STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 00-2299

)

ERMA FORBES, d/b/a )

THE ISLANDER, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Orlando, Florida, on September 6, 2000.

APPEARANCES

For Petitioner: Michael O. Mathis

Senior Attorney

Office of General Counsel

Agency for Health Care Administration 2727 Mahon Drive, Building 3, Suite 3408-D Tallahassee, Florida 32308

For Respondent: Larry H. Colleton

Larry H. Colleton, P.A. 2300 East Concord Street Orlando, Florida 32803

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of failing to complete background screening of all employees, in violation of Sections 400.419(1)(c) and 400.4174(2), Florida Statutes, and failing to record the administration of medications to three

residents, in violation of Sections 400.419(1)(c), Florida Statutes, and Rule 58A-5.0182(6)(b), Florida Administrative Code.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 28, 2000, Petitioner alleged that Respondent is licensed to operate an assisted living facility at 2494 Marsh Road, DeLand, Florida. The Administrative Complaint alleges that Respondent was guilty of failing to correct two Class III deficiencies, which were first cited during an inspection on February 9, 2000, by a follow-up inspection on March 30, 2000.

The first alleged deficiency is Tag A214 for failing to complete background screening on all employees hired on or after October 1, 1998, in violation of Sections 400.419(1)(c) and 400.4174(2), Florida Statutes. The Administrative Complaint seeks an administrative fine of $300 for this alleged violation.

The second alleged deficiency is Tag A605 for failing to record the administration of medication for three residents, in violation of Section 400.419(1)(c), Florida Statutes, and Rule 58A-5.0182(6)(b), Florida Administrative Code. The Administrative Complaint seeks an administrative fine of $300 for this alleged violation.

Respondent requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence nine exhibits: Petitioner Exhibits 1-6 and 8-11. Respondent called one witness and offered into evidence three

exhibits. All exhibits were admitted in their entirety except that the Administrative Law Judge struck the portions of Petitioner Exhibit 1 not pertaining to Tags A214 and A605.

FINDINGS OF FACT

1. Effective June 13, 1998, Petitioner issued a standard license to Respondent to operate an assisted living facility to be known as The Islander. The license expired June 12, 2000. However, Respondent has maintained a license for the facility through the date of the final hearing.

2. On February 9, 2000, Petitioner conducted a biennial inspection of The Islander. The inspection report reveals two relevant deficiencies, which are identified as "Tags."

3. As cited in the inspection report, Tag A214 states that Respondent failed to complete background screening on all employees hired on or after October 1, 1998. Tag A214 alleges that Respondent hired one employee on September 10, 1999, but did not have evidence that this employee had completed background screening, even though the employee was on duty on the date of the inspection.

4. As cited in the inspection report, Tag A605 states that Respondent failed to record the observed dosage of medication that residents administer to themselves. As relevant to the present case, Tag A605 alleges that the medication record documentation did not confirm the administration by Resident #3 of Artane, Dilantin, and Mellaril for specified periods of time

   or the administration by Resident #4 of Synthroid or Respiridol for specified periods of time.

5. The February 9 inspection report gave Respondent until March 10, 2000, to correct the deficiency cited as Tag A204 and required the immediate correction of the deficiencies cited as Tags A605. The inspection report classified both of these tags as Class III deficiencies.

6. On March 30, 2000, Petitioner conducted a follow-up inspection of The Islander. The purpose of this inspection was to determine if Respondent had timely corrected the deficiencies cited in the February 9 inspection report.

7. The March 30 inspection report re-cites Tag A214. The inspection report states that, although the person previously cited as lacking documentation of background screening was no longer employed by Respondent, the manager's personnel file revealed that the manager lacked the required background screening. The inspection report gave Respondent until April 30, 2000, to correct this alleged deficiency.

8. The manager to whom Tag A214 refers is Respondent's 22- year-old daughter. She has been an employee of Respondent at The Islander continuously since prior to October 1, 1998.

9. The March 30 inspection report re-cites Tag A605. The inspection report states that, for three residents, Respondent failed to record the administration of medications at the time of administration.

