STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1095

)

GEM HOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 16, 1996, in Orlando, Florida. The parties, witnesses, and court reporter attended the formal hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Linda L. Parkinson, Esquire

Division of Health Quality Assurance Agency for Health Care Administration

400 West Robinson Street, Suite 309 Orlando, Florida 32801

For Respondent: Pamela Mosley, Esquire

McCrary and Mosley, P.A.

47 East Robinson Street, Suite 211 Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues for determination in this case are whether Respondent's license should be renewed and whether Petitioner properly imposed a moratorium on Respondent prior to the expiration of Respondent's license.

PRELIMINARY STATEMENT

By letter dated January 11, 1996, Petitioner denied the renewal of Respondent's license. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of three witnesses and submitted three exhibits for admission in evidence. Respondent presented the testimony of one witness and submitted no exhibits for admission in evidence. The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the formal hearing filed on July 31, 1996.

Petitioner timely filed its proposed recommended order ("PRO") on August 9, 1996. Respondent did not file a PRO. Proposed findings of fact in Petitioner's PRO are accepted in this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for inspecting assisted living facilities ("ALFs") and enforcing licensure requirements for ALFs in accordance with Chapter 400, Florida Statutes, 1/ and Florida Administrative Code Rule 58A-5. 2/ Respondent is licensed to operate an ALF for six residents. Respondent operates its ALF at 2809 Round About Lane, Orlando, Florida 32818 (the "facility").

   
   

2. Petitioner inspected Respondent's operation of the facility five times. Petitioner surveyed the facility on December 19, 1994, and on March 28 and June 14, 1995. Petitioner conducted a desk review on April 21, 1995. Petitioner conducted a follow-up visit and a complaint investigation at the facility on November 27, 1995.

   
   

3. The surveys conducted on December 19, 1994, and on March 28 and June 14, 1995, cited 19 uncorrected deficiencies. The follow-up visit conducted on November 27, 1995, cites four new deficiencies not cited in the previous surveys. The complaint investigation conducted on November 27, 1995, cites two new deficiencies.

   
   

4. Petitioner has complied with the alternative requirements of Section 400.419(1)(a). Petitioner has provided Respondent with timely and adequate notice of all deficiencies determined during each inspection. Petitioner provided Respondent with an adequate explanation of the nature of the deficiencies and the corrective action needed.

   
   

5. The administrator was present when all of the surveys were conducted. Petitioner discussed the deficiencies with the administrator and explained the corrective action required for each deficiency. A pharmacy consultant was required to assist the administrator with deficiencies in Respondent's medication program

   
   

6. Petitioner advised the administrator of the need for Respondent to submit a plan of correction on the deficiency statement with a proposed completion date for correcting each deficiency. Respondent failed to correct the deficiencies.

   
   

7. Petitioner filed an administrative complaint against Respondent on November 1, 1995. The administrative complaint charged Respondent with the uncorrected deficiencies cited in all of the surveys except the follow-up visit and the complaint investigation conducted on November 27, 1995. Respondent timely requested a formal hearing.

   
   

8. On February 7, 1996, a formal hearing was conducted in Division of Administrative Hearings ("DOAH") Case Number 95-5679. A final order was entered on March 28, 1996. The final order required Respondent to pay a fine of $7,250 pursuant to Sections 400.419(1)(b) and (c), 400.419(2), and 400.414(1).

   
   

9. Respondent did not appeal the final order. Respondent failed to pay the administrative fine ordered in DOAH Case Number 95-5679.

10. Petitioner correctly denied the renewal of Respondent's license, in part, because Respondent failed to pay an administrative fine within the meaning of Section 400.417(1). Petitioner correctly imposed a moratorium pursuant to Section 400.415 on the basis of repeated and continuing deficiencies permitted by Respondent. For the same reasons, Petitioner correctly denied the renewal of Respondent's license pursuant to Sections 400.401(3) and 400.414(2)(b), (d), and (g).

    
    

11. The deficiencies addressed in Case Number 95-5679 were adjudicated in that case and are not reconsidered in this Recommended Order. Reconsideration of those issues is precluded by the doctrine of collateral estoppel.

    
    

12. There are only two matters at issue in this proceeding. They are Respondent's failure to pay the fine ordered in Case Number 95-5679 and the deficiencies determined as a result of the follow-up visit and complaint investigation conducted on November 27, 1995.

    
    

13. The deficiencies determined as a result of the follow- up visit conducted on November 27, 1995, are Class III deficiencies within the meaning of Section 400.419(3)(c). The deficiencies cited as a result of the complaint investigation conducted on November 27, 1995, are Class II deficiencies within the meaning of Section 400.419(3)(b).

    
    

14. Respondent does not maintain complete personnel files on each member of the staff in violation of Rules 58A-5.024(1)(f) and 58A-5.0191(2)(a). Personnel files maintained by Respondent fail to document staff competency and training in first aid.

