STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5679

)

GEM HOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Orlando, Florida, on February 7, 1996, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linda L. Parkinson, Esquire

Agency for Health Care Administration Health Quality Assurance

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

For Respondent: Dean F. Mosley, Esquire

McCrary & Mosley

47 East Robinson Street, Suite 211 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether Respondent's license to operate an Adult Congregate Living Facility should be disciplined because of the deficiencies identified in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 1, 1995, Richard H. Reysen, Area Seven Supervisor for the Agency for Health Care Administration's Division of Health Quality Assurance, indicated the Agency's intent to impose an administrative fine against the Respondent, Gem House, for nineteen separate deficiencies identified in the facility's operation during a survey conducted on December 19, 1994, and follow-up visits thereto conducted on March 21, March 28 and June 14, 1995. By undated letter received in the Agency's office on November 13, 1995, Iris Nelson, on behalf of the facility, requested a formal hearing and this hearing ensued.

Ms. Nelson, Respondent's Administrator, was not present at the time and location set for the hearing. Respondent was represented by counsel as

indicated who, at the hearing, filed a Motion to Consolidate, Request for Hearing and To Continue. Counsel's position was that the Agency's indicated intent to deny relicensure was based on the same conditions which supported the Administrative Complaint, and to expose Respondent to two hearings based on the same deficiencies was not fair. The Request for Hearing on the denial was filed with the Hearing Officer at the hearing on the license discipline. It had not been filed with the Agency in the case regarding the denial and was not properly before the Hearing Officer as the denial case had not been referred to the Division of Administrative Hearings.

Further, Respondent's counsel alleged that he and counsel for the Agency had been involved in settlement negotiations and had agreed upon the terms of a settlement which had been transmitted to Agency officials in Tallahassee, and the rejection of which he had not been informed until 5:00 PM on the day before the hearing. He claimed, therefore, he was at a disadvantage because Respondent believed the violations hearing would be cancelled because of the stipulation.

Counsel for the Agency denied there was any agreement on the terms of a stipulation or that Respondent had been advised the violations hearing would be postponed. In any event, counsel has been representing Respondent in this matter since December 1995.

Approximately one-half hour after the scheduled time for commencement of the hearing, Respondent's Administrator, Ms. Nelson, still had not appeared. The Hearing Officer recessed the hearing to allow counsel to attempt to contact his client. Counsel thereafter reported he had not been able to reach Ms.

Nelson as she had left the facility. Thereupon, the Hearing Officer continued the recess for another fifteen minutes to allow Ms. Nelson additional time to appear. When that time had elapsed, the hearing was convened and the motions for consolidation and continuance were denied. Counsel for Respondent thereafter advised the Hearing Officer, for the record, that Respondent admitted all the matters alleged in the Administrative Complaint filed herein.

Petitioner submitted a copy of the Administrative Complaint. Respondent presented no evidence.

No transcript was provided and neither counsel indicated they would submit or submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the matters alleged in the Administrative Complaint, the Agency for Health Care Administration, (Agency), was the state agency responsible for the licensure and regulation of Adult Congregate Living Facilities, (ACLF), in Florida. Respondent, Gem House, is licensed to operate an ACLF at 2809 Round About Lane in Orlando, Florida.

   
   

2. On December 19, 1994, representatives of the Agency conducted an inspection visit of the Respondent's facility and discovered certain deficiencies. These included:

   
   

   1. The facility had not maintained a file of all previous reports for the past five (5) years. This deficiency, cited at the initial visit, was still uncorrected at the follow-up visit of March 28, 1995 and at the desk review conducted on April 21, 1995.

   2. The facility had not provided a handout to residents, family or guardians outlining its provisions for assisting residents to obtain health care. This deficiency, cited at the initial visit, was uncorrected at the March 28, and June 14, 1995 follow-up visits.

