STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 97-0161

) BETHLEHEM RETIREMENT HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 21, 1997, by video teleconference at Fort Lauderdale, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer A. Steward, Esquire

Agency for Health Care Administration 1400 West Commercial Boulevard

Suite 110

Fort Lauderdale, Florida 33309

For Respondent: Donna Szczebak O'Neil, Esquire

301 East Commercial Boulevard Fort Lauderdale, Florida 33334

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent's license to operate an Assisted Living Facility should be revoked.

PRELIMINARY STATEMENT

By letter dated November 22, 1996, the Agency for Health Care Administration (AHCA) notified Bethlehem Retirement Home

(Bethlehem) that its Assisted Living Facility (ALF) license was being revoked. AHCA's letter notified Bethlehem of the specific basis for the revocation. By Request for Formal Proceeding dated December 20, 1996, Bethlehem disputed the basis for the revocation and requested a formal hearing. On January 13, 1997, the matter was referred to the Division of Administrative Hearings.

Prior to hearing, by order dated July 21, 1997, AHCA was granted leave to amend its revocation letter via filing of an administrative complaint against Bethlehem. On July 24, 1997, Petitioner filed its Administrative Complaint against Bethlehem. AHCA charged Bethlehem with violating a Stipulation for Settlement entered into by the parties and adopted by and incorporated in a Final Order dated August 21, 1996, in DOAH Case No. 96-001967, AHCA Case No. 96-0956-S-OLC, by having more than five (5) repeat deficiencies cited in a survey conducted on October 23, 1996; and with violating Subsections 400.414(2)(c) and 400.424(3)(a), Florida Statutes, and Rules 58A-5.024(2)(a)(7) and (b), Florida Administrative Code, by failing to refund a resident's monies after discharge of the resident in July 1996, and by misappropriating or converting the property of the resident. Furthermore, AHCA alleged in the Administrative Complaint that it was authorized to revoke Bethlehem's license pursuant to the Settlement Stipulation and Subsection 400.414(2)(c), (e), and (h), Florida Statutes.

Bethlehem filed a response to the Administrative Complaint denying the allegations of fact. Furthermore, Bethlehem asserted in its response that none of the alleged deficiencies, either aggregate or individually, affected the health, safety, or welfare of the residents at the facility; and that, regarding the Stipulation for Settlement, it met the minimum standards during the survey and substantially complied with the Stipulation.

At hearing, AHCA presented the testimony of three witnesses and presented three exhibits into evidence. Bethlehem presented the testimony of three witnesses and entered thirteen exhibits into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript.

The parties filed post-hearing submissions which have been duly considered.

FINDINGS OF FACT

1. Bethlehem Retirement Home (Bethlehem) is licensed as an Assisted Living Facility (ALF) in compliance with Chapter 400, Part III, Florida Statutes, and Chapter 58A-5, Florida Administrative Code. Bethlehem has been licensed, as an ALF, for

   16 years at the same location.

   
   

2. The Agency for Health Care Administration (AHCA), an agency of the State of Florida, has jurisdiction over Bethlehem by virtue of the provisions of Chapter 400, Part III, Florida

   Statutes, and Chapter 58A-5, Florida Administrative Code.

   
   

3. A relicensure survey was conducted on Bethlehem by AHCA on September 11, 1995.1 AHCA and Bethlehem had a dispute as to whether Bethlehem's ALF license should be renewed, which resulted in the dispute being referred to the Division of Administrative Hearings (DOAH) for a formal hearing. The matter in dispute was assigned DOAH Case No. 96-001967. On July 25, 1996, AHCA and Bethlehem entered into a Settlement Stipulation (Stipulation), settling all issues in dispute.

4. The Stipulation provided, among other things, the following:

5. The Director of the Agency for Health Care Administration, or his designee, shall enter a Final Order incorporating this Stipulation requiring ALF [Bethlehem]2 to pay FIVE HUNDRED DOLLARS ($500.00), in settlement of filed and current pending State of Florida Agency for Health Care Administration fines and/or penalties for licensure deficiencies and violations. . . .

   
   

6. ALF must accomplish the following immediately:

   
   

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   b) Each outstanding violation and deficiency of Chapter 400, Part III, F.S., and Section 58-A-5 [sic], F.A.C., shall be corrected.

   
   

   d)[sic] ALF shall bring the facility into good repair. This includes both the physical plant and overall cleanliness of the facility.

