STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 96-1783

) REGINA AND CAMILLE SAVANY, d/b/a ) KING DAVID HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Susan B. Kirkland, held a formal hearing in this case on March 3, 1997, by video teleconference in Miami, Florida.

APPEARANCES

For Petitioner: Jean Claude Dugue, Senior Attorney

Agency for Health Care Administration 8355 Northwest 53rd Street

Miami, Florida 33166

For Respondent: Lawrence E. Besser, Esquire

1925 Brickell Avenue, Suite D207 Miami, Florida 33129

STATEMENT OF THE ISSUES

Whether Respondent violated provisions of Chapter 400, Part III, Florida Statutes, and provisions of Chapter 58A-5, Florida Administrative Code, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 20, 1996, Petitioner, Agency for Health Care Administration (Agency), issued an Administrative Complaint against Respondents, Regina and Camille Savany, d/b/a King David Home (Savany), alleging that Savany had violated provisions of Chapter 400, Part III, Florida Administrative Code, and provisions of Chapter 58A-5, Florida Administrative Code. On April 2, 1996, Savany filed a Request for Formal Administrative Hearing pursuant to Section 120.57(1), Florida Statutes. The case was forwarded to the Division of Administrative Hearings on April 12, 1996.

The final hearing was scheduled for June 13, 1996. On June 6, 1996, Savany filed a Motion to Continue Hearing. The motion was granted, and the case was rescheduled for final hearing on August 16, 1996. On August 12, 1996, Savany filed

another Motion to Continue Hearing. The motion was granted, and the case was placed in abeyance. On March 3, 1996, the case was rescheduled for final hearing.

At the final hearing Petitioner called Arturo Bustamonte, Mary Jo Lamont, and Stan Silva. Petitioner presented no exhibits. Respondents called Anna Carraress, Gloria Casveya, and Camille Savany as witnesses. Respondents presented no exhibits.

The transcript was filed on March 19, 1997. At the final hearing, the parties agreed to file proposed recommended orders within 30 days of the date the transcript was filed. On

May 5, 1997, the parties filed a request to extend the time for filing proposed recommended orders. The request was granted, and the time for filing proposed recommended orders was extended to June 1, 1997. On June 2, 1997, the parties again requested additional time in which to file proposed recommended orders.

The request was granted, and the time for filing was extended to June 30, 1997. Respondents filed their proposed findings of fact and conclusions of law on July 3, 1997. Petitioner filed a request for extension of time to file its proposed recommended order by July 10, 1997. The request was granted. Petitioner filed its proposed recommended order on July 9, 1997.

FINDINGS OF FACTS

1. Respondents, Regina and Camille Savany (Savany), owned an assisted living facility known as King David Home. The facility, licensed for six residents, was located at 9403 S.W. 27th Street, Miami, Florida.

2. On January 24, 1996, Arturo Bustamonte, an investigator for Petitioner, Agency for Health Care Administration (Agency), went to King David Home to check on some residents who had recently been moved to King David Home from a facility which had been closed by the Agency.

3. When Mr. Bustamonte arrived at King David Home, he observed four residents who were sitting in chairs with strips of bed sheets tied loosely in a bow around their front waists. The residents' arms were free.

4. At the request of Mr. Bustamonte, staff at King David Home untied the bed sheets from the residents; however,

   Mr. Bustamonte did not request the residents to remove the bed sheets themselves. According to the granddaughter of one of the residents, her grandmother was capable of removing the restraints without assistance. Staff at the facility had witnessed the residents removing the bed sheets without assistance prior to

   Mr. Bustamonte's visit.

   
   

5. Mr. Bustamonte also observed two residents who had stage two decubiti. Savany claimed that one of the residents had developed his bedsores during a hospital stay and that the resident had been returned to the facility at nine o'clock the evening before Mr. Bustamonte visited the facility. The other resident had been placed in the facility by a mental health clinic, and Savany had requested both the clinic and the resident's daughter to remove the resident from the facility. Savany had neither contacted the Agency about removing the residents nor advised the Agency that the residents had stage two bedsores.