   3. The facility had not maintained complete personnel files on each staff as documentation they are competent and properly trained. This deficiency, cited at the initial visit, was uncorrected at the March 28 and June 14, 1995 follow-up visits and at the April 21, 1995 desk review.

   4. The facility continued to use staff who had no training in infection control procedures within ten (10) days of beginning employment. This deficiency, cited at the December 19,

      1994 visit, was uncorrected at the March 28 and June 14, 1995 follow-up visit and at the April 21, 1995 desk review.

   5. No staff had participated in continuing education related to nutrition on an annual basis. The last course taken was in May, 1993. This deficiency, cited at the December 19, 1994 survey, was uncorrected at the March 28, 1995 follow-up visit.

   6. The facility did not execute contracts for each resident upon admission or prior thereto. This deficiency, cited at the December 19, 1994 survey, was uncorrected at the March 28 and June 14, 1995 follow-up visits, and at the April 21, 1995 desk review.

   7. The facility gave no admission packets to the residents' responsible parties or guardians. They had not received a copy of the resident contract, facility rules and regulation, a copy of the Resident Bill of Rights, the facility admission policies, retention and discharge policies, medication storage policies, refund policies or the fee schedule for additional services. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits and at the April 21, 1995 desk review.

   8. The facility had not completed demo- graphic data reports on file for each resi- dent. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28, 1995 follow-up visit and at the April 21, 1995 desk review.

   9. The health assessments were not complete in their entirety to give a full view of the residents' capabilities. This deficiency, cited at the December 19, 1995 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits.

   10. The administrator had not provided in- service training to her staff concerning ACLF core areas relevant to their job duties. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits.

   11. The facility did not provide staff with a current certification in an approved first aid course. This deficiency, cited at the December 19, 1994 survey, remained uncorrected

       on the March 28 and June 14, 1995 follow-up visits.

   12. The administrator had not designated in writing any staff person trained in first aid to act in her behalf during her absences from the ACLF. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits and at the April 21, 1995 desk review.

   13. The method of management for resident medications (self-administer, supervision of self-administration, or administration), was not identified on all resident health assess- ments. The administrator chose to supervise the self-administration of medication rather than contact the physician for clarification. This deficiency, cited at the December 19, 1994 survey, remained uncorrected on the March 28 and June 14, 1995 follow-up visits.

   14. No staff person had been designated in writing as properly trained and available at all times, with access to the supervised medications. The medication log was not accurately maintained with the timely recording of the dosages observed by staff as taken by the residents. Staff did not

       always observe residents take medications but recorded them as taken. Medications were not given to residents at the times indicated on the prescription labels. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits.

   15. Due to uncorrected deficiencies in medi- cations a pharmacist consultant's services

       were required within fourteen days of March 28, 1995. The time allowed for corrected was May 15, 1995, but no report was received until

       May 31, 1995. No further reports have been received. This deficiency, cited at the March 28, 1995 follow-up visit, remained uncorrected at the April 21, 1995 desk review and at the June 14, 1995 follow-up visit.

   16. No notations of changes in residents' conditions had been recorded in the resident files. This deficiency, cited in the December 19, 1994 survey, remained uncorrected at the March 28, 1995 follow-up visit.

   17. The facility had not documented procedures in effect at the ACLF for the receipt, resolution and documentation of complaints from any source. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28

       and June 14, 1995 follow-up visits and at the April 21, 1995 desk review.

   18. The facility had no current diet manual nor evidence that a current diet manual was accessible as needed. This deficiency, cited in the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visit and at the April 21, 1995 desk survey.

   19. Menus were not dated. Substitutions were not recorded. Menus with recorded substitutions were not kept on file for six months. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28

       and June 14, 1995 follow-up visits.

       
       

3. Notice of the deficiencies was provided in writing to the Respondent at the time of the survey and a time frame was given for their correction.

