STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WATKINS HEALTH CENTER, )

)

Petitioner, )

)

vs. ) Case No. 99-0282

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed-fact hearing on September 21-27, 1999, in Tallahassee, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Fred H. Flowers, Esquire

518 North Calhoun Street Tallahassee, Florida 32301

For Respondent: Mark S. Thomas, Esquire

Michael O. Mathis, Esquire Madeline McGuckin, Esquire Agency for Health Care

Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

Whether the Agency for Health Care Administration (AHCA) should deny Petitioner's application for renewal of a standard

assisted living facility (ALF) license.

PRELIMINARY STATEMENT

By a letter dated November 17, 1998, AHCA notified Peggy Watkins and Timothy G. Watkins, Sr. (the owners) of its intent to deny their application for renewal of Watkins Health Center's (Petitioner's or Watkins') standard ALF license, based on the owners' failure to satisfy statutory requirements during the 1996-1998 licensure period. The owners filed a petition for a disputed-fact hearing, and the cause was referred to the Division of Administrative Hearings on or about January 27, 1999. The case was scheduled for hearing.

AHCA filed its required pre-hearing statement; Petitioner did not. Petitioner moved for a continuance and appeared on April 6, 1999, the date scheduled for final hearing on the merits, to argue that motion. The continuance was granted.

AHCA was granted leave and filed an amendment to the November 17, 1998, intent to deny. This amendment was dated April 15, 1999. 1/

Petitioner obtained counsel, and discovery ensued. On July 12, 1999, an Order Establishing Standards of

Proof was entered. This ruling is re-considered within the following Conclusions of Law.

The parties stipulated that AHCA would go forward first in the presentation of evidence.

At the disputed-fact hearing, AHCA presented the oral testimony of Sandra Holbert, Richard G. Glover, John Morton, Mark Matthews, Dan MacDonald, Jacqueline Henry, Greg Rice, Linda Huff, and Ana Lopez-Edwards. AHCA had Respondent's Exhibits R-1, R-2, R-3, R-4, R-5, R-6, R-7, R-8, R-9, R-10, R-

23, R-24 (in two parts), and R-26 admitted in evidence. Exhibit R-25 was marked but not admitted. Exhibit R-26 constitutes the deposition testimony of Vickie Sims.

Petitioner presented the oral testimony of Ken Arnold, Jacqueline Jackson, David Clark, Mary Seabrooks, Zandra Gilley, Etta Brinson, Claresa Nelson, Geraldine Cummings, Peggy Watkins, and Laura Harris. Petitioner had Petitioner's Exhibits P-1, P-2A, P-2B, P-3, P-4, P-6, P-8, P-9, P-10, P-

11, P-12, P-13A-13G, P-14, P-15A-15D, P-16A-16H, P-19A-19G, P-

20, P-21, and P-23 admitted in evidence. Exhibits P-5, P-7, P-15E, P-17, P-18, and P-22 were marked, but not admitted.

Certain statutes, rules, and orders were officially recognized.

A Transcript of nine volumes was filed in due course, as well as 22 other post-hearing items. Pursuant to a joint motion, each party was permitted to file a 50-page Proposed Recommended Order. Also, pursuant to an unopposed motion, an Order was entered for sealing Petitioner's Exhibits 2A, 2B, 4, 5, and 20 in an envelope labeled "confidential" to be

transmitted with the rest of the record to the Agency, together with this Recommended Order. 2/ An Order dated November 17, 1999, established that only Petitioner's Amended Proposed Recommended Order, AHCA's Substituted Proposed Recommended Order, and AHCA's Supplemental Proposed Recommended Order would be considered. Ultimately, AHCA filed no supplemental proposed recommended order, and therefore, this Recommended Order has considered only the other two items.

FINDINGS OF FACT

1. Although evidence was presented concerning all factual and legal issues, including mitigation, a recitation of all of that evidence is not necessary to a resolution of this case. Survey allegations and defense theories which were not proven will not be discussed, except as necessary, and only findings of fact which are dispositive will be made.

2. AHCA is the state agency for quality control and licensing of ALFs. In order to ensure quality control of such facilities, AHCA conducts annual, biennial, and follow-up surveys. It also conducts complaint investigations as needed.

3. Peggy Watkins and Timothy G. Watkins, Sr., hold a standard ALF license to operate Watkins Health Center, which they own. They held such a license and operated that facility throughout the 1996-1998 biennial licensure period.

4. This case arises upon the denial of Watkins' renewal application for a standard ALF license. The renewal application was denied on the basis of deficiencies found by AHCA surveyors during the biennial licensure period.

   
   

5. The reasons for denial are set out in the April 15, 1999, amended denial of renewal application letter which states the reasons for denial as:

   . . . It has been determined by the Agency for Health Care Administration that your application does not meet or comply with the standards as an ALF pursuant to Chapter 400, Part III, Florida Statutes (F.S.), and Chapter 58A-5, Florida Administrative Code (F.A.C.) Further, the licensee has committed an intentional or negligent act which materially affects the health and safety and walfare [sic] of the residents of your facility. See 400.414(1)(a), Florida Statutes Suppelment [sic] (1998).

   
   

   This specific basis for this determination is:

   
   

   The administrator failed to adequately supervise residents and endangered the lives of the residents at your facility.

   The facility failed to meet minimum licensure standards pursuant to Section 400.414(1)(e) and (i), F.S., as evidenced by

   two repeated class II deficiencies, eight repeated class III deficiencies cited by the Agency between June 11, 1996 and October 9, 1998, during biennial and follow-up surveys, and complaint investigations.

