STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 00-0725

)

NORTHPOINTE RETIREMENT )

COMMUNITY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on March 17, 2000, by video teleconference in Pensacola and Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Building 3, Suite 3408D Tallahassee, Florida 32308

For Respondent: Mohamad Mikhchi, pro se

Owner/President

Northpointe Retirement Community 5100 Northpointe Parkway

Pensacola, Florida 32514

STATEMENT OF THE ISSUES

The issues are whether Respondent failed to maintain a record of major incidents on two occasions, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On January 3, 2000, Petitioner Agency for Health Care Administration (Petitioner) filed an Administrative Complaint. Said complaint alleged that Respondent Northpoint Retirement Community (Respondent) had failed to maintain a record of major incidents on two occasions in violation of Section 400.419(1)(c), Florida Statutes, and Rules 58A-5.0131(2)(hh) and 58A-5.024(1)(b), Florida Administrative Code. On January 24, 2000, Respondent requested a formal hearing to contest the allegations. Petitioner referred this matter to the Division of Administrative Hearings on February 14, 2000.

The parties filed a Joint Response to Initial Order on February 24, 2000. A Notice of Hearing dated March 3, 2000, scheduled the case for hearing on March 17, 2000.

During the hearing, Petitioner presented the testimony of two witnesses and offered one composite exhibit which was accepted into evidence. Respondent presented the testimony of one witness. Respondent did not offer any exhibits.

A Transcript of the proceeding was filed on March 29, 2000. Petitioner filed a Proposed Recommended Order on April 11, 2000. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner regulates assisted living facilities (ALFs) pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code.

2. Respondent is licensed as an ALF pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code.

3. On or about October 4, 1999, Petitioner received a telephone call alleging that Respondent was operating contrary to Rule 58A-5, Florida Administrative Code, in several respects. In response to the telephone complaint, Petitioner performed an unannounced inspection/survey at Respondent's facility on October 6, 1999.

4. Petitioner performed record reviews, interviews, and observations during its October 6, 1999, inspection of Respondent's facility. The survey revealed that Respondent's business was deficient in several respects that are not relevant here. These deficiencies resulted in four citations.

5. On November 10, 1999, Petitioner completed a follow-up appraisal/complaint investigation at Respondent's facility.

   During the survey, Petitioner reviewed randomly selected medical records of eight of Respondent's clients.

6. The November 10, 1999, revisit resulted in Respondent being cited for several Class III deficiencies. The deficiencies included one citation for failing to maintain a record of a major incident involving an injury to a resident who required treatment by a health care provider.

7. Specifically, Resident No. 5 fell on October 22, 1999, and fractured a leg. She was transferred and admitted to the hospital. At the time of the November 10, 1999, inspection, Respondent could not produce documentation indicating that it had completed a major incident report. Petitioner advised Respondent that it had until November 24, 1999, to correct cited deficiencies.

8. On December 20, 1999, Petitioner conducted a revisit survey of Respondent's facility. The purpose of the inspection was to determine whether Respondent had corrected deficiencies cited during the November 10, 1999, inspection. This inspection included a review of medical records for eight randomly chosen residents.

9. The December 20, 1999, survey revealed a repeat deficiency for failing to complete a major incident report of an injury to a resident who required treatment by a health care provider. Petitioner cited Respondent for failing to complete a

   major incident report for Resident No. 7 who fell on or about August 1, 1999.

10. Resident No. 7 fell in her room but refused initially to go to the hospital. Two days later, Resident No. 7 was admitted to the hospital for observation due to her complaints of pelvic pain. She returned to Respondent's facility with a new health assessment dated August 3, 1999. The new health assessment revealed a decline in the resident's ability to perform daily living activities and changed her status from independent to requiring supervision in dressing, grooming, toileting, and transferring. Respondent did not complete a major incident report at the time of the resident's fall or upon her admission to and return from the hospital.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

12. Section 400.402(6), Florida Statutes (1999), defines an ALF as follows:

    (6) "Assisted living facility" means any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more

    adults who are not relatives of the owner or administrator.

    
    

13. A license is required to operate an ALF in this state.

    
    

    Section 400.407(1), Florida Statutes (1999). This licensure is a public trust and not an entitlement. Section 400.401(3), Florida Statutes (1999).

