Pursuant to notice, a formal hearing was held in this case on February 20, 1997, in Lake City, Florida, before P. Michael Ruff, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
For Respondent: Ronald S. Frankel, Esquire
St. Petersburg, Florida 33731
The issue to be resolved in this proceeding concerns whether the petitioner should be dismissed from the Veterans' Domiciliary Home of Florida pursuant to legal authorities cited herein and for the factual reasons cited herein.
This cause arose upon notification to the Respondent Robert Thomas, on October 2, 1996, that he was to be dismissed from his residency as a member of the Veterans' Domiciliary Home (Home) in Lake City, Florida for violations of his "Resident Contract," "Addiction Recovery Support Contract" and his "Self-Administered Medication Contract" which are provided for and constituted by the statutes and rules cited herein. The Petitioner timely sought a formal proceeding to contest his dismissal and the instant proceeding ensued.
The cause came on for hearing as noticed. Inasmuch as the Respondent named above is attempting to alter the status quo and dismiss the Petitioner from his residency in the subject facility, it was required to proceed first with the burden of proof. The Respondent produced the testimony of Ms. Polly Tyler, the Administrator of the Domiciliary Home and a registered nurse; Ms. Donna Harris, a senior licensed practical nurse (LPN); Ms.
Sharon Johnson, LPN, Ms. Michelle Dicks, Senior Case Manager and Lawrence Davis, the Petitioner's counselor. The Petitioner presented his own testimony and that of Jim Hanusek, Robert Lipscomb, William Friedly, Jerry Lust, Robert H. Duncan, Jr., Hope Turner, and Mary Ellen MacDuffie. Petitioner adduced seven exhibits into evidence and the Respondent presented ten exhibits which were admitted into evidence. Upon the conclusion of the proceeding, the parties were accorded the right to submit
proposed recommended orders which have been considered in the rendition of this recommended order.
The Florida Department of Veterans' Affairs is an agency of the State of Florida charged by the Legislature with administering and regulating various benefits and assistance programs for Florida resident veterans. The Veterans' Domiciliary Home of Florida (Home) is an assisted living facility as defined in Chapter 400, Florida Statutes. It provides shelter, sustenance and incidental medical care or temporary care for eligible veterans who suffer from a disability, disease or defect that incapacitates them from earning a living but who do not need hospitalization or skilled nursing services. It attempts to assist them in attaining maximum physical mental and social well-being through rehabilitative programs so as to restore into their highest level of functioning.
Under the provisions of Chapter 296, Florida Statutes and Section 55-11.005, Florida Administrative Code, a veteran cannot be mentally ill, habitually inebriated or addicted to the use of controlled substances in order to be eligible to be admitted to the Home and to remain a resident therein.
The Home is also licensed by the Agency for Health Care Administration as an Assisted Living Facility. It is also mandated to follow the statutes and rules administered by the Department of Elder Affairs contained in Chapter 58A, Florida
Administrative Code. Under certain circumstances, as stated herein, the Executive Director of the Department of Veterans' Affairs refers dismissal decisions from the home administrator to the Division of Administrative Hearings for formal adjudication.
Pursuant to Section 400.424, Florida Statutes, an assisted living facility is required to offer a contract to all residents which sets forth financial matters, rights, and obligations of the residents of the assisted living facility. Rule 58A-5.024(2)(a), Florida Administrative Code, provides that a resident contract shall be given to all residents, and that the rights, duties and obligations of residents other than those specified in Section 400.428, as to residents rights, may be placed in that contract. Rule 58A-5.0181, Florida Administrative Code, states that prior to or at the time of admission, a new resident shall enter into a contract which meets the requirements of Rule 58A-5.024(2)(a), Florida Administrative Code.
On June 13, 1996, the Petitioner was given a Certificate of Eligibility for pre-screen examination prior to his admittance to the Home. Because he was identified as a substance abuser, based upon his "driving under the influence" conviction in Broward County, the Certificate of Eligibility made clear to him that he would be required to sign a six-month Addiction Recovery Support Contract and a "Mental Health Contract Supplement" as a stipulation for his admission. That letter also notified him that he would be required to have his sobriety verified by a
mental health or substance abuse professional prior to pre- screening. See Respondent's Exhibit 9 in evidence.