   
   

6. Petitioner contends that all or some of the cited deficiencies did not exist, were merely record-keeping flaws, or otherwise were not so serious as to require denial of the renewal application. Petitioner also asserts that all deficiencies were corrected by the respective follow-up surveys; that if a follow-up survey had been conducted after the October 1998 biennial survey, those deficiencies also would have been found to have been corrected; and that since a final follow-up survey was not conducted, the October 1998 survey results should not be used against Petitioner for purposes of denying the standard license renewal.

7. In making surveys and investigations, AHCA follows a team approach. Surveyors on a team individually observe and note flaws and tentatively assign "tag" numbers to them, based on categories of deficiencies. Under each tag, all flaws in that category which are observed on that date are described with specificity. Members of the survey team write-up their individual observations and then meet together to discuss the flaws before the team finalizes the tagging and classing of all observations, with Class I being the most severe type of defect and Class IV being the least severe type of defect.

   See Section 400.419(1)(b), Florida Statutes, as set out more fully in the following Conclusions of Law.

8. Complaint investigations may be done by a team or by

   only one surveyor.

   
   

9. Although it is axiomatic that some subjectivity will be inherent in tagging and classing of violations, it is found, upon the evidence as a whole, that all surveyors who testified herein were adequately trained and professionally motivated within statutory and rule standards for surveying.

10. Having different surveyors participate on different complaint investigations and surveys contributed to a fair assessment and diminished the possibility of unfairness through any individual surveyor's improper motive or subjectivity.

11. It is further found that the surveyors herein appropriately followed survey protocols by using samples and stating percentages instead of tracking each specific resident or bedroom or bathroom from survey to survey. The utilization of sampling and percentage methodology is fairer to a facility than the tracking method proposed by Petitioner because the sampling and percentage methodology does not factor-in either a facility's consistent failures or consistent successes in any single location within the facility and because it provides a better overview of whole-facility compliance.

12. In making these following Findings of Fact, I have not considered a survey tag or violation severity classification to have been proven without direct testimony by

    at least one surveyor who observed the deficiency on the date specified. The mere fact that a survey report contained a specific tag and class and that the same survey then became a business record of the Agency is not sufficient to establish that the deficiency actually existed.

13. In addition to surveyors who evaluated Watkins during the biennial licensure period, AHCA presented the testimony of John Morton as an expert in regulation and operation of ALFs. His testimony sometimes differed from the on-site surveyors in ranking of various deficiencies, but overall his classifications were substantially the same. In considering Mr. Morton's testimony with regard to tags and classifications of deficiency, I have considered that he has been employed as a surveyor by the Agency for 20 years as a health facility evaluator, that he is a State-certified ALF administrator, and that he is a federally-certified quality control supervisor. While his opinions have been considered in determining the reasonableness or unreasonableness of the on-site surveyors' tags or classifications for specific deficiencies, Mr. Morton's opinions have not been applied to raise or lower the classifications assigned by the surveyors because Mr. Morton did not actually participate in any survey of Watkins.

14. Watkins housed mentally ill residents throughout the

    1996-1998 biennial licensure period. It was stipulated that these residents sometimes behave in bizarre ways, often require psychotropic medications, and are unpredictable, scatological, and unsuccessful at using restrooms. 3/

15. In 1995, AHCA began to create a licensing process for "limited mental health" resident facilities, pursuant to Section 400.4075, Florida Statutes (1995). The Agency acknowledged that Petitioner applied for such a license in April 1997. Its licensing officer, Ms. Huff, testified that the Agency "put a hold on such licenses." No legal authority for this "hold" was cited. The Agency contends that it sent Petitioner a request for further applicant information in October 1997 and never received the information. Petitioner contends that Mr. and Mrs. Watkins never received the Agency's request. The Agency failed to demonstrate the contents of its request for further information, and clearly, if sent, the October 1997 request was not sent to Petitioner's owners within 90 days of receipt of Petitioner's April 1997 application.

16. Surveys, complaint investigations, and follow-up

    
    

    surveys of Watkins, pursuant to its 1996-1998 biennial standard license, were conducted by the Agency on June 11, 1996; July 31-August 1, 1996; September 5, 1996; October 18-

    20, 1996;

    October 27, 1997; November 10, 1997; January 27, 1998; May 4,

    
    

    1998; June 15-16, 1998; and July 6, 1998. On October 8-9, 1998, a biennial survey was conducted.

17. It was not established that the Agency targeted Watkins for more investigations and surveys than other ALFs. Agency personnel had no control over when complaints were made against Watkins, which complaints required Agency investigation, and once the Agency had cited Watkins for a deficiency(ies), surveyors were required to return timely for compliance follow-ups until the biennial survey.

18. On June 11, 1996, the Agency conducted a survey of Watkins. In the course of that survey, surveyor Sandra Holbert observed five residents taking food and drink off discarded dining trays and consuming it themselves. A staff member was present and did not intervene. Ms. Holbert observed the five residents return to the kitchen door and receive additional portions. She interviewed residents and found that they knew they were free to get second portions if they desired. The survey team correctly recorded this deficiency as a Class II,

    Tag A700, Resident Care Standard violation. The other tags cited for the June 11, 1996, survey on the June 18, 1996, survey report were not proven.

19. On July 31-August 1, 1996, the Agency conducted a

    complaint investigation of Watkins. Surveyor Richard G. Glover reviewed Watkins' staffing and found it to be deficient. The minimum full-time equivalent staff (FTE) hours per week required for Watkins' resident census were 288, and the actual hours posted were 260. Despite explanations then, and at hearing, by Administrator Peggy Watkins that her time when working as a staff person was overlooked or ignored by Mr. Glover, I find more credible Mr. Glover's testimony that on July 31-August 1, 1996, Mrs. Watkins was unable to explain when the current work schedule had changed and that even if he added in the hours Mrs. Watkins had told him she worked, the total hours would not match the FTE requirements. Mr. Glover concluded that there were no time sheets nor payroll cards present in the facility on the date of his visit to support Ms. Watkins' contention. This deficiency was recorded as a Class II, Tag A505 (later re-numbered A507) Staffing Standards violation on the August 15, 1996, survey report, and proven at the hearing.