   
   

7. ALF shall maintain full compliance with all State and Federal laws, regulations and rules, including but not limited to, Chapter 400, Part III, F.S., and Section 58A-5,

F.A.C.

* * *

1. AHCA shall issue an assisted living conditional license for six months . . . .

   
   

2. Prior to the end of the six month conditional license period, a survey shall be conducted during normal business hours to assess whether the ALF is [in] substantial compliance with this Stipulation and Chapter 400, Part III, F.S., and Section 58A-5,

   F.A.C. If the facility is [in] substantial compliance, a standard ALF license shall be issued. If the facility is not in substantial compliance as herein defined, the license shall be denied.

   
   

3. The Facility's [Bethlehem's] conditional license may be revoked, upon the occurrence of the following:

   
   

   1. ALF fails to substantially comply with each term and condition of this Stipulation.

      
      

   2. If a survey establishes that ALF has failed to demonstrate substantial compliance with Chapter 400, Part III, F.S., and Section 58A-5, F.A.C., evidenced by five (5) or more repeat licensure deficiencies or violations.

      
      

   3. Failure to provide reasonable immediate access during normal business hours to AHCA employees to inspect or survey the facility or any ALF records or resident charts and files.

   
   

4. AHCA may obtain against ALF any relief, remedy or penalty pursuant to law, including but not limited to, Section 120.69 F.S., for breach by ALF of any of the provisions of this Stipulation.

1. By Final Order dated August 21, 1996, in DOAH

   
   

   Case No. 96-001967, AHCA Case No. 96-0956-S-OLC, AHCA adopted the Stipulation. The Final Order directed, among other things, that

   both AHCA and Bethlehem were to comply with the terms of the Stipulation.

2. On October 23, 1996, pursuant to the Stipulation, AHCA surveyed Bethlehem's facility. The survey was a full licensure survey.3 Bethlehem was cited for 17 deficiencies by AHCA, with AHCA designating 9 of the deficiencies as repeat deficiencies.4

3. The deficiencies cited at the October 1996 survey are alleged to be repeat deficiencies due to them being similar to or the same as the deficiencies at the September 1995 survey.

4. As a deficiency cited at the October 1996 survey, Bethlehem failed, during medication pass, to verify with each resident, who engages in self-administration of medication with supervision, the dosage of the medication against the label and name of the medication. During the medication pass, the staff person administering the medication punched medication out of a blister pack, placed the medication into a soufflé cup, and gave the medication in the soufflé cup to the resident.5 The deficiency cited occurred with Residents No. 2, 4, 5, 12, 13, 14, and 17.

5. At the September 1995 survey, the deficiency was that Bethlehem failed, during medication pass, to verify with each resident, who engages in self-administration of medication with supervision, the dosage of medication against the label and name of the medication.

6. The deficiency cited at the October 1996 survey is

   similar to or the same as the deficiency at the September 1995 survey. Further, the deficiency cited at the October 1996 survey affects the health, safety, or welfare of the residents at Bethlehem.

7. As a second deficiency cited at the October 1996 survey, Bethlehem failed, during medication pass, to allow residents, who engage in self-administration of medication with supervision, to administer their own medication. The staff person, administering the medication, performed the same procedure indicated in the first cited-deficiency above. This second cited-deficiency involves the same act and the same philosophy as the first cited-deficiency above; and both are, therefore, considered one cited-deficiency, instead of two separate cited-deficiencies.

8. At the September 1995 survey, the deficiency was that Bethlehem allowed unlicensed staff members to administer medication to residents.

9. The second cited-deficiency at the October 1996 survey is neither similar to nor the same as the deficiency at the September 1995 survey.

10. As a third deficiency cited at the October 1996 survey, Bethlehem failed to maintain an accurate medication administration record (MAR) for its residents. AHCA accepts as being true whatever is recorded on the MARs. At the October 1996 survey, for Residents No. 1, 20, 21, and 22, the MARs indicated,

    among other things, that the Residents were prescribed medication which was to be administered at certain times of the day at certain intervals during the day. However, the MARs also reflected by staff initials, indicating that medication was administered, that the Residents' medication was administered contrary to what was prescribed.

    1. Resident No. 1 was prescribed Prednisone (a systemic corticosteroid drug), 5 milligrams, to be administered once per day. The MAR reflected that the Resident's medication was administered twice a day.