Thereafter on July 3, 1996, as provided by the relevant Florida Statutes and rules cited herein, the Home and the Petitioner entered into a contract, as a condition of the Petitioner's admission into the Home, which has a supervision of Self-Administered Medication requirement and an Addiction Recovery Support Supplement Contract as a requirement.
The Supervision of Self-Administered Medication Supplement specifically provides that individuals under such contract are not allowed to secure their own narcotic medication from a nursing station for self-administration. They must have the drugs dispensed to them for self-administration by a nursing staff employee at the Home.
The six month Addictions Recovery Support Contract which was signed by the Petitioner on June 26, 1996, provides that upon reasonable suspicion of being under the influence of alcohol or illegal drugs the Petitioner must consent to testing, either through blood, saliva, or supervised urine tests. That contract further provides that if the Petitioner refuses to allow such tests or interferes in any way with the staffs performance of these tests, he may be dismissed from the Home.
Thereafter, in the late evening hours of September 17th and 18th, 1996, Ms. Donna Harris and Sharon Johnson, LPN's who were then on duty at the Home, observed the Petitioner, without
authority, reaching into a drug bin which contained narcotic substances, ostensibly to retrieve his own medications. This is a violation of the Self-Administered Medication Supplement Contract and other procedures of the Home. Later that same evening, Ms. Donna Harris detected the odor of alcohol on the Petitioner's person and thus, having a reasonable suspicion that he had been drinking, requested that he test for alcohol. The Petitioner refused testing in violation of his Addiction Recovery Support Contract.
On October 8, 1996, Ms. Michelle Dicks, an LPN, also had reasonable suspicion that the Petitioner had been drinking due to the odor of alcohol and his behavior, she observed, and said she asked him to test based on this suspicion. The Petitioner refused to test again, in violation of his Addiction Recovery Support Contract.
On September 18, 1996, Lawrence Davis, a counselor at the home, observed the Petitioner standing in line at a liquor store, apparently to make a purchase. Since Mr. Davis had information concerning the Petitioner's alleged alcohol use from the previous evening, he requested that the Petitioner test for alcohol use. The Petitioner agreed to test, the test was performed and was positive for alcohol consumption.
Alcohol consumption is a violation of the Addiction Recovery Support Contract as well as the terms of the Petitioner's probation adjudged against him as a result of the
criminal conviction for driving under the influence of alcohol, with property damage, in Broward County, Florida. Other conditions of his probation were attendance at AA meetings, restitution regarding the property damage and attendance at "DUI school."
Lawrence Davis, the Petitioner's counselor, upon determining that the Petitioner had apparently relapsed into alcohol abuse, attempted to make arrangements for him to attend a VA rehabilitation program at the U.S. Department of Veterans' Affairs Medical Center in Lake City, a short distance up the street from the Home. Although various appointments were made by Mr. Davis for the Petitioner, the Petitioner refused to enroll in the rehabilitation program at the Lake City VA Medical Center.
The field test for alcohol consumption has a high probability of correctness. Certain "false positives" are possible, based upon leaving the sample out untested for more than two minutes. The Petitioner's sample, however, according to credible testimony, was tested within a two minute period and tested positive. The test within the two minutes is the acceptable norm for a correct testing procedure promulgated by the manufacturer of the test kit, Roche Pharmaceuticals.
The Petitioner was accordingly given a notice of dismissal from the Home on October 2, 1996, for violations of the Addiction Recovery Support Contract and for attempting to retrieve his narcotic medications out of the bin or basket
without authority, in violation of his Self-Administered Medications Contract. A dismissal decision was made by Executive Director of the Department by letter of October 30, 1996 which ultimately resulted in this proceeding.
Respondent's Exhibit 10 in evidence establishes the strict alcohol and drug testing policy at the Home. It is properly constituted in the statutory and regulatory authority referenced herein and was appropriately followed during the testing procedures of the Petitioner for alcohol consumption. The use of alcohol by individuals on Addiction Recovery Support
Contracts or refusal by individuals to be tested for alcohol when engaged in such contracts and residence in the Home, is inimical to the proper operation of the Home. It frustrates its efforts to rehabilitate its members and to return them as better functioning members of society, as mandated by the requirements of Chapter 296, Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.569(1), and 120.57(1)(a)Florida Statutes.