20. The August 15, 1996, report also recorded that two

    
    

    resident bedrooms had broken windows: in one broken window, the shards of glass had been taped with gray tape, and in the second broken window, the shards of glass remained in the pane. This situation was classified on the report as a deficiency under Tag A705, Resident Care Standards, but it is

    unclear from

    
    

    Mr. Glover's testimony whether he personally saw the broken windows on July 31-August 1, 1996.

21. On September 5, 1996, the Agency conducted a follow- up investigation/survey of Watkins. In the course of that survey, Mr. Glover again reviewed Watkins' staffing and found that it was deficient. The minimum hours, per week, required for the resident census at that time were 288, and upon the same type of review as noted in Finding of Fact 19, above, it was verified that the actual hours worked were 279. Weighing the credibility of Petitioner's several witnesses against the surveyors' contemporaneous request for, and the contemporaneous absence of, actual timesheets, I find that this deficiency was fully established as a repeat Class II Tag A505 deficiency on September 5, 1996.

22. Also on September 5, 1996, Mr. Glover personally observed that two resident bedrooms had broken windows. In one broken window, the shards of glass had been taped with gray tape. In the second broken window, the shards of glass remained in the pane. He recorded this deficiency under Tag A705, Resident Care Standards. He noted the broken windows as a repeat of the same Class II deficiency found on the July 31- August 1, 1996, complaint investigation. Also included under Tag A705, were the

    September 5, 1996, observations by Mr. Glover of bedroom lights being out and exposed overhead lights. During the same survey, Mr. Glover identified the need for a preventive maintenance program to prevent grease build-up contamination in the vent over the kitchen range from falling into the food on the range. Without direct proof of broken windows on July 31-August 1, 1996 (see Finding of Fact 20, above), it is not possible to label the broken window on September 5, 1996, as a "repeat" deficiency. However, it is specifically found, pursuant to Mr. Glover's direct testimony, that the broken windows, defective lights, and greasy stove existed on September 5, 1996, constituting a

    Class II, Tag A705, Resident Care Standards deficiency at that time.

23. On October 18-20, 1996, during a follow-up investigation, Mr. Glover noted that both the A505 staff deficiency and A705 grease build-up situation had been corrected.

24. On October 27, 1997, the Agency conducted a complaint investigation of Watkins. Surveyors Ana Lopez- Edwards and

    Mr. Glover tagged and classified three deficiencies. The ALF license was not posted or located. This was Tag A003,

    Class III, a Facility Record Standards deficiency. Advocacy

    information, including the Resident Bill of Rights, was not posted, and this was tagged as A201, Class III. They found no documentation that residents were receiving, at admission, packets of rules and regulations, as required by law. This was classified as Tag A308, Class III, because, by inference, it was a denial of the rights of the residents, or the residents' representatives, to be aware of, and to function in, their surroundings. These deficiencies certainly presented an impediment to residents lodging complaints or seeking third party intervention.

25. Surveyors also cited and directly testified to the following specific observations on October 27, 1997: twenty percent of resident bedrooms contained non-operational overhead lights, which were frequently uncovered. One fixture had a broken bulb with an exposed lighting element. The concern with the light fixtures was that a resident could stick his hand into the exposed lighting element. Two bedrooms and three bathrooms had a strong urine odor. Thirty percent of the bedrooms had no window covering. Other bedrooms had curtains only partially covering the windows. One bathroom had a stained window which partially exposed any resident in the bathroom. Fifty percent of the bathrooms were not adequately cleaned. Seventy-five percent of the bathrooms contained no soap or towels. Two bathroom commodes

    were non-functional. Surveyors also found that the hot water temperature in one resident bathroom was 96

    
    

    degrees Fahrenheit, when the hot water temperature is required to be between 105 degrees and 115 degrees Fahrenheit.

26. Many of the foregoing specific flaws had been raised on previous survey reports, but only the lighting deficiencies and window problems were observed previously and on October 27, 1997, by testifying surveyors, so as to prove- up repeated specific flaws. Nonetheless, since all the foregoing flaws which were observed on October 27, 1997, fit within the specifications for Tag A705, Resident Care Standards, I am satisfied that a "repeat" Class III, A705 deficiency has been proven for October 27, 1997.

27. On October 27, 1997, a Class III, A902 Tag, Maintenance and Housekeeping Standards, was correctly assigned to the absence of drawer pulls and other furniture deficiencies in many bedrooms.

28. Additionally, on October 27, 1997, Tag A1010 was validly assigned a Class III, Physical Plant Standards deficiency, in that 50 percent of the bedrooms were without reading lamps.

29. On this same survey, surveyors found that one resident bathtub was not equipped with a required safety

    handrail. The Agency validly cited this deficiency under Tag 1018, Physical Plant Standards, as a Class III deficiency.

    
    

30. On November 10, 1997, a complaint investigation was performed. Minimal testimony was presented, and no deficiencies were proven for this date.

31. On January 27, 1998, a follow-up survey of Watkins occurred. At that time, surveyors cited Watkins under Tags A003, A201, A705, A902, A1001, A1018 and A1022 as uncorrected from the October 27, 1997 date, and cited additional deficiencies as being out of compliance with State Standards under Tags A200, A700, A702, A703, A706, A1002, and A1016, all of which were cited as either Class II or Class III deficiencies, some of which were allegedly repeat deficiencies. The only direct evidence as to the validity of these January 27, 1998, citations was introduced through the testimony of surveyor Ana Lopez-Edwards.

