicable for an ACLF.

    
    

    Rule 10A-5.014(2)(a)4, Florida Administrative Code, which requires a facility to obtain and keep in force liability insurance.

    
    

    Rule 10A-5.020, Florida Administrative Code, which sets forth the food service standards and specifies that a one week supply of non-perishable food must

    be on hand at all times (including sources of protein and water).

    
    

    Rule 10A-5.024, Florida Administrative Code, requires the following records be made available to the Agency:

    1. Admission and discharge register.

    2. Daily up-to-date medication records.

    3. A written disaster preparedness plan which must be reviewed by the local disaster preparedness authority.

    4. Demographic data maintained on each resident, including military service.

    5. Copies of facility inspection reports.

    6. A provision for at least 30 days prior written notice of rate increase.

    7. A provision giving a resident at least

    7 days to remove personal belongings from a unit.

    
    

    Rule 10A-5.0182(6)(d), Florida Administrative Code, prohibits anyone, other than a pharmacist from transferring medications from one storage container

    to another. Such rule further provides that when a resident's stay at the facility has ended, that the facility return all medications to the resident, the resident's family, or dispose of the medication with at least one witness.

    
    

    Rule 10A-5.0221, Florida Administrative Code, requires that hot water for a facility be a minimum of 105 degrees Fahrenheit but not hotter than 115 degrees F.

    
    

    Rule 10A-5.023(18), Florida Administrative Code, requires that fire safety protection shall be governed by Chapter 4A-40, F.A.C., Uniform Fire Safety Standards for Adult Congregate Living Facilities which provides, in the minimum, that exits be accessible (not blocked or locked), and

    that fire protection systems be in good working order.

    
    

    Rule 10A-5.023(23), Florida Administrative Code, requires that indoor radon testing be completed by all facilities.

    
    

36. In this case, the Agency cited numerous deficiencies which the Respondent ignored over a period of several months. While some of the cited problems were corrected by the time of hearing, the Respondent failed or otherwise refused to timely complete the corrections in accordance with the notice provided. Respondent's failure to appropriately respond to the surveys constitutes a gross indifference to the Agency's authority to verify and enforce the standards set by law. The Agency has established sixteen Class III violations as set forth in the summary above. Respondent is liable for an administrative fine based on those violations.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Agency for Health Care Administration enter a final order imposing an administrative fine in the amount of $8000.00.

DONE AND RECOMMENDED this 5th day of April, 1995, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 5th day of April, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 94-5078 and 94-6908

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 13 are accepted.

Rulings on the proposed findings of fact submitted by the Respondent:

1. The Respondent's "Proposed Order" was not in a format to readily review for proposed findings of fact. Paragraph 1 states:

   Petitioner has failed to meet its burden pursuant to Florida Statutes Section 400.419(1)(a) of communicating a recommended corrective action and informing the facility of the deficiencies prior to imposing violations and penalties.

   Such statement is rejected as a conclusion of law which is not established by this record.

2. Paragraphs 1a. through 1e. are rejected as irrelevant, contrary to the weight of credible evidence, or argument.

3. Paragraph 1f. is a restatement of law, not a fact and is rejected as such.

4. Paragraph 2 is rejected as irrelevant or contrary to the weight of credible evidence.

5. Paragraph 3 is rejected as argument or conclusion of law not applicable to this case.

6. Paragraphs 4a. through 4u., except as specifically found above, are rejected as contrary to the weight of the credible evidence or irrelevant.

7. Paragraph 5 is rejected as argument or conclusion of law not applicable to this case.

COPIES FURNISHED:

Tom Wallace, Assistant Director Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Sam Power, Agency Clerk Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Esther Zaretsky

1655 Palm Beach Lakes Boulevard Forum III, Suite 900

West Palm Beach, Florida 33401

Linda L. Parkinson

Agency for Health Care Administration Division of Health Quality Assurance

400 W. Robinson Street, Suite S-309 Orlando, Florida 32801

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: 94-005078

Orders for Case No: 94-005078