10. Specifically, the March 30 inspection report alleges that the last recorded administration by Resident #2 of Haloperidol, which was prescribed to be taken three times daily, was 5:00 PM on March 29, 2000; the last recorded administration by Resident #3 of Dilantin EX and Mellaril, both of which were prescribed to be taken twice daily, was at 5:00 PM on March 29, 2000; and the last recorded administration by Resident #4 of Respiridol, which was prescribed to be taken three times daily, was 5:00 PM on March 28, 2000.

11. The administration times for the above-described medications prescribed three times daily are 8:00 AM, 1:00 PM, and 5:00 PM. The administration times for the above-described medications prescribed twice daily are 9:00 AM and 5:00 PM. The reinspection on March 30 took place between 10:10 AM and

    11:45 AM.

    
    

12. Thus, if the medications had been administered as prescribed, the medical observation records were deficient as follows: Resident #2's records were missing the 8:00 AM administration on March 30; Resident #3's records were missing the 9:00 AM administrations on March 30; and Resident #4's records were missing the three administrations on March 29 and the 8:00 AM administration on March 30.

13. Except for the missing documentation for Resident #4 on March 29, the failures were of documentation, rather than of the actual administration of the prescribed medications. For

    Resident #4 on March 29, the omission from the records of any administration was because Resident #4 had run out of medication. Although Respondent had requested a renewal of the prescription one week in advance of its expiration, as is Respondent's customary practice, there had been some delay at the pharmacy in resupplying the medication. However, Petitioner has not charged Respondent with any failure in re-ordering medication. Thus, the March 29 record is accurate as for Resident #4.

14. The accuracy of the medication observation record for Resident #4 on March 29 underscores Respondent's commitment to accurate recordkeeping.

15. On the morning of March 30, the three residents in question received their medications, but the administrations were not promptly recorded in the medication observation records, despite Respondent's commitment to accurate recordkeeping. Unfortunately, normal routine at this six-resident assisted living facility was disrupted on the morning of March 30 when one resident woke up with diarrhea.

16. The employee in charge of observing the administration of medications was able to observe each resident take his or her medication, but lacked time to record the administrations immediately. Instead, the employee had to clean the floor, give the ill resident a bath, and change the clothes of the ill resident. Making the morning more chaotic was the requirement that the employee ensure that the residents had their breakfast

    prior to taking their medications, as the medications were not to be taken on an empty stomach.

17. Unfortunately, before the employee was able to record the administrations after tending to the more pressing concerns, Petitioner's inspector happened to arrive at The Islander and find the omissions from the medication observation records. However, under the unusual circumstances of the morning of March 30, the failure of the employee to record the administrations at 8:00 and 9:00 AM on March 30 did not constitute a failure to record administrations immediately.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

19. Section 400.4174(2) provides, in part: "The owner or administrator of an assisted living facility must conduct level 1 background screening, as set forth in chapter 435, on all employees hired on or after October 1, 1998, who perform personal services as defined in s. 400.402(17)."

20. Rule 58A-5.0185(5)(b) (not, as cited, Rule 58A-5.0182) provides:

For residents who receive assistance with self-administration or medication administration, the facility shall maintain a daily up-to-date, medication observation record (MOR) for each resident. A MOR must include the name of the resident and any

known allergies the resident may have; the name of the resident's health care provider, the health care provider's telephone number; the name of each medication prescribed, its strength, and directions for use; and a chart for recording each time the medication is taken, any missed dosages, refusals to take medication as prescribed, or medication errors. The MOR must be immediately updated each time the medication is offered or administered.

1. Section 400.419(1)(c) defines Class III violations as follows:

   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.

2. Petitioner has failed to prove either of the alleged deficiencies.

3. Due to the finding that Petitioner has failed to prove either of the alleged deficiencies, it is unnecessary to consider any issues that may arise out of the conflict between the minimum fine, as set by statute, of $100 and the minimum fine, as set by Petitioner's nonrule policy, as described by Health Facility Evaluators Supervisor Robert Dickson, of $300.

RECOMMENDATION

It is

RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 4th day of October, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 4th day of October, 2000.

COPIES FURNISHED:

Sam Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel Agency for Health Care administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

Michael O. Mathis Senior Attorney

Office of General Counsel

Agency for Health Care Administration 2727 Mahan Drive,

Fort Knox Building 3, Suite 3408-D Tallahassee, Florida 32308

Larry H. Colleton

Larry H. Colleton, P.A. 2300 East Concord Street Orlando, Florida 32803

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-002299

Orders for Case No: 00-002299