32. Ms. Lopez-Edwards testified to the presence of strong urine odors on January 27, 1998, and to a "musty" smell about the entire facility on that date. This direct evidence only proves-up a very small portion of the several flaws listed to make up the citation of a repeat Tag A705, Resident Care Standards. Without more, that entire tag assigned on

    January 27, 1998, is not proven and it cannot legitimately be classified as a repeat Class III deficiency for that date.

33. Ms. Lopez-Edwards also verified that during the January 27, 1998, survey, she had observed a Watkins resident kneeling in a public road that abuts the property. This is a paved road with numerous speed bumps designed to slow down vehicular traffic. Ms. Lopez-Edwards alerted one of Watkins' staff members to the resident's peril. The staff person told Ms. Lopez-Edwards, "That's Mr. ---, he does that all the time." The staff person then walked away without intervening to remove the resident from the road. On January 27, 1998, surveyors classified this incident under Tag A700 as a Class III deficiency.

34. At hearing, Ms. Watkins admitted that the resident was at risk while in the road, but contended that he was actually to the side of the road when observed by Ms. Lopez- Edwards. Ms. Watkins testified that, "Now you ask was that health, a risk for him per se, being in the road I would say, yes, but this is what he does constantly."

35. Apparently, this particular resident constitutes both a "wanderer" and a religious devotee. While ALF residents are entitled to visit outside the facility and to practice their freedom of religion, the ALF has an obligation to protect them from inadvertent self-injury. The evidence is

    clear that although rural, the paved road passing Watkins represents a danger to this potentially self-injurious resident, and the ALF was deficient in not intervening to protect him. The citation of this incident under Tag A700 as a Class III, Resident Care Standard deficiency was appropriate. Although the specific incident was not a "repeat," the Tag was a "repeat" of June 11, 1996.

36. On May 4, 1998, a follow-up survey and new complaint investigation was conducted. At that time, Watkins' logbook stated that a resident had disappeared at some time after 8:00 p.m. on April 20, 1998. The logbook did not mention any notification to the administrator, neighbors, or police. The logbook further stated that at 3:30 or 4:00 a.m., April 21, 1998, the resident returned and was at Southwestern State Hospital in Thomasville. It apparently was unclear from the log book whether this patient was picked up at Southwestern State Hospital in Thomasville, Georgia, or was taken there by

    Administrator Peggy Watkins after his return, but Ms. Watkins' testimony concerning the incident was as follows:

    Q: With regard to the resident named M.T. having disappeared back in 4/98, are you familiar with that incident?

    
    

    A: Yes.

    
    

    Q: One it was - was the resident in fact - were his whereabouts in fact unknown?

    
    

    A: At that particular time, yes.

    
    

    Q. All right. And once that determination was made, what action was taken: What action was taken, if any?

    
    

    A: Well it wasn't on my shift, but it was told to me that she called, she reported him missing.

    
    

    Q: To whom?

    
    

    A: To the sheriff's department. Q: By calling 911?

    A. Yes, by calling 911 she reported him missing. . . And probably that morning about 4:00 that morning, they called and stated his whereabouts. And I went after him probably around 7:00 that morning.

    
    

37. Clearly, Ms Watkins admitted leaving the patient in police custody an additional three hours. The Agency validly tagged this as a Class III, Tag A700, Resident Care Standards, deficiency. The A700 classification makes it a repeated tag.

38. Also in the course of the May 4, 1998, survey, Mr. Glover observed, and correctly assigned, a Tag A705

    Resident Care Standards Class III deficiency because an east bathroom light was inoperable; a second floor bedroom did not have a light bulb cover for the overhead fan light; and the second floor bedroom had no window covering, thus exposing the resident within. Some of the tag components are repeats; the tag itself is a repeat.

39. Mr. Glover also assigned yet another Tag A705, Class III repeat deficiency for findings that included 20 percent

    of the resident bedrooms observed having non-operational overhead lights or uncovered overhead lights and one fixture with a broken bulb and an exposed lighting element; two bedrooms and three bathrooms with strong urine odor; and 30 percent of the bedrooms observed having no window covering while others had curtains that only partially covered the windows. So as to be fair to the facility, Mr. Glover and other surveyors tested the bedroom lights during the survey, both from the wall switches and the pull cords in each of the rooms they observed. It is immaterial that the defective bedrooms and bathrooms observed for the repeat deficiency ratings on May 4, 1998, may not have been the same bedrooms and bathrooms as were found defective when this problem was cited previously. Sampling is within survey protocols, and facilities have the obligation of the whole physical plant meeting standards.

40. A complaint was initiated by the Jefferson County

    
    

    Health Department, and on June 15-16, 1998, the Agency conducted an investigation. By observations and interviews on that date, Mr. Glover concluded that a repeat Tag A705, Class II, Resident Care Standards citation was appropriate because the facility was not being maintained in a safe, sanitary manner ensuring the

    safety of residents and their physical well-being. This was

    proven by direct evidence as follows.

    
    

41. Temperatures were measured at 6:40 p.m. on June 15, 1998, and bedrooms were found to be between 88 degrees and 92 degrees Fahrenheit. Agency standards provide that residents' rooms may not exceed 90 degrees Fahrenheit. Two bedrooms were missing ceiling tiles and had damaged screens. The air conditioner compressor was non-operational. Ms. Watkins advised Mr. Glover that the facility's air conditioning had been off since June 11, 1996, and that she was having difficulty getting a repairman to come. In Mr. Glover's opinion, Watkins had an obligation to remove residents to a cooler environment once the temperature hit 90 degrees Fahrenheit.