Section 296.07, Florida Statutes provides as follows:
"Certain persons ineligible.-No person shall be received or retained in the home who is mentally ill, habitually inebriated, or addicted to the use of drugs, it is the legislative intent that a member of the home who is discharged therefrom, or voluntarily leaves the home, because such member exhibits mental illness, inebriation, or drug
addiction shall be referred to appropriate federal, state, or county agencies by the home for treatment.
Rule 58A-5.0182(5)(b) provides that, prior to or at the time of admission, the facility and a resident enter into a contract that meets the requirements of Rule 58A-5.0184(2)(a), Florida Administrative Code. That provision provides, in pertinent part, that resident contracts shall contain the rights, duties and obligations of residents other than those specified in Section 400.428, Florida Statutes. Rule 59-11.009-"Order and Discipline of Members" provides, at paragraph (1)(a)2. "the use or possession of non-medicinal alcohol, illegal drugs or any controlled substance in the home or on the grounds of the home is prohibited. Prescription drugs will be controlled by the home and administered or supervised by the home staff." The rule then provides at paragraph (2) as follows: "The administrator, subject to the approval of the director, is empowered by Section 296.04, Florida Statutes, to dismiss a member of the home for any infraction of these rules."
It has been shown that the Veterans Domiciliary Home of Florida is licensed as an Assisted Living Facility, and is governed by the rules requiring contractual requirements of the Department of Elder Affairs and Florida Statute 400.424, Florida Statutes.
Section 400.424, Florida Statutes, provides that an Assisted Living Facility such as the respondent is required to
offer a contract to all residents which sets forth financial matters, rights and obligations of the residents of the Assisted Living Facility.
Rule 58A-5.0181, Florida Administrative Code, provides that, prior to or at the time of admission, a resident shall enter into a contract which meets the requirements of Rule 58A- 5.024(2)(a), Florida Administrative Code, which in turn requires a contract to specify the rights, duties and obligations of residents, other than those elements concerning residents' rights which Section 400.428, Florida Statutes, requires to be placed in the contract.
It has been established that, as a condition for admission to this facility, an individual such as the Petitioner with a substance abuse/alcohol problem must not only sign the basic resident contract, but also an Addiction Recovery Support Contract and a Self-Administration of Medication Supplement Contract. The Petitioner was informed of this upon his seeking entitlement to residency at the facility, agreed to it, and signed the relevant contracts referenced above. There is no question that the conduct referenced in the above findings of fact was violative of the above-cited legal authority and the contracts entered into pursuant to that authority. The Home may not admit potential residents nor retain residents who use alcohol or controlled substances or who are habitually inebriated and the statute, rules and policies under which it operates
permit it to dismiss the member who refuses to comply with the contract, including the provisions concerning abstention from use of alcohol and which require that such a resident submit to testing therefor. Residents who engage in such miscreant conduct and who refuse to obey the above-cited legal authority and provisions of their relevant contracts pose a substantial risk to successful fulfillment of the mission of the Home to help the resident obtain physical, mental and social well-being through special rehabilitative programs to restore them to their highest level of functioning. The Petitioner willingly violated the agreements referenced above by using alcohol, being inebriated on a number of occasions, refusing on a number of occasions to be tested for alcohol and, when tested, testing positive for alcohol.
In summary, it has been shown that the Veterans' Domiciliary Home correctly carried out its statutory and regulatory mandates with regard to its care, and ultimately the dismissal procedure followed. The Petitioner violated his voluntarily signed contracts on several occasions. His remaining at the Veterans' Domiciliary Home poses a harm to its rehabilitative programs or other patients currently residing there and, in reality, poses a harm to the Petitioner under the present circumstances because he injures himself by avoiding the rehabilitative programs that have been offered to him through the Department of Veterans Affairs.
That a final order be entered by the Department of Veterans' Affairs dismissing Robert Thomas a resident of the Veterans' Domiciliary Home of Florida.
Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1997.
Major General Earl G. Peck Executive Director
St. Petersburg, Florida 33731
Ronald Frankel, General Counsel Department of Veteran's Affairs Post Office Box 31003
St. Petersburg, Florida 33731
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.