    2. Resident No. 19 was prescribed Ativan (an anxiolytic drug), 0.5 milligrams, to be administered once daily. The MAR reflected that the Resident's medication was administered twice a day.

    3. Resident No. 20 was prescribed Trazodone (an antidepressant drug), 100 milligrams, to be administered at bedtime. The MAR reflected that the Resident's medication was administered at 8:00 a.m. and at a time later in the evening.

    4. Resident No. 21 was prescribed Lithium Carbonate (an antidepressant drug), 300 milligrams, to be administered once in the morning (one capsule) and once at bedtime (two capsules).

       The MAR reflected that the Resident's medication was administered three times a day.

    5. Resident No. 22 was prescribed Coumadin (an anticoagulant drug), 4 milligrams, to be administered every other

       day. The MAR reflected that the Resident's medication was administered every day.

    6. Petitioner failed to present any evidence or sufficient evidence to support the allegation in the Administrative Complaint of a deficiency as to Residents No. 3 and 7.

11. At the September 1995 survey, the deficiency was that there was an absence of staff initialing on the MAR, regarding two residents (Residents No. 6 and 5), to indicate that their medication was administered to them.

12. The third cited-deficiency at the October 1996 survey is similar to or the same as the deficiency at the September 1995. Further, the third cited-deficiency affects the health, safety, or welfare of the residents at Bethlehem.

13. However, even though the MARs reflected that the aforementioned Residents' medication was administered incorrectly, the MARs were incorrect. The medication was administered as prescribed. The dosage and the frequency of administration on the blister packs were correct, and the medication was administered according to the blister packs.

14. In the middle of October 1996, Bethlehem obtained the services of Proxy Care, Inc., as its pharmacy provider, beginning November 1, 1996. As part of its services to Bethlehem, Proxy Care's director of pharmacy provided Bethlehem services as a consultant pharmacist. One of the major concerns of the consultant pharmacist was to ensure that medications were

    administered correctly to the residents at Bethlehem. Proxy Care reviewed Bethlehem's MARs and determined that, even though Bethlehem had followed the directives of its former pharmacy provider in using and completing them, the MARs were confusing and administratively incorrect. The MARs of the aforementioned Residents were no different; they too were confusing and incorrect.

15. To determine whether the medication was administered as prescribed, Proxy Care compared the prescribed dosage and frequency with the remaining medication and found that there was no shortage or excess of medication for Bethlehem's residents, which indicated that the amount of medication remaining was consistent with the prescribed dosage and frequency. Consequently, the residents' medication (including Residents

    No. 1, 19, 20, 21, and 22) was administered as prescribed.

    
    

16. Furthermore, no evidence was presented to demonstrate overmedication or undermedication of the residents at Bethlehem.

17. Additionally, as part of the third cited-deficiency at the October 1996 survey, the MARs failed to reflect, as to 31 residents, whether the residents were allergic to any medications.6 Bethlehem's MARs contained an area for the listing of a resident's allergies. Even though demographic records usually reflect whether a resident is allergic to a medication, Bethlehem chose the MAR as the document on which it would list a resident's allergies. Bethlehem's practice was that, if a

    resident was not allergic to any medication, nothing was indicated as to whether the resident was allergic or not to medication. One resident, Resident No. 11, was allergic to Penicillin. Even though Bethlehem's demographic record reflected that the Resident was allergic to Penicillin, the Resident's MAR showed no allergy to Penicillin.

18. As a fourth deficiency cited at the October 1996 survey, Bethlehem maintained, in an unlocked container, illegally dispensed and unlabeled prescription drugs for the resident for whom the drug had been prescribed.

    1. An illegally dispensed and unlabeled bottle of Nitroglycerin sublingual tablets, which had expired in December 1995, was in Resident No. 1's room. Bethlehem did not maintain the Nitroglycerin. Bethlehem was not aware that the Resident possessed the Nitroglycerin. Resident No. 1's physician did not prescribe the Nitroglycerin, and the source of the Nitroglycerin was unknown.

    2. An unlabeled vial of Influenza Virus Vaccine was maintained by Bethlehem in an unlocked refrigerator. However, the refrigerator was located in the nurse's office which was locked and inaccessible to the residents. Furthermore, the Vaccine was in the refrigerator awaiting removal by Proxy Care which had discovered that the Vaccine was left by the former pharmacy provider.