42. On June 16, 1998, the second story reception room light was flickering on and off, indicating a possible short circuit. There also were at least six residents in the common area, smoking cigarettes, with no sprinkler system in place. Watkins has a "no smoking" policy, which clearly was not being enforced by its staff. Mr. Glover was particularly concerned about the electrical system.

43. On July 6, 1998, the Agency conducted a second follow-up to its June 15-16, 1998, complaint investigation. In the course of that survey, Mr. Glover observed that 50 percent of the bathrooms in the facility needed cleaning

    between the hours of 9:00 and 10:30 a.m.; a rear bathroom located in the single-story building had no hot water accessible to the residents; one bathroom commode was found to be non-functioning at 9:30 a.m.; hot water in the bathroom located on the first floor of the two-story building recorded a water temperature of 80 degrees Fahrenheit; and approximately twenty-five percent of the resident bedrooms had a musty odor. These combined defects were validly assigned a repeat Tag A705, Class III deficiency.

44. On July 6, 1998, and referring back to the May 4, 1998, survey, the team found that the east bathroom light remained inoperable; the second floor bedroom still did not have a light bulb cover for the overhead fan light; and a second floor bedroom still had no window covering. These deficiencies were also validly classified as a repeat Tag A705 Class III deficiency.

45. On October 8-9, 1998, when four surveyors conducted the biennial/renewal survey of Watkins, the facility had a census of 34 residents, 25 of whom were limited mental health residents. Under Tag A006, the Agency cited this as a Class III, absence of license deficiency. However, due to the confusion regarding the status of Watkins' limited mental health resident ALF license application, this citation is found to be without validity.

46. In October 1998, under Tag A100, the Agency cited Watkins with a Class III deficiency for not having its fiscal records on the premises. However, since it was shown that the fiscal records could have been made available at the time of the

    survey from another location, I find that this citation also lacks validity.

47. In October 1998, under Tag A203, Watkins was cited with a Class III deficiency for failure to maintain adequate written admission and discharge records. This deficiency was substantiated through Nurse Huff's observations, interviews, and testimony. However, this information was made available and conformed in the course of the survey, and therefore should not count against Watkins in this proceeding.

48. In October 1998, under Tag A206, surveyors cited Watkins for having a total of 28 facility incident reports between January 1, 1998 and September 15, 1998, without having documented any prevention or intervention measures to prevent reoccurrences. In fact, 16 out of the 28 reports constituted reoccurrences. All of this information was transcribed from facility records. Therefore, I find this deficiency cited as a Tag A206, Class III deficiency to be accurate and proven.

49. In October 1998, under Tag A208, Watkins was cited for failure to develop a management plan approved by the

    Office of Emergency Management for Evacuations and Disasters. At formal hearing, however, Watkins demonstrated through Alternative Approaches to Life Safety Worksheets and Fire Drill Reports that it had consistently held regular fire drills. Although regular fire drills do not satisfy all parts of the required standard, they somewhat mitigate the situation, so that a Class III citation would not be in order.

50. In October 1998, under Tag A213, Nurse Huff noted that Watkins' personnel records for its staff were inadequate and not current. Two staff members, among the facility's eight employees on that date had no personnel files at all, and six out of the eight staff members did not have various types of required training documented in their personnel files. One staff member had previously been diagnosed with tuberculosis, and no negative test update was available in her personnel file.

51. At hearing, Watkins produced all missing personnel records, including tuberculosis, HIV/AIDS training, training in self-administration of medicines, First Aid/CPR certifications, and ALF training, but with very few exceptions, none of the required training or medical clearances were obtained by staff members prior to the October 1998 biennial survey. Most such records were obtained by the employees after the October 1998 survey. Some were even

    earned after the October 1998 survey.

    
    

52. Watkins asserts that securing these certifications within the 60 days' correction period provided for on the survey form was sufficient compliance with State standards so as to preclude using this deficiency against Watkins in this proceeding. I find otherwise. Not only was Watkins unable to demonstrate record compliance on the date of the survey, but many of its staff were uncertified in important categories on the date of survey, thus exposing residents to inferior care and safety up to the date those staff members finally became certified.

53. Assigning a Tag A213, Class III to this deficiency was appropriate and valid.

54. Under Tags A301 (rated Class III), A302 (rated Class III), and A305 (rated Class III), Ana Lopez-Edwards observed and described deficiencies concerning residents' admission height and weight recordation, contracts not signed by residents upon entry into the facility, and absence of required demographic data, respectively. Only the A301

    deficiency, failure to record initial heights and weights in a reasonably

    accessible manner were proven to present even a potential or indirect threat to residents, which defines a Class III offense. The other flaws were paperwork problems, worthy of a

    Class IV citation at the worst.

    
    

55. In October 1998, under Tags A401 and A404, the Agency cited Watkins for two Class III deficiencies arising out of the failure to have six out of eight resident health assessments performed and on file within the time frame established by statute and rule. This citation appears to be a duplicate citation, and at hearing, mitigation was demonstrated due to the refusal of health care professionals to perform any health assessments until such time as a resident qualifies for Medicare. At worst, this citation should constitute a single Class III violation.

56. In October 1998, under Tag A406, the Agency cited Watkins with a Class III deficiency in that out of a sample of eight residents, there was no documentation on those residents' capacity to "self preserve." However, at hearing, Petitioner demonstrated through Alternative Approaches to Life Safety Worksheets and Fire Drill Reports, a consistent history of regular fire drills and recording of residents' ability to evacuate timely. The issue then became whether Watkins' failure to maintain this information in an accessible place clearly related to each respective patient so that it could be effectively used in case of emergency should be cited as a Class

    III deficiency. I view this as a Class IV or "paperwork"

    offense at worst.