6. Mr. Bustamonte called the Agency and asked that others be sent to the facility to make additional inspections because of the residents who were tied to the chairs and the two residents who had bedsores. The police were also called to the facility.

7. Stan Silva, who is a Health Facility Evaluator with the Agency, went to King David Home pursuant to Mr. Bustamonte’s

   request for assistance. When Mr. Silva arrived at the facility, he observed two residents who appeared to be oblivious to their surroundings, and he had serious doubts as to whether the two residents could self preserve. No drill was conducted to determine whether the residents could self preserve. The granddaughter of one of the residents stated at the final hearing that her grandmother could self preserve in an emergency with the assistance of staff.

8. Mr. Silva also observed two patients with stage two bedsores.

9. On January 24, 1996, there was no one on staff at King David Home who had had CPR and first aid training. No one on duty was a Florida licensed nurse.

10. On reviewing the few records at the facility, Mr. Silva and Mr. Bustamonte observed the contracts with the residents were not complete; some of the residents’ records did not contain health assessments, and there was no documentation to show who was in charge of the facility when the owners were not present. Not all of the records were maintained at the facility. The owner of the facility brought some records with him when he was called to the facility.

11. While Mr. Bustamonte and Mr. Silva were at the facility, they noticed smoke coming from an area in the back of the facility where some construction was being done. Neither saw any flames, but both did see some ashes on the floor.

    Mr. Bustamonte requested staff at the facility to call the fire department. The facility did not have a written emergency management plan.

12. While the fire department was there, the electricity to the facility was temporarily disconnected. During the inspection of the facility on January 24, the residents were not served a noon meal. Although the electricity was disconnected for approximately one to two hours, there was no reason that a cold lunch could not have been prepared for the residents or that a hot meal could not have been furnished from outside the facility. Staff did provide the residents with snacks.

13. On January 24, 1996, there were at least nine residents in Kind David Home. Camille Savany testified that another facility which he owned had to be repaired and that he moved residents from that facility to King David Home while the repairs were being done. Based on the records available, the medications found at the facility, and personal property found at the facility, more than six residents were living at King David Home on January 24. Camille Savany admitted that the facility housed more than six residents.

14. Mr. Bustamonte and a police officer visited the residence of Mr. and Mrs. Savany at 1099 Southwest 135th Court, Miami, Florida. When they arrived at the residence, they informed the woman who answered the door that they wanted to inspect the facility. The woman let them into the house and

    immediately took off running down the street, leaving elderly persons inside the residence unattended.

15. There were ten elderly persons residing at the Southwest 135th Court address. No evidence was presented to establish what services were being performed for these persons.

    CONCLUSIONS OF LAW

    
    

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

17. The Agency seeks to revoke Savany's license to operate an assisted living facility. Section 400.414, Florida Statutes, provides:

    1. The agency may deny, revoke, or suspend a license issued under this part or impose an administrative fine in the manner provided in chapter 120. At the chapter 120 hearing, the agency shall prove by a preponderance of the evidence that its actions are warranted.

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

       1. An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.

          * * * *

          (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.

18. Section 400.401(3), Florida Statutes, provides:

    
    

    (3) The principle that a license issued under this part is a public trust and a privilege and is not an entitlement should guide the finder of fact or trier of law at

    any administrative proceeding or in a court action initiated by the Agency for Health Care Administration to enforce this part.

    
    

19. The Department has alleged that the Respondents are guilty of violating Rule 58A-5.033(2)(c)1, Florida Administrative Code, which provides:

    1. Unclassified deficiencies. The agency shall immediately impose a fine for deficiencies which do not meet the criteria for either a Class I, II, or III, or IV violation, but which are not trivial or immediately corrected. The agency shall impose a fine not to exceed

       $500 for each violation, and not to exceed $5,000 in the aggregate per survey. Unclassified deficiencies include the following violations:

       1. Exceeding license capacity except as provided in Rule 58A-5.024(1)(j), F.A.C.

20. The Agency has established by a preponderance of the evidence that Savany exceeded its license capacity, and Camille Savany admitted at the final hearing that the facility was over capacity. The facility was licensed for six residents, and there were at least ten residents at the facility.