    3. Petitioner failed to present evidence or sufficient

    evidence to support the allegation in the Administrative Complaint of a deficiency regarding an unlabeled bottle of Guiatuss DM in Resident No. 11's room.

19. At the September 1995 survey, the deficiency was that Bethlehem maintained illegally dispensed and unlabeled Humulin Insulin and five vials of unlabeled Vitamin B in an unlocked refrigerator.

20. The fourth cited-deficiency at the October 1996 survey is similar to or the same as the deficiency at the September 1995 survey. Further, the fourth cited-deficiency affects the health, safety, or welfare of the residents at Bethlehem.

21. As a fifth deficiency cited at the October 1996 survey, Bethlehem failed to maintain updated records of its residents' level of care and overall conditions.

    1. Resident No. 6 was found to be hoarding several trash bags of used cigarette packages in her room. The Resident had been residing at Bethlehem for three years and suffered from schizophrenia and paranoia. Bethlehem had no record reflecting that Resident No. 6 had been counseled regarding the trash bags in the room. In addition, although Resident No. 6 had lost 10 pounds in one month (from August 1996 to September 1996), Bethlehem had no record reflecting that it was aware of the Resident's weight loss and that it had notified the Resident's physician.

    2. Petitioner failed to present evidence or sufficient

    evidence to support the allegation in the Administrative Complaint of a deficiency as to Residents No. 1 and 3.

22. Regarding the fifth cited-deficiency at the

    
    

    October 1996 survey, Bethlehem possessed records which reflected that Bethlehem had monthly laboratory tests performed on Resident No. 6 from April 29, 1996, through August 30, 1996, and

    October 1, 1996. On July 31, 1996, the laboratory tests revealed that the Resident had a high cholesterol level; and as a result, Bethlehem placed Resident No. 6 on a low-fat diet. The results of the laboratory tests on August 30, 1996, and October 1, 1996, revealed that the Resident continued to suffer from a high cholesterol level. Even though Bethlehem presented evidence that it was aware of the Resident's weight loss and had verbally communicated with the Resident's physician regarding the weight loss, Bethlehem's records failed to reflect that Bethlehem was aware of the ten pound weight loss in one month by Resident No. 6 and that Bethlehem notified the Resident's physician of the weight loss.

23. At the September 1995 survey, the deficiency was that Bethlehem failed to maintain updated records of its residents' level of care and overall condition by failing to have a record of a residents' height and weight upon admission or since admission.

24. The fifth cited-deficiency at the October 1996 survey is similar to or the same as the deficiency at the September 1995

    survey. Further, the fifth cited-deficiency affects the health, safety, or welfare of the residents at Bethlehem.

25. As a sixth deficiency cited at the October 1996 survey, Bethlehem failed to have documentation showing that its employees were free from communicable disease.

    1. Bethlehem failed to have documentation showing that one of its employees, Employee No. 3, was free from communicable disease.

    2. At hearing, Bethlehem produced a Physician's Statement of Good Health, dated October 7, 1996, which showed that the employee was free from communicable disease. Inadvertently and by mistake, the document was not placed in the employee's record.

26. At the September 1995 survey, the deficiency was that Bethlehem failed to have documentation showing that one of its employees was free from communicable disease.

27. The sixth cited-deficiency at the October 1996 survey is similar to or the same as the deficiency at the September 1995 survey. Further, the sixth cited-deficiency affects the health, safety, or welfare of the residents at Bethlehem.

28. As a seventh deficiency cited at the October 1996 survey, Bethlehem failed to keep furniture and furnishings clean, in good repair and reasonably attractive.

    1. Several of the residents' rooms had cracked or inoperable lamps (Rooms No. 2, 4, and 6) and had spider webs and cobwebs, with dirt caught in the cobwebs (Rooms No. 1 and 6); and

       throughout the facility, there were several large spiders.

       
       

    2. One resident's room had a broken doorbell panel exposed (Room No. 1); and one resident's room had a closet door with a broken knob (Room No. 1).

    3. Petitioner failed to present evidence or sufficient evidence to support the allegation in the Administrative Complaint of a deficiency regarding Room No. 20.

29. Bethlehem has regular extermination service. However, such extermination service is no guarantee that spiders will not be present.

30. At the September 1995 survey, the deficiency was that Bethlehem failed to keep furniture and furnishings clean, in good repair and reasonably attractive in that, in a resident's room, a broken blind was hanging from the window.