   
   

4. These deficiencies were alleged in an Administrative complaint filed in this matter on November 1, 1994. Respondent has admitted the allegations.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

6. The Agency has the burden to establish each of the allegations of misconduct by clear and convincing evidence. Ferris v. Turlington, 510 So.2d

   292 (Fla. 1987). The Respondent's admission, through counsel, of each of the alleged deficiencies and their failure of correction, satisfies the agency's burden.

   
   

7. Each of the alleged deficiency is a Class III deficiency and constitutes a violation of a sub-provision of Section 400.419, Florida Statutes. Each established violation subjects the license holder to a penalty which may consist of an administrative fine. As an attachment to the Administrative Complaint filed in this matter, the Agency has enclosed a Payment Form reflecting a suggested total penalty of $7,500.00. No evidence was presented by either side to indicated what would be an appropriate penalty for the offenses alleged and established. In its Complaint, the Agency seeks a penalty of $500 as to some of the deficiencies and of $350 to others. No explanation is given for the difference.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final

Order in this matter assessing an administrative fine against the Respondent, Gem House, in an amount determined to be appropriate under the statute and rules of the Agency.

DONE and ENTERED this 15th day of February, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 15th day of February, 1996.

COPIES FURNISHED:

Linda L. Parkinson, Esquire Agency for Health Care

Administration

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

Dean F. Mosley, Esquire McCrary & Mosley

47 E. Robinson Street, Suite 211 Orlando, Florida 32801

Sam Power Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Douglas M. Cook Director

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32399

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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

DOAH CASE NO. 95-5679

vs. AHCA NO. 7-95-644-ACLF

RENDITION NO. AHCA-96-0387-FOF-OLC

GEM HOUSE,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Agency for Health Care Administration (AHCA). The Recommended Order entered February 15,1996, by Hearing Officer Arnold H. Pollock is incorporated by reference.

FINDINGS OF FACT

The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order. Typographical errors are corrected stating the date of a survey on which the administrative complaint was based and the date of the administrative complaint as follows. In paragraph 2i the date of the first survey should be December 19,1994. In paragraph 4 the date of the administrative complaint should be November 1,1995.

CONCLUSIONS OF LAW

The agency hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except as follows. Counsel for the agency excepts to the conclusion in paragraph 6 that the standard of proof placed on the agency is the "clear and convincing" test. The applicable standard of proof is the "preponderance" test. Section 400.414(1), Florida Statutes. The exception is granted. Accepting the admission of counsel for Gem House, the hearing officer found the facility guilty of the violations charged in the administrative complaint, but made no recommendation as to penalty. The Respondent maintains in its exceptions that the violations charged in the complaint are improperly classified as Class III violations and that a fine of not more than $3,800 is appropriate. The exceptions are denied. The agency seeks fines totaling $7,250. Based on the number of and the repetition of violations, $7,250 is a reasonable penalty.

Based upon the foregoing, it is

ADJUDGED, that a total fine of $7,250 be imposed on the Respondent, Gem House. The fine shall be paid no later than 30 days after the rendition of this Final Order. The check or money order shall be made payable to the Treasurer, State of Florida, and be mailed or delivered to the Agency for Health Care Administration, Linda Parkinson, Esquire, Senior Attorney, Agency for Health Care Administration, 400 West Robinson Street, Suite 5-309, Orlando, Florida 32801-1976.

DONE and ORDERED this 28th day of March, 1996, in Tallahassee, Florida.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION

Douglas M. Cook, Director

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

Linda Parkinson, Esquire Senior Attorney, Agency for Health Care Administration

400 West Robinson Street Suite 5-309

Orlando, Florida 32801-1976

Dean F. Mosley, Esquire McCrary & Mosley

47 East Robinson Street Suite 211

Orlando, Florida 32801

Arnold H. Pollock Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addresses by U.S. Mail this 29th day of March,1996.

R. S. Power, Agency Clerk State of Florida, Agency for

Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

(904)922-3808

Docket for Case No: 95-005679

Orders for Case No: 95-005679