    
    

57. Although the Agency cited Watkins in October 1998, under Tag A409, for two inappropriate resident placements, it was demonstrated at hearing that there was only one inappropriate placement and that was a paperwork error corrected immediately by the physician who had made it. Therefore, this citation was invalid.

58. The minimum staff hours for the resident census in October 1998, were 288 hours per week. The actual hours staff worked in that week was 279. Surveyors found that Watkins was under-staffed by nine hours for the week. Watkins knew from long experience that its necessary FTE hours were 288. Surveyors validly cited this as a repeat deficiency under Tag A507, Class II, Staffing Safeguards. Considering the content, weight, and credibility of Watkins' several witnesses against the Agency's witnesses' testimony and its surveyors' contemporaneous request for, and the absence of, actual timesheets on the date of survey, I find that this repeat deficiency was fully proven.

59. In October 1998, under Tag A511, Watkins was cited with a Class II deficiency, based on staff interviews and a record review, for frequently operating without any staff on duty who are certified in First Aid, including CPR. I find this survey

    citation to be valid for the reasons given in Findings of Fact 50-53 and 58, above.

60. In October 1998, under Tag A512, a Class III deficiency was cited, the core of which was that various staff members, particularly food staff personnel, did not have documentation of freedom from tuberculosis on an annual basis on file with the facility administrator on the date of the survey. At hearing, some staff were able to demonstrate prior tuberculosis screenings, while others were not. I find this survey citation to be valid for the same reasons given in Findings of Fact 50-53, above.

61. In October 1998, under Tag A513, Watkins was cited for a Class II deficiency due to its failure to appoint in writing a staff member trained in First Aid and CPR to act in the absence of the administrator. This citation was made upon direct observations by qualified surveyors, who saw an undated appointment for a person without CPR certification documentation. At hearing, Watkins was able to demonstrate that Etta Brinson had been timely appointed, in writing, but had been certified in CPR on November 13, 1998, after the survey. Although there was some evidence that certification is good for three years, it was not sufficient to show that Ms. Brinson's November 13, 1998, certification renewed one from 1995. I find this citation to be valid for the same

    reasons given in Findings of Fact 50-53, above.

    
    

62. On the same date, Watkins was cited under Tag A804, Class III, for failure to maintain nutrition and dietary standards and under Tag A1024, Physical Plant Standards, relating to fire safety reports within the last year.

    However, neither of these tags was proven. Insufficient evidence with regard to the absence of fire safety reports was presented by the Agency, and Watkins affirmatively demonstrated the existence of dietary menus and food substitution lists which had been prepared by a registered dietitian and were available within the facility on the date of survey.

63. In October 1998, under Tag A901, upon surveyors' observations, Watkins was sited for a Class III deficiency based on peeling wallpaper in the dining room; missing ceiling tiles exposing the building's superstructure in two locations; unclean dining room chairs; and flies and spiders present elsewhere.

    Ms. Watkins confirmed that the ceiling tiles are light and that one had blown off the morning of October 9, 1999, and that she had been unable to replace it prior to the survey. This citation was adequately proven.

64. In October 1998, under Tag A902, Watkins was validly cited for a Class III deficiency based on direct testimony of

    mildew on the main icemaker; 20 percent of the chests of drawers in the resident bedrooms missing handles; an expired health department sanitation certificate; and a cabinet in the dining room missing a door.

65. In October 1998, Watkins also was cited for four Class III deficiencies under Tags A1016 for 15 percent of its water faucets not being labeled for hot and cold water; under Tag A1018 for an insufficient quantity of non-slip surface in the tubs and showers; under Tag A1021 for absence of a written infection control policy; and under Tag A1022 for using torn and threadbare linens. However, upon considering the evidence as a whole, I find that the criteria applied by the surveyors to these quantities and samples was so subjective as to have not proven any of these violations.

66. Also, insufficient direct evidence was presented to prove-up a citation for Tag A1024 concerning fire inspection deficiency as a Class III deficiency in October 1998.

67. In October 1998, Medical Standards Tags A600, A605, A606, and A610 were cited against Watkins for the following reasons established by observation.

68. The A600 Tag was assigned because six out of eight sampled resident records offered by the facility did not have documentation of the method of management of medication administration. Staff was interviewed and was unable to

    provide further information regarding the appropriateness of the manner of medication, supervision, and assistance as required by State standards. A Class III deficiency was validly assigned.

69. Also, in October 1998, surveyor Linda Huff, who was accepted as an expert on nursing, cited Watkins for multiple problems in the administration of medication. Watkins' medication administration record (MAR) or medicine log which Nurse Huff reviewed on that date, did not match the prescription bottle labels from which patient medications were being dispensed by facility staff. While she was not able to opine whether the bottle labels or the MAR were correct, Nurse Huff believed that the very fact that the prescription labels and the MAR were not identical exposed residents to dangerous drug mix-ups, dangerous drug interactions, and incorrect over- and-under medication by facility staff, who have only limited knowledge of medicine.

70. On October 9, 1998, Nurse Huff had found, in Watkins' dispensary, a bottle labeled for Resident P.H. as Loperamide, two milligrams up to four times a day as necessary for diarrhea. However, this drug was not reflected in the MAR which Nurse Huff reviewed that day.

71. Etta Brinson regularly assisted with medications at Watkins. She testified at hearing and identified

    Petitioner's Exhibit No. 4 as Watkins' MAR or medical log for October 1998. Ms. Brinson admitted that P.H. had been prescribed Loperamide and that she had not noted that drug on Petitioner's Exhibit No 4 because the drug had been prescribed "as needed." Nurse Huff considered this a safety issue.