31. The seventh cited-deficiency at the October 1996 survey is similar to or the same as the deficiency at the September 1995 survey. However, the seventh cited-deficiency does not affect the health, safety, or welfare of the residents at Bethlehem.

32. As an eighth deficiency cited at the October 1996 survey, Bethlehem failed to ensure that the facility was free from unsafe accumulation of possessions, including equipment and supplies of resident, staff, or any one else.

    1. In the closet of one resident's room, along with the resident's clothing, were three walkers, a wheelchair, and a small dresser drawer (Room No. 13); a bed in one resident's room

       was shoved against the resident's dresser, preventing drawers from being opened (Room No. 13); a resident's room had several garbage bags, containing old cigarette packages, in it (Resident No. 6); and residents had boxes, a suitcase, and clothing piled on the floor (Rooms No. 11 and 12).

    2. A broken washing machine from one resident's room was located in the day room awaiting disposal.

    3. Petitioner presented no evidence or insufficient evidence to support the allegation in the Administrative Complaint of a deficiency as to dirty clothes being piled in the laundry room.

33. Regarding the eighth cited-deficiency, Bethlehem allows only a resident's own belongings to be stored in the resident's room and allows a resident's extra clothing to be stored on the floor in a suitcase or a box.

34. At the September 1995 survey, the deficiency was that Bethlehem failed to ensure that the facility was free from unsafe accumulation of possessions, including equipment and supplies of resident, staff, or anyone else. This deficiency was evidenced by an air mattress that was propped up against the dining room wall; and by a planter containing only dirt, and extending the width of the dining room, that was in close proximity to the residents' eating area.

35. The eighth cited-deficiency at the October 1996 survey is similar to or the same as the deficiency at the September 1995

    survey. The eighth cited-deficiency affects the health, safety, or welfare of the residents at Bethlehem.

36. As to a ninth deficiency cited at the October 1996 survey, Petitioner failed to present evidence or sufficient evidence to support the allegation in the Administrative Complaint of a deficiency as to Bethlehem's failure to update admission and discharge logs, relating to the number of residents at the facility.

37. A violation alleged in the Administrative Complaint and not subject to the Stipulation was Bethlehem's failure to refund money to a former resident (Resident No. 18) after the resident's discharge from Bethlehem for medical reasons. At hearing, Petitioner failed to present evidence in support of this allegation. An inference is drawn that Petitioner has abandoned this allegation.

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

39. The Settlement Stipulation provides that Bethlehem's license "may be revoked" if a survey establishes that Bethlehem is not in "substantial compliance with Chapter 400, Part III, F.S., and Section 58A-5, F.A.C., evidenced by five (5) or more repeat licensure deficiencies or violations." The Administrative

    Complaint alleges that Bethlehem violated the Stipulation by having five (5) or more deficiencies at the October 23, 1996, survey that were repeat deficiencies. AHCA may revoke Bethlehem's license as an ALF based upon the Stipulation, so long as Bethlehem is afforded notice and an opportunity to be heard, pursuant to Chapter 120, Florida Statutes, regarding the violation of the Stipulation and subsequent or new deficiencies or violations not settled by the Stipulation. See Gonzalez v.

    Department of Health and Rehabilitative Services, 418 So. 2d 1128 (Fla. 1st DCA 1982).

40. Section 400.401, Florida Statutes, provides guidance for administrative proceedings involving licenses for ALFs and provides in pertinent part:

    (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.

    
    

41. Section 400.414, Florida Statutes, provides for the discipline of the license of an ALF and provides in pertinent part:

    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:

       * * *

       
       

       (e) Five or more repeated or recurring identical or similar class III violations of this part which were identified by the agency during the last biennial inspection, monitoring visit, or complaint investigation and which, in the aggregate, affect the health, safety, or welfare of the facility residents.

       
       

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       (h) 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.

       
       

42. Rule 58A-5.0131, Florida Administrative Code, provides in pertinent part:

    (2) Additional definitions applicable in this rule chapter are as follows:

    
    

    * * *

    
    

    (uu) Repeat Deficiency. A deficiency which is cited as a result of a survey conducted pursuant to Rule 58A-5.033(2), F.A.C., following a citation for the same deficiency occurring within the current or immediately preceding licensure period.