    
    

15. Respondent does not execute contracts for each resident on or before their admission in violation of Section 400.424 and Rules 58A-5.024(2)(a) and 58A-5.0181(5)(b). Respondent admitted four new residents after June 14, 1995.

    
    

16. Respondent does not complete health assessments for those residents admitted after June 14, 1995, in violation of Rule 58A-5.0181(4)(a). The method of management for resident medications is not identified on all health assessments. The administrator incorrectly supervises the residents' self- administration of medication.

    
    

17. Respondent does not designate a properly trained person to have access to medications in violation of Rules 58A- 5.0182(6)(b) and 58A-024(1)(c). Respondent does not identify a method of management for resident medications in violation of Rule 58A-5.0182(6).

    
    

18. Respondent does not accurately maintain the medication log, including timely and accurate entries of dosages taken by residents. Respondent's staff does not consistently and accurately observe self-administration of medication by residents. Discrepancies exist between the medication and dosages prescribed for residents, those actually taken by residents, and entries by the staff in the medication log.

    
    

19. Respondent does not provide required reports by a consulting pharmacist in violation of Rule 58A-5.033(5)(a). The report required on or about April 11, 1995, was not filed until May 31, 1995. None of the subsequent reports required to update the initial report have been filed.

20. Respondent does not note changes in each resident's condition in violation of Rule 58A-5.0182(2)(e). Respondent does not document procedures for the receipt, resolution, and documentation of resident complaints in violation of Rule 58A- 5.0182(7)(d).

    
    

21. Menus are undated in violation of Rules 58A- 5.020(1)(h)1 and 58A- 5.024(3)(b)2. Substitutions are not recorded. Menus with recorded substitutions are not kept on file for six months.

    
    

22. The noon meal on November 27, 1995, consisted of a cheese sandwich, chicken noodle soup, a banana, and apple juice. The meal was not on any menu.

    
    

23. There are no menus or meal plans to meet the nutritional needs of residents requiring therapeutic diets in violation of Rule 58A-5.020(1)(c). The health plan for a resident admitted on July 13, 1995, prescribed a low fat and low cholesterol diet. Respondent maintains no meal plan or menus for this diet and has never served the therapeutic diet prescribed for this resident.

    
    

24. Menus are not reviewed annually by a dietitian or dietetic technician in violation of Rule 58A-5.020(1)(e). No menus in the facility have been reviewed for 17 months.

    
    

25. The door nearest the garage is a primary fire exit for residents in the south end of the facility. It can not be opened from the inside except by a person with the key to a lock installed by Respondent in violation of Rule 58A- 5.023(1).

    
    

26. Respondent does not provide a safe, secure environment to at least one developmentally disabled resident in violation of Sections 400.428(1)(a) and Rule 58A-5.0182. The resident returned home about 4:00 a.m. one day.

    Respondent forced the resident to remain outside for over two hours until sunrise.

    
    

27. The resident slept in a chair on the porch of the facility. Respondent receives state funds to provide the resident with a safe, secure environment.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. The parties were duly noticed for the formal hearing.

    
    

29. Petitioner has the burden of proof in this proceeding. Petitioner must show by a preponderance of evidence that Respondent committed the acts alleged by Petitioner and the reasonableness of any proposed penalty. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    349 (Fla. 1st DCA 1977).

    
    

30. Petitioner satisfied its burden of proof. Respondent failed to pay the administrative fine ordered in DOAH Case Number 95-5679, and failed to correct the deficiencies cited as a result of the follow-up survey and the complaint investigation conducted on November 27, 1995.

31. Petitioner complied with the requirements of Section 400.419(1)(a). Petitioner made a reasonable attempt to discuss the deficiencies and required corrective action with Respondent.

    
    

32. Section 400.417(1) provides that a license shall not be renewed if the licensee has any outstanding fines. Respondent has an outstanding fine.

    
    

33. Pursuant to Section 400.415, Petitioner properly imposed a moratorium on Respondent based on the continuing, uncorrected deficiencies committed by Respondent, including deficiencies in Respondent's medication program, therapeutic diets, and a locked fire exit. For the same reasons, Respondent has violated the public trust, is incompetent to provide continuing adequate care to residents, has committed five or more repeated and recurring Class III violations which affect the health, safety, or welfare of residents, and has failed to meet minimum license standards or requirements in violation of Sections 400.401(3), 400.414(2)(b) and (d), and 400.414(2)(g).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of the allegations at issue in this proceeding, sustaining the moratorium, and denying the renewal of Respondent's license as an ALF.

RECOMMENDED this 21st day of August, 1996, in Tallahassee, Florida.

DANIEL MANRY, 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 August, 1996.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.

COPIES FURNISHED:

Douglas Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Linda L. Parkinson, Esquire

Division of Health Quality Assurance Agency for Health Care Administration

400 West Robinson Street, Suite 309 Orlando, Florida 32801

Pamela Mosley, Esquire McCrary and Mosley, P.A.

47 East Robinson Street, Suite 211 Orlando, Florida 32801

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

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: 96-001095

Orders for Case No: 96-001095