72. Nurse Huff had found a prescription bottle for Thorazine, made out to Resident W.C., during the course of the October 1998 survey. However, on the day of the survey, this prescription was not recorded in the MAR provided her by Watkins. On Exhibit P-4, identified by Ms. Brinson at hearing as Watkins' MAR, Chlorpromazine was indicated for

    W.C. Ms. Brinson admitted that she kept two different MARs for Resident W.C. Ms. Brinson stated that she kept one MAR in a separate folder, which she had not shown to Nurse Huff in October 1998. Ms. Brinson testified that she had made a second MAR for Resident W.C. and kept it in a separate folder because he had a prescription "as needed" for hiccups. Ms. Brinson understood that the drug Chlorpromazine was a medication for hiccups. Nurse Huff stated that "Thorazine" and "Chlorpromazine" are different names for the same drug and that it is a serious problem to refer to the same drug by two different names because only a doctor, pharmacist, or registered nurse would know that they are the same drug.

73. In October 1998, Nurse Huff had found that Resident

    
    

    G.M. had in Watkins' dispensary a prescription bottle marked "Clozaril, 25 milligrams, take one i.p.o. twice daily." Exhibit P-4 and the MAR which Nurse Huff saw in October 1998, showed that Watkins' staff were giving Clozaril, 100 milligrams, one tablet twice-a-day and two tablets at bed for a total of 300 milligrams. It also stated "Clozaril 25 milligrams, take two tablets twice-a-day," which is another

    100 milligrams. There was no bottle of Clozaril, 100 milligrams, in Watkins' dispensary in October 1998. Nurse Huff testified that Clozaril is a central nervous system anti- psychotic drug which must be administered in slowly increased doses over time. The MAR indicated that G.M. was receiving ten times the dose of Clozaril as was indicated on his prescription bottle. Nurse Huff found this to be a health hazard. Ms. Brinson admitted that she would be concerned if the prescription bottle for G.M.'s Clozaril did not match the MAR.

74. In October 1998, Nurse Huff also considered the

    
    

    situation of Resident W.I. She found in Watkins' dispensary a prescription bottle for W.I. labeled for Glucophage, "500 milligrams, two tablets in the morning and one tablet at night." She also reviewed an Insulin vial labeled for W.I. for Insulin to be administered in the morning and at night.

    The MAR she reviewed in October 1998, showed W.I. receiving Glucophage only in the morning and Insulin in the morning and at night. Generally speaking, when Glucophage is prescribed, it is prescribed instead of Insulin. Nurse Huff interviewed staff to see if there were a problem and even interviewed W.I. because the administration of both Insulin and Glucophage together could have such an impact on W.I.'s health. During these survey interviews, Nurse Huff determined that W.I. was on a 1500-calorie diabetic diet and took Insulin and Glucophage only in the mornings. However, at hearing, Exhibit P-4 showed W.I. getting one 500 milligram Glucophage tablet morning and night and no Insulin at all. Ms. Brinson testified that W.I. was not administered Insulin in October 1998. Ms. Brinson also stated that Watkins had a policy of taking discontinued prescription medications to the pharmacy for disposal. If W.I. was not being administered Insulin as of October 1998, Watkins' policy of disposing of discontinued medications clearly had not been followed because W.I.'s Insulin vial was still there. Moreover, based on any construction of the discrepancies in the records, Watkins did not meet medical standards.

75. With regard to the preceding medical record

    
    

    problems, related in Findings of Fact 68 through 74, the Agency recorded a Class II deficiency under Tag A605,

    Medication Standards, on the October 1998 survey. Upon all the evidence, this deficiency assignment was proven valid.

76. In October 1998, under Tag A606, Watkins was cited with a Class II deficiency for, among other things, keeping improperly labeled samples of prescription medicines. Evidence showed that certain samples were being dispensed to a resident without that resident's name and the dosage being

    placed on the sample box as required by law. Therefore, a Tag A606, Class II deficiency was proven.

77. Tag A610, citing a Class III deficiency for improper labeling or absence of labeling of over-the-counter drugs was insufficiently proven by direct evidence.

78. Considerable time was expended in the course of the hearing directed to issues of a pervading urine smell, the existence or absence of regularly-scheduled recreational activities for the residents, and the general cleanliness of Watkins' facility, particularly the stove hood, which problems were cited on several surveys. From the credible evidence as a whole, I find that despite constant cleaning by at least one Watkins' staff member, one or more parts of the facility contained pervasive urine odors at all times. It was also established that although Watkins addressed stove hood cleanliness through an independent contractor cleaning it

    every six months, the stove hood frequently was less than sanitary.

79. However, due to the methods of presentation of evidence herein and the necessity of categorizing multiple defective components by tags and classes, Finding of Fact 78 does not comprise a single tag or class of deficiency so as to establish "repeat" deficiencies, except where specifically noted in other Findings of Fact, above.

80. The Agency's repeated citations of Watkins for failure to provide structured recreational activities to its residents was refuted by direct evidence. Satisfactory recreational activities were provided by Watkins' contract with Apalachee Mental Health for at least four hours every week day within Watkins' facility and for optional field trips of approximately four hours, one day per week. Watkins also affirmatively established through testimony and its Policy and Procedure Manual that it had an infection control policy with regard to urine, feces, and laundry in place, contrary to citations by the Agency. The Agency did not establish that the infection control policy had to be in writing.