    
    

43. Section 400.402, Florida Statutes, provides certain definitions applicable to ALFs and provides in pertinent part:

    (25) "Supervision of self-administered medication" means reminding residents to take medication, opening bottle caps for residents, opening prepackaged medication for residents, reading the medication label to residents, observing residents while they take medication, checking the self- administered dosage against the label of the container, reassuring residents that they

    have obtained and are taking the dosage as prescribed, keeping daily records of when residents receive supervision pursuant to this subsection, and immediately reporting noticeable changes in the condition of a resident to the resident's physician and the resident's case manager, if one exists.

    Residents who are capable of administering their own medication shall be allowed to do so.

44. Rule 58A-5.0182, Florida Administrative Code, provides in pertinent part:

    (6) Medication. The method for management of a resident's medications, whether self- administration, self-administration with supervision, or administration by licensed personnel, shall be as directed by the health care provider in the health assessment report required pursuant to Rule 58A-5.0181, F.A.C., or as prescribed on new orders.

    * * *

    
    

    1. Supervision of self-administered medication.

       
       

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       1. The designated staff person shall supervise the self-administered medication in the following manner:

          1. Obtain the medication container from the storage area or the resident.

          2. Ensure that the medication is given to the resident for whom it is prescribed at the time indicated on the prescription.

          3. Verify with the resident the accuracy of the dosage with the label and the name of the medication.

          4. Observe the resident self-administering the medication.

          5. Record the observed dosage taken on the medication administration record at the time taken.

             
             

       2. The designated staff persons may also provide the following assistance with self-

          administered medication as needed by the resident:

          1. Prepare necessary items such as juice, water, cups, spoons, etc., to assist the resident in the self-administration of medication.

          2. Remind the resident that it is time to take the medication as prescribed.

          3. Open or close the medication container or tear the foil of prepackaged medications.

          4. Assist the resident for whom the medication is prescribed in the self- administration process. Examples of such assistance include the steadying of the arm, hand, or other parts of the resident's body, so as to allow the self-administration of medication.

          5. Assist the resident by placing unused doses of solid medication back into the medication container, if any were removed by the resident and not administered. If the medication appears to have been contaminated, it shall not be returned to the container.

       * * *

       
       

    2. Administration of Medication. . . An accurate up-to-date medication administration record shall be maintained. Administered medications shall be centrally stored as provided in paragraph (d).

       
       

    3. Storage of medications by the facility.

    
    

    1. No prescription drug shall be kept by the facility unless it has been legally dispensed and labeled for the resident for whom it is prescribed as provided in Chapter 465, F.S. The label shall include the following information:

       1. Practitioner's name.

       2. Resident's name.

       3. Date dispensed.

       4. Name and strength of drug.

       5. Directions for use, including specifically when the medication is to be taken. If the directions are "as needed" or "as directed," the administrator shall ensure that the health care provider is requested to provide revised instructions. . . .

       6. The prescription number and name and address of the issuing pharmacy.

       
       

    2. Medication may be centrally stored:

       1. If the preservation of medicines requires refrigeration.

       2. When medication is determined, and documented by the health care provider, to be hazardous if kept in the personal possession of the person for whom it was prescribed.

       
       

       * * *

       
       

    3. Centrally stored medications shall be:

    1. Kept in a locked cabinet or other locked storage receptacle or area at all times.

    2. Accessible only to the staff responsible for supervision of self-administration and for administration of medication. Such staff shall have ready access to keys to medication storage areas at all times.

    3. Located in an area free of dampness and abnormal temperature, except that a medication requiring refrigeration shall be refrigerated. Refrigerated medications shall be secured by being kept in a locked container within the refrigerator, by keeping the refrigerator locked, or by keeping the area in which refrigerator is located locked.

    4. Each container of medication shall be kept closed or sealed.

45. Rule 58A-5.019, Florida Administrative Code, provides in pertinent part:

    (5) The administrator of a facility shall:

    
    

    * * *

    
    

    (h) Assure that members of the staff appear to be free from apparent signs and symptoms of communicable disease, as documented by a statement from a health care provider. . . .

    
    

46. Rule 58A-5.022, Florida Administrative Code, provides in pertinent part:

    1. Every facility shall:

       * * *

       
       

       (c) Keep all furniture and furnishings clean, in good repair and reasonably attractive.

       
       

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       (e) Keep the facility free of unsafe accumulations of possessions including equipment and supplies of residents, staff or owner.