21. Rule 58A-5.0181, Florida Administrative Code, sets forth the criteria for admission to an assisted living facility and provides:

    1. In order to be admitted to any facility, an individual shall meet the following criteria:

       * * * *

       1. With respect to medication, the individual:

          1. Is capable of taking his own medications with or without supervision by trained staff, or

          2. Requires administration of medication, and the facility has a nurse to provide this service when the service is needed, or the resident or the resident's legal representative, designee, surrogate, guardian, or attorney-in-fact contract with a licensed third party to provide the service.

       2. The individual has no bedsores or skin breaks classified by a health care provider as stage 2, 3, or 4 pressure ulcers.

       * * * *

       1. Examination Requirements for Admission.

          1. All of the following information is required for admission to an assisted living facility:

             1. The report of the health assessment dated and containing the signature, address, phone number, and Florida license number of the examining health care provider. The initial health assessment for a resident being admitted to a facility may be performed by a currently licensed health care provider from another state.

             2. A description of physical and mental status, including identification of any health-related problems and any functional limitation, and the following information:

                1. Whether the individual has any apparent signs or symptoms of any communicable disease which is likely to be transmitted to another resident or staff.

                2. Whether the individual appears to be capable of administering his own medications with assistance or supervision from the staff if necessary.

                3. Whether the individual is independent in activities of daily living, requires supervision with activities of daily living, or requires assistance with activities of daily living.

             * * * *

       2. Prior to or at the time of admission:

          * * * *

          1. The facility and the resident shall enter into a contract which meets the requirements of Rule 58A-5.024(2)(a), F.A.C.

          * * * *

       3. Within 30 days following admission, each resident's capacity for self-preservation shall be assessed in accordance with the

       requirement of Rule Chapter 4A-40, F.A.C. Assistance needed to evacuate shall also be documented.

       
       

22. The Agency has established by a preponderance of the evidence that some of the residents' records did not contain the health assessment which is required to be done within thirty days of admittance to the facility. Savany violated Rule 58A- 5.0181(4)(a), Florida Administrative Code.

23. The Agency has established by a preponderance of the evidence that two of the residents had stage two bedsores, and Camille Savany admitted that two of the residents had stage two bedsores. Savany violated Rule 58A-5.0181(1)(e), Florida Administrative Code.

24. The Agency has established by a preponderance of the evidence that some of the residents at the facility did not have completed contracts. Savany violated Rule 58A-5.0181(5)(b), Florida Administrative Code.

25. In the Administrative Complaint, the Agency alleges that two of the residents were totally dependent on staff at Savany for Activities of Daily Living (ADL). The Agency failed to establish such allegations.

26. In the Administrative Complaint, the Agency alleges that four residents were not capable of administering their own medications and that staff at Savany were administering the medications. The Administrative Complaint contained allegations that staff at Savany were not administering medication in

    accordance with a physician's orders. No evidence was presented to establish such allegations.

27. Rule 58A-5.019(5), Florida Administrative Code, deals with the staffing standards for an assisted living facility and provides:

    (5) The Administrator of a facility shall:

    * * * *

    (b) Assure that sufficient staff who know how to implement the facility's evacuation plan and emergency management's plan are on the premises at all times to implement emergency procedures, including evacuation of residents in accordance with the facility's written emergency management plan, in the event of fire, disaster, or other threats pertaining to the health, safety, and security of the residents.

    * * * *

    (f) Assure that there is at least one staff member within the facility at all times who has a certification in first aid as required in Rule 58A-5.0191(2), F.A.C.

    
    

28. Rule 58A-5.0191(2), Florida Administrative Code, provides:

    (2) First Aid

    1. The administrator shall ensure that at least one staff member who has a certification in an approved first aid course is within the facility at all times. This course shall include training in the control of bleeding and seizures; the care of abrasions, scratches, cuts, and insect bites; cardiopulmonary resuscitation (CPR). If the facility has documentation of an American Red Cross first aid and CPR course, no further documentation is required. Other courses taken in fulfillment of this requirement shall be documented in accordance with subsection (7) of this rule.

