STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OAKLAND MANOR,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
)
)
)
)
) Case No. 01-4214
)
)
)
)
)
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case in Tampa, Florida, on March 13-15 and April 2, 2002, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: A. S. Weekley, Jr., M.D., Esquire
Holland and Knight, LLP Post Office Box 1288 Tampa, Florida 33601-1288
For Respondent: Eileen O'Hara Garcia, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701
STATEMENT OF THE ISSUE
The issue in this case is whether the Agency for Health Care Administration should deny Petitioner's application for
renewal of its standard assisted living facility license with a limited mental health component.
PRELIMINARY STATEMENT
By letter dated September 27, 2001, the Agency for Health Care Administration ("Agency") advised Mrs. Lisa McCarthy ("Administrator/Owner") of its intent to deny the application for renewal of Oakland Manor's standard Assisted Living Facility License. The Agency alleged that the facility failed to meet minimum licensing standards. Specifically, the Agency alleged this determination was based on the following: four Class III deficiencies cited during the December 14, 2000, appraisal visit; seven deficiencies, cited during the March 12, 2001, appraisal visit, including three uncorrected deficiencies from the December 14, 2000, appraisal visit; a new Class III deficiency cited during the June 12, 2001, Moratorium monitoring visit; a new Class III deficiency cited during a complaint investigation conducted on June 13, 2001; ten Class III deficiencies cited during the facility's biennial license renewal survey conducted on June 28, 2001; and a repeat Class II deficiency cited during the September 18, 2001, appraisal monitoring visit.
Oakland Manor, through its administrator, challenged the Agency's proposed action and requested a formal hearing. On October 26, 2001, the Agency referred the matter to the Division
of Administrative Hearings for assignment of an Administrative Law Judge to conduct the final hearing.
At hearing, the Agency presented the testimony of Augustine Valdez, formerly a fire protective specialist with the Agency; Nicholas Cox, coordinator of the Attorney General's Elder Protection Team; Patrick Hannah, senior investigator with the Attorney General's Medicaid Fraud Unit; Susan Parrish, an expert in state regulation and surveying of assisted living facilities; Alice Adler, the Agency operations management consultant manager; Bruce McClendon, an Agency surveyor; Paul A. Winters, an Agency health facility evaluator; and Alberta Granger, a manager for the Agency's Assisted Living Facilities Program.
The Agency's exhibits 1, 1-A, 2, 2-A, 3-A through 3-H, 4, 5, 6, and 7 were admitted into evidence.
Petitioner presented the testimony of Rory McCarthy, an owner/operator of Oakland Manor; John Gosselin, a former resident of Oakland Manor; Lisa McCarthy, owner and administrator of Oakland Manor; the father of P. L. C., a resident at Oakland Manor; Wendy G. Wade, a former employee of Oakland Manor; and Hardrick Gay, an environmental health inspector. Oakland Manor's Exhibits A-1, A-2a through A-2z, A-2aa through A-2dd, D through F, K, N through T, V, W, and AA through JJ were admitted into evidence.
At the conclusion of the hearing, the time for filing proposed recommended orders was set for ten days after the transcript was filed. The five-volume Transcript of the proceeding was filed on May 3, 2002. Upon the request of the Agency, the time for filing proposed recommended orders was extended to June 3, 2002. Both parties timely filed proposed recommended orders under the extended time period.
FINDINGS OF FACT
The Agency is responsible for licensing and regulating assisted living facilities in Florida pursuant to Part III, Chapter 400, Florida Statutes (2001). Pursuant to that responsibility, the Agency is authorized to conduct surveys and follow-up surveys, to make visits and inspections of assisted living facilities, and to investigate complaints.
Oakland Manor is an assisted living facility located at 2812 North Nebraska Avenue, in Tampa, Florida, licensed and regulated pursuant to Part III, Chapter 400, Florida Statutes (2001), and Rule Chapter 58A-5, Florida Administrative Code. The facility's license has a limited mental health component. Rory and Lisa McCarthy have owned and operated Oakland Manor since about December 1999. Mrs. McCarthy is the administrator of the facility.