       
       

47. Rule 58A-5.024, Florida Administrative Code, provides in pertinent part:

    The owner or administrator of a facility shall maintain the following written records in a place, form and system ordinarily employed in good business practice. All records required by this chapter shall be accessible to department and agency staff.

    All resident contracts shall be retained for five years after expiration.

    1. Facility Records.

       (a) An admission and discharge register listing names of each resident with date admitted, the place from which the resident was admitted, the date and reason for discharge, adequate identification of the facility to which the resident is discharged or future home address. Readmission of a resident to the facility after discharge requires a new entry. Discharge of a resident is not required if the facility is holding a bed for a resident who is out of the facility but intends to return. The admission and discharge register shall be maintained as a separate document, apart from individual resident files.

       * * *

       
       

       (c) Daily up-to-date medication records shall be kept on file in the facility for residents who receive administration of medication or supervision of self-

       administered medications, on a designated department form, an optional form, or a form approved by the AHCA area office.

       
       

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    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.

       
       

       * * *

       
       

       (c) Other resident records shall contain:

       1. Demographic data as follows:

          1. Name,

          2. Sex,

          3. Race,

          4. Date of birth,

          5. State of birth,

          6. Marital status,

          7. Name of spouse, if married,

          8. Next of kin, or documentation of guardianship,

          9. Parents' names,

          10. Occupation,

          11. Social security number,

          12. Medicaid and Medicare number,

          13. Source of referral and admission, and

          14. Branch of military service and military identification number for residents admitted after September 30, 1992.

       Missing data requirements shall be evaluated to determine whether the owner or administrator made a good faith attempt to obtain the information. If so, the missing data shall not be considered a deficiency.

       * * *

       
       

       3. Health information as follows:

       1. A copy of the physical examination by a health care provider as required by 58A- 5.0181(4).

       2. Name, address, and telephone number of the resident's health care provider.

       3. Description of resident's overall condition and level of care required, updated as needed.

       4. Reports of resident illness and medical attention provided.

       5. Record of height and weight which is initiated on admission. Information may be taken from the resident's physical examination. Residents receiving individual assistance with activities of daily living shall have their weight recorded semi- annually.

48. AHCA has demonstrated that Bethlehem violated the following rules regarding deficiencies cited at the October 23, 1996, survey:

    1. As to the first cited-deficiency, Rule 58A-5.0182(6)(b)2 was violated.

    2. As to the third cited-deficiency, Rules 58A-5.0182(6)(c) and 58A-5.024(1)(c) were violated.

    3. As to the fourth cited-deficiency, Rule 58A- 5.0182(6)(d)1 was violated.

    4. As to the fifth cited-deficiency, Rule 58A- 5.024(2)(c)3.c was violated.

    5. As to the sixth cited-deficiency, Rule 58A-5.019(5)(h) was violated.

    6. As to the seventh cited-deficiency, Rule 58A-5.022(1)(c) was violated.

    7. As to the eighth cited-deficiency, Rule 58A-5.022(1)(e) was violated.

49. Moreover, AHCA has demonstrated that all of the above

    violations are deficiencies and are repeat deficiencies. Bethlehem has committed more than five (5) repeat violations.

50. Furthermore, all of the above repeat deficiencies, except for the seventh repeat deficiency, in the aggregate, affect the health, safety, or welfare of the residents at Bethlehem.

51. AHCA failed to demonstrate that a deficiency occurred as to the second cited-deficiency in violation of Rule 58A- 5.0182(6)(b)3; and as to the ninth cited-deficiency in violation of Rule 58A-5.024(1)(a).

52. Subsection 400.419, Florida Statutes, provides, among other things, the classifications of violations and provides in pertinent part:

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

       
       

       1. Class "I" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines present an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. . . . A class I violation is subject to a civil penalty in an amount not less than $1,000 and not exceeding $5,000 for each violation. A fine may be levied notwithstanding the correction of the violation.

       2. Class "II" violations are those

          conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines directly threaten the physical or emotional health, safety, or security of the facility residents, other than class I violations. A class II violation is subject to a civil penalty in an amount not less than $500 and not exceeding

          $1,000 for each violation. . . . If a class II violation is corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense.

          
          

       3. 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 agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or class 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.

          
          

       4. Class "IV" violations are those conditions or occurrences related to the operation and maintenance of a building or to required reports, forms, or documents that do not have the potential of negatively affecting residents. These violations are of a type that the agency determines do not threaten the health, safety, or security of residents of the facility. A facility that does not correct a class IV violation within the time limit specified in the agency- approved corrective action plan is subject to a civil penalty of not less than $50 nor more than $200 for each violation. Any class IV violation that is corrected during the survey will be identified as an agency finding and not as a violation.