14. Section 400.419, Florida Statutes (1999), provides as follows, in pertinent part:

    1. Each violation of this part and adopted rules 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 on the written notice of the violation as follows:

       * * *

       (c) 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 an administrative fine of not less than $100

       and not exceeding $1,000 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 fine may be imposed, unless it is a repeated offense.

       * * *

       1. In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors:

          1. The gravity of the violation, including the probability that death or serious

             physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.

          2. Actions taken by the owner or administrator to correct violations.

          3. Any previous violations.

          4. The financial benefit to the facility of committing or continuing the violation.

          5. The licensed capacity of the facility.

       2. Each day of continuing violation after the date fixed for termination of the violation, as ordered by the agency, constitutes an additional, separate, and distinct violation.

       3. Any action taken to correct a violation shall be documented in writing by the owner or administrator of the facility and verified through followup [sic] visits by agency personnel. The agency may impose a fine and, in the case of an owner-operated facility, revoke or deny a facility's license when a facility administrator fraudulently misrepresents action taken to correct a violation.

       4. For fines that are upheld following administrative or judicial review, the violator shall pay the fine, plus interest at the rate as specified in s. 55.03, for each day beyond the date set by the agency for payment of the fine.

       
       

15. Rule 58A-5.024(1)(b), Florida Administrative Code, states as follows in relevant part:

    (b) Owners or administrators are responsible for maintaining records of major incidents as defined in Rule 58A-0131, F.A.C., containing a clear description of each accident or other incident involving dangerous behavior of a resident or a staff member with the time, place, names of individuals involved, witnesses if injuries were sustained, nature of injuries, cause of accident if known, a description of medical

    or other services provided, by whom such services were provided and any steps taken to prevent recurrence. These reports shall be made by the individuals having first hand knowledge of the incidents, including paid staff, volunteer staff, emergency and temporary staff, and student interns.

    
    

16. The definition of a major incident that is relevant here is "an injury to a resident which requires treatment by a health care provider." Rule 58A-5.0131(2)(hh)4., Florida Administrative Code.

17. In this case, Respondent failed to maintain a major incident report to document the fall of Resident No. 5 on October 2, 1999. Petitioner discovered this deficiency during the November 10, 1999, investigation and cited Respondent for operating in violation of Rules 58A-5.0131 and 58A-5.024, Florida Administrative Code.

18. During the revisit survey on December 20, 1999, Petitioner discovered that Respondent failed to maintain a major incident report to document the fall of Resident No. 7 on

    August 1, 1999. This deficiency involved a repeated citation for violation of Rules 58A-5.0131 and 58A-5.024, Florida Administrative Code.

19. Respondent should have documented the fall of Resident No. 7 at the time of its occurrence, and having failed that requirement, could have documented the fall upon her admittance and/or return from the hospital.

20. After receiving the November 10, 1999, citation for violating Rules 58A-5.0131 and 58A-5.024, Florida Administrative Code, Respondent had an opportunity to review the medical records of its residents to ensure that it was in compliance with the rule requiring maintenance of major incident reports. If Respondent had done so, it may have discovered the new health care assessment indicating that Resident No. 7 fell on

    August 1, 1999, received medical treatment in the hospital for the resulting injury, and returned to the facility on August 3, 1999, with a need for increase supervision in daily living activities.

21. Under the circumstances of this case, Respondent could have avoided a repeat citation by searching the medical records of its residents between November 10, 1999 and December 20, 1999, creating a major incident report documenting the fall of resident no. 7, and noting the report as untimely. Respondent did not take advantage of that opportunity.

RECOMMENDATION

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

RECOMMENDED:

That Petitioner enter a final order fining Respondent $300 for repeated violations of Rules 58A-5.0131 and 58A-5.024,

Florida Administrative Code, plus interest as specified in Section 400.419(6), Florida Statutes.

DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2000.

COPIES FURNISHED:

Michael O. Mathis, Esquire Agency for Health

Care Administration 2727 Mahan Drive Building 3, Suite 3408D

Tallahassee, Florida 32308

Mohamad Mikhchi Owner/President

Northpointe Retirement Community 5100 Northpointe Parkway

Pensacola, Florida 32514

Sam Power, Agency Clerk Agency for Health

Care Administration 2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel Agency for Health

Care Administration 2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Ruben J. King-Shaw, Director Agency for Health

Care Administration 2727 Mahan Drive

Building 3, Suite 3116

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: 00-000725

Orders for Case No: 00-000725