    2. A Florida licensed registered nurse

    (RN), licensed practical nurse (LPN), advanced registered nurse practitioner

    (ARNP), certified nursing assistant (CNA), or Emergency Medical Technician (EMT) is not required to be additionally certified in first aid.

    
    

29. The Agency has established by a preponderance of the evidence that at the time of the inspection the facility did not have a staff member within the facility who had a certification in first aid. Savany has violated Rule 58A-5.019(5)(f), Florida Administrative Code.

30. The Agency has established by a preponderance of the evidence that Savany did not have a written emergency managment plan. Savany violated Rule 58A-5.019(5)(b), Florida Administrative Code.

31. Rule 58A-5.0182(9), Florida Administrative Code, deals with resident care standards and provides:

    (9) Physical Restraints. Physical Restraints as defined in Rule 58A-5.0131, F.A.C., shall not be used in facilities. However, half-bedside rails, when used only as half-bedside rails, shall be used only upon the written order of the resident's health care provider, who shall review the order at least every 6 months. Any device which the resident chooses to use and can remove without the assistance shall not be considered a restraint.

32. In the Administrative Complaint, it is alleged that resident beds in room number one of the facility were equipped with full bed rails. There was no evidence presented to support such an allegation.

33. In the Administrative Complaint, it is alleged that four residents were tied to their chairs. The evidence did

    establish that some of the residents were tied to their chairs by strips of bed sheets which were tied in bows in the front of the residents' waists. The evidence did not establish by a preponderance of the evidence that these residents were unable to untie the bed sheets without assistance. Thus, the Agency has not established that Savany violated Rule 58A-5.0182(9), Florida Administrative Code.

34. The Department has alleged that Respondents have violated Rule 58A-5.024(2)(a)1, (b), Florida Administrative Code, which provides:

    (2) Resident Records. Resident Records shall be available only to facility staff, the resident, representatives of the agency and the department, LTCOC, HRAC, and those parties authorized by the resident such as the resident's legal representative, designee, surrogate, guardian, or attorney in fact or the resident's estate. Resident files shall be maintained within the facility.

    1. Resident Contracts shall contain:

       1. Provisions specifically setting forth services and accommodations to be provided by the facility, including extended congregate care services, limited mental health services, or limited nursing services.

       * * * *

    2. The facility shall follow the terms of the contract.

35. The Agency has established by a preponderance of the evidence that some of the residents' files at Savany did not contain the resident contract which is required by Rule 58A- 5.024(2)(a)1, Florida Administrative Code. The Agency has also established by a preponderance of the evidence that Savany did

    not maintain all the residents' files at Savany in violation of Rule 58A-5.024(2), Florida Administrative Code.

36. The Agency alleged that Savany was running an unlicensed facility at 1099 Southwest 135th Court, Miami, Florida, in violation of Section 400.407(3), Florida Statutes. The Agency has failed to establish by a preponderance of the evidence that Savany was operating an unlicensed facility.

37. The Agency has established by a preponderance of the evidence the provision of Rule 58A-5.020, Florida Administrative Code, which requires that the interval between breakfast and lunch shall not be more than six hours.

38. The violations are serious in nature and affect the health, safety, and welfare of the residents. The Agency has established that its proposed action to revoke Savany's license is warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered revoking license number 0008333 issued to Regina and Camille Savany, d/b/a King David Home.

DONE AND ENTERED this 29th day of July, 1997, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1997.

COPIES FURNISHED:

Jean Claude Dugue, Esquire

Agency For Health Care Administration 8355 Northwest 53rd Street

Miami, Florida 33166

Lawrence E. Besser, Esquire Samek and Besser

1925 Brickell Avenue, Suite D-207 Miami, Florida 33129

Sam Power, Agency Clerk

Agency For Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel Agency For Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001783

Orders for Case No: 96-001783