    2. The agency may set and levy a fine not to exceed $500 for each violation which cannot be classified according to subsection

    (3) In no event may such fine in the aggregate exceed $5,000.

    
    

53. No evidence was presented at hearing as to the classification of the deficiencies at the September 1995 survey or the deficiencies cited at the October 1996 survey. However, in the record is the agency action letter from AHCA dated November 22, 1996, regarding the October 1996 survey, which denotes the medications deficiency as Class I and the medication records deficiency as Class II.

54. The Stipulation itself defines what is not being in substantial compliance with the Stipulation. By definition, pursuant to the Stipulation, Bethlehem is not in substantial compliance with the Stipulation. AHCA has demonstrated that at the October 1996 survey Bethlehem committed more than five (5) repeat licensure deficiencies.

55. Pursuant to the Settlement Stipulation, the revocation of Bethlehem's license is at the discretion of AHCA. Revocation is too harsh a penalty under the circumstances. Consideration should be given to Bethlehem obtaining the services of a new pharmacy provider, which provides a consultant pharmacist; to the progress made by Bethlehem with the new pharmacy provider; to the medications being administered as prescribed even though the MARs were incorrect; to the documentation showing that Bethlehem's employee was free from communicable disease being inadvertently

not placed in the employee's record; and to the Vaccine, which was left by Bethlehem's former pharmacy provider, being in a locked room and awaiting pickup. Further, consideration should also be given to Bethlehem monitoring the resident with a high cholesterol level through laboratory tests, low fat diet, and verbal communication with the resident's physician even though Bethlehem failed to record the resident's weight loss and communication with the physician; and to the seventh repeat deficiency not affecting the health, safety, or welfare of the residents at Bethlehem.

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:

1. Finding that Bethlehem Retirement Home failed to be in substantial compliance with the Settlement Stipulation, approved and adopted by the Final Order dated August 21, 1996, in DOAH Case No. 96-001967, AHCA Case No. 96-0956-S-OLC, as evidenced by more than five (5) repeat deficiencies being found at the October 23, 1996, survey.

2. Suspending the Assisted Living Facility license of Bethlehem Retirement Home for a period of six (6) months under terms and conditions deemed appropriate.

3. Imposing an administrative fine of $3,000.00.

DONE AND ENTERED this 23rd day of March, 1998, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1998.

ENDNOTES

1/ The survey document reflecting the results of the survey conducted on September 11, 1995, was not entered into evidence or made a part of the record. However, the parties presented testimony regarding the survey and the survey document and neither party objected to such testimony being presented.

2/ Throughout the Stipulation, "ALF" refers to Bethlehem.

3/ The survey document reflecting the results of the survey conducted on October 23, 1996, was not entered into evidence or made a part of the record. However, the parties presented testimony regarding the survey and the survey document and neither party objected to such testimony being presented.

4/ The deficiencies cited at the October 23, 1996, survey and designated repeat deficiencies by AHCA will be referred to as first, second, third, fourth, fifth, sixth, seventh, eighth, and ninth cited deficiencies. This numbering bears no relationship to how the cited deficiencies were listed or to the severity of the cited deficiencies.

5/ The testimony that other residents were handed vials; that the residents examined the medication, thereby, verifying the medication; and that the residents self-administered the medication is found to be credible. During the October 1996 survey, AHCA found such conduct to be acceptable as verification of the medication by those residents; and, therefore, AHCA determined that no deficiency existed in those circumstances. No

credible evidence has been presented to persuade this Administrative Law Judge that AHCA's determination is inconsistent or unreasonable.

6/ AHCA allows an ALF to choose which documents the ALF wants to use to document the drugs to which a resident is allergic.

However, the document chosen by the ALF must reflect whether a resident is allergic to any drugs.

COPIES FURNISHED:

Jennifer A. Steward, Esquire

Agency for Health Care Administration 3810 Inverrary Boulevard

Lauderhill, Florida 33319

Donna Szczebak O’Neil, Esquire

301 East Commercial Boulevard Fort Lauderdale, Florida 33334

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox, Building III

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox, Building III

2727 Mahan Drive

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: 97-000161

Orders for Case No: 97-000161