Between the dates of December 14, 2000 and
September 18, 2001, the Agency conducted three appraisal visits, a moratorium monitoring visit, a complaint investigation, and a biennial license renewal survey of the facility. The Agency noted the results of these inspections on a form referred to as Agency Form 3020-0001 ("Form 3020").
The Form 3020 is the document used to charge assisted living facilities with deficiencies that violate applicable law and rules. The Form 3020 identifies each alleged deficiency by reference to a tag number. Each tag of the Form 3020 includes a narrative description of the allegations against the facility and cites the relevant rule or law violated by the alleged deficiency.
In order to protect the privacy of the residents, the Form 3020 and this recommended order refer to the subject resident by a number rather than by a name.
There are 24 tags at issue in the proceeding, some having been cited as repeat or uncorrected deficiencies. An uncorrected deficiency is one that was previously cited and has not been corrected by the time designated or by the time of the Agency's follow-up visit. A repeat deficiency is one that the facility has been cited for and that has been corrected, but after the correction, the deficiency occurs again.
Section 400.419, Florida Statutes, requires that the Agency assign a class rating to the deficiencies alleged in its Form 3020. The classification rating assigned to a deficiency is based on the nature of the violation and the gravity of its probable effect on facility residents.
On December 14, 2000, the Agency conducted an appraisal visit of Oakland Manor. As a result of this visit, the Agency cited the facility with four Class III deficiencies, including a Tag A519 deficiency for failure to maintain minimum staffing to meet the residents’ needs, a Tag A1001 for failure to provide a safe environment, Tag A1024 for failure to provide beds for two residents, and Tag A1033 for failure to provide each bathroom with a door in good working order to ensure privacy for residents.
The Agency conducted a second appraisal visit of Oakland Manor on March 12, 2001, and cited the facility for seven deficiencies, including three uncorrected deficiencies from the December 14, 2000, visit.
According to the Form 3020 for the March 12, 2001, appraisal visit, the uncorrected deficiencies were cited as Tag A519, for failure to provide minimum staffing; Tag A1001, failure to provide a safe environment; and Tag A1024, for failure to provide clean, comfortable mattresses. In addition to the alleged uncorrected deficiencies, the Agency cited the
facility for four new deficiencies under Tag A210, Tag A212, Tag A523, and Tag A1004. Tags A519, A523, and A1001 were rated as Class II deficiencies. The other tags cited were rated as Class III deficiencies.
Because the Agency found new violations of Tags A519, A1001, and A1024, and deficiencies under those same tag numbers were identified in December 2000, the Agency deemed those violations or deficiencies to be uncorrected deficiencies.
On March 13, 2001, the day after the second appraisal visit, the Agency entered an Order of Immediate Moratorium ("Order"). The Order was based on the alleged violations cited from the March 2001 appraisal visit and stated that the conditions at the facility presented a significant threat to the health, safety or welfare of the residents. Under the Order, Oakland Manor was prohibited from admitting any residents.
On June 13, 2001, the Agency conducted a complaint investigation based on a complaint that the Agency had received. The Form 3020 summarizing the Agency's findings during the
June 13, 2001, investigation did not cite Oakland Manor for any continuing violations, but alleged that there was a violation of Tag A1114, relating to staff records standards. The A1114 deficiency was assigned a Class II violation.
The Agency conducted a biennial license and limited mental health renewal survey on June 28, 2001. This survey is required for continued licensure.
As a result of the biennial survey, the Agency cited Oakland Manor with the following ten deficiencies, none of which had been previously cited: Tags L200, L201, L202, L203, L400, A525, A634, A1005, A1101, and A1103. All of these tags were assigned Class III ratings.
On September 18, 2001, the Agency conducted an appraisal/monitoring visit. As a result of this visit, the Agency cited Oakland Manor with two violations, Tag A519, related to staffing standards, and Tag A1004, related to physical plant standards, both of which were assigned Class III ratings. Because Oakland Manor was cited for deficiencies under Tag 519 during the March 12, 2001, visit, the Agency noted that the deficiency of Tag A519 was a repeat violation.
The Form 3020 for each survey or visit indicated when each alleged violation should be corrected. In some cases, a specific date was given. In other instances, the correction was to be implemented "immediately."