81. Watkins also affirmatively established that it regularly employed a handyman to repair damage caused by residents, and that on at least one occasion when Watkins was cited for having a hole in the drywall, on-going repairs were

actually in progress on a bathroom. This situation, however, does not account for all of the times that disrepair of the facility was cited. Moreover, there being some discrepancy between the testimony of Peggy Watkins and Mr. Clark, the handyman, as to when this particular bathroom repair occurred, this bathroom repair "in progress" cannot form a basis to refute all citations for damage to the walls of the facility.

1. Due to the November 17, 1998, date of the original intent to deny the license renewal application, the Agency conducted no follow-up survey after the biennial survey of October 1998.

2. An Ombudsmen Report done within 32 days of the Agency's October 1998 survey, found that Watkins "appeared satisfactory" under its criteria, which are not the same as the State's criteria.

3. Representatives of the County Fire Department and County Health Department testified that they believed that Watkins had the best interest of its residents in mind and did the best job it could of providing a reasonably satisfactory facility.

4. Laura Harris, who is employed with Apalachee Center for Human Services as its Program Supervisor for the Jefferson County Outpatient Program, and who trains its surveyors, testified as an expert witness in the areas of staff training,

administration training, and quality of care. In her opinion, the overall quality of care at Watkins ranks eight and one- half on a scale of one-to-ten, and the facility itself ranks seven on a scale of one-to-ten.

CONCLUSIONS OF LAW

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

2. The July 12, 1999, Order herein, established that it was the Agency's duty to go forward to establish by direct evidence that the deficiencies alleged in all surveys and inspections had actually occurred. That standard has been applied.

3. That Order also determined the Agency's burden of proof of the deficiencies to be by "clear and convincing evidence" and that the burden of persuasion was ultimately upon the license applicant.

4. Upon further review of Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996), the undersigned has determined that the Agency's proper burden of proof for purposes of a license renewal application is only by a "preponderance of the evidence." In this case, however, the lesser burden of proof makes no difference, because no

   Findings of Fact of deficiency have been found herein except upon direct proof by clear and convincing evidence, the higher standard of proof.

5. Section 400.414, Florida Statutes, provides, in pertinent part:

   1. The agency may deny, revoke, or suspend any license issued under this part, or impose an administrative fine in the manner provided in chapter 120 for any of the following actions by an assisted living facility, any person subject to level 2 background screening under s. 400.4174, or any facility employee:

      
      

      (e) One or more class I, three or more class II or five or more repeated or recurring identical or similar class III violations that are similar or identical to violations which were identified by the agency within the last 2 years. (Emphasis added)

      
      

6. Section 400.419, Florida Statutes, provides in pertinent part as follows:

   1. Each violation of this part and adopted rules shall be classified according the nature of the violation and gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows:

      
      

      1. 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 an administrative

         fine in an amount not less than $500 and not to exceed $5,000 for each violation. The citation for a class II violation shall specify the time within which the violation is required to be corrected. If a class II violation is corrected within the time specified no fine may be imposed unless it is a repeated offense.

         
         

      2. 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 II violations. A class III violation is subject to an administrative fine of not less than $100 and not exceed $1,000 for each violation.

      A citation for a class III violation shall

      specify at the time within which the violation is required to be corrected. If a class III violation is corrected within the time specified, no fine may be imposed, unless it is a repeated offense. (Emphasis added)

      
      

7. The foregoing Findings of Fact eliminate all unproven tags and classifications. The Agency proved by clear and convincing evidence the existence of three or more Class II and five or more repeated or recurring identical or substantially similar Class III violations that are similar or identical to violations which were identified by the Agency within the biennial licensure period. Finally, the totality of the evidence demonstrated a decline in Watkins' level of compliance during the biennial licensure period.

8. Assuming arguendo, but not holding, that Watkins

   came into compliance within the correction periods allotted in the biennial survey, that achievement does not alter the Agency's authority to deny the standard ALF license renewal application. The timely achievement of compliance may preclude paying administrative fines, pursuant to Section 400.419(1), Florida Statutes, under certain circumstances, but it does not affect AHCA's authority to deny a license pursuant to Section 400.414, Florida Statutes.

9. The existence of the violations at the time they were assessed and reported in the biennial survey would not be erased by timely correction. Coming into compliance does not remove a deficiency or change the fact that residents were affected by the deficiency at the time of the survey and citation.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Petitioner's application for renewal of its standard assisted living facility standard license be denied and that the provisional assisted living facility license currently in use by Petitioner be revoked.

DONE AND ENTERED this 17th day of February, 2000, in Tallahassee, Leon County, Florida.

Hearings

Hearings

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge Division of Administrative

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative

this 17th day of February, 2000.

ENDNOTES

1/ The April 15, 1999, letter constitutes the proposed final agency action of denial of re-licensure and the notice of all reasons therefor.

2/ P-5 was merely an 1893 form, was not admitted in evidence, and therefore, was not retained by the undersigned. The other named exhibits have been sealed and transmitted with this Recommended Order.

3/ The dictionary definition of "scatalogical" should be sufficient. Additionally, there was testimony of residents stealing, eating or burning printed information that had been posted on the walls, defecating on the floor, beating holes in drywall, sticking garden hoses up their "bottoms," and stuffing foreign objects in commodes until the commodes backed up, flooded, and became nonfunctional.

COPIES FURNISHED:

Fred H. Flowers, Esquire

518 North Calhoun Street Tallahassee, Florida 32301

Mark S. Thomas, Esquire Michael O. Mathis, Esquire Madeline McGuckin, Esquire Agency for Health Care

Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Ruben J. King-Shaw, Jr., Director Agency for Health Care

Administration

Fort Knox Building 3, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Julie Gallahager, General Counsel Agency for Health Care

Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk Agency for Health Care

Administration

Fort Knox Building 3, Suite 3431

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: 99-000282

Orders for Case No: 99-000282