DECEMBER 14, 2000, APPRAISAL TAG A519
Tag A519 requires a facility to maintain the minimum staffing hours set forth in Rule 58A-5.019(4), Florida
Administrative Code. Because Oakland Manor had a resident census of 26 in November 2000 and through the first two weeks of December 2000, the facility was required to have minimum staff hours of 294 per week.
Based on a review of the facility's staffing schedule for the time in question, the Agency surveyor properly concluded that the facility did not maintain the required minimum staff hours of 294 in November 2000 and the first two weeks of December 2000. As a result of this finding, the Agency properly cited Oakland Manor with a Tag A519, Class III deficiency.
DECEMBER 14, 2000, APPRAISAL: TAG A1001
The second violation for which Oakland Manor was cited was a Tag A1001 deficiency, which requires that assisted living facilities "be located, designed, equipped, and maintained to promote a residential, non-medical environment, and provide for the safe care and supervision of all residents." See Rule 58A- 5.023(1)(a), Florida Administrative Code. The violation was rated as a Class III deficiency.
The allegation that Oakland Manor failed to meet the requirements of Tag A1001 is based on the following observations noted on the Form 3020: there were electrical wires and light fixtures hanging loose from the ceiling in the hallway on the first floor; the residents' room walls were dirty, the rooms had a foul odor and the smell of urine; the floors of the facility
were dirty; residents were observed smoking in their beds; the toilet tank lid was missing; and discharge water from the washing machine in the breezeway was running over the walkway in the patio area.
At the time of the survey, one resident's room had dirty walls and also had a foul odor. The floors of the facility were dirty and had food particles on them, and the facility had an "unpleasant odor." Also, two residents were observed smoking in their bedrooms, despite the facility's no smoking policy.
Contrary to the observation noted on the Form 3020, there were no light fixtures hanging loose from the ceiling, nor had that situation ever existed. At hearing, there was no evidence presented by the Agency that there were light fixtures hanging loosely from the ceiling. The electrical wires, referred to in the Form 3020, were slightly visible and coming from a 9-foot ceiling. However, there were wire nuts on the wires and, thus, the wires were not a danger to the residents.
There was water coming from the washing machine as noted by the Agency surveyor. Mr. McCarthy does not deny that allegation, but the water coming from the washing machine was "feed" water going into the machine and not "discharge" water as noted in the Form 3020. This problem was resolved the following
day when Mr. McCarthy purchased and had a new washing machine installed.
The surveyor observed one toilet that did not have a toilet tank lid. The owners do not dispute this, but the lid was not "missing" as noted on the Form 3020, but had likely been removed by one of the residents. When a resident removes the toilet tank lid, staff members routinely replace the lid. The surveyor was unaware of any regulation that requires the facility to secure the lids to prevent the residents from removing them.
DECEMBER 14, 2000, APPRAISAL: TAG A1024
The third alleged violation for which the facility was cited was Tag A1024, which refers to the physical plant standard set forth in Rule 58A-5.023(4)(e), Florida Administrative Code. That standard requires that each resident bedroom or sleeping area, where furnishings are supplied by the facility, shall at a minimum, be furnished with, among other things, a clean comfortable bed with a mattress. It is alleged that this standard was not met as evidenced by the observation that the mattress in Room No. 10 was torn, and the filler appeared to be coming out of the mattress.
The undisputed testimony was that the torn mattress was not being used by any resident of the facility, but was a mattress that was not being used.
The Notice of Intent to Deny mischaracterizes the surveyor's findings under Tag A1024 as "failure to provide beds for two residents." This allegation was not addressed or proven by the Agency.
DECEMBER 14, 2000, APPRAISAL: TAG A1033
The fourth alleged violation, cited under Tag A1033, relates to the physical plant standard set forth in Rule 58A- 5.023(5), Florida Administrative Code. That standard requires that each bathroom have a door in working order to assure privacy and that the entry door to the bathrooms with a single toilet is required to have a lock which is operable from the inside by the resident, with no key needed. The Agency alleged that this standard was not met in that the bathroom door on the first floor was not operable because the door was missing the striker plate that keeps the door tightly closed into the frame. The Agency noted that as a result of this alleged defect, residents using that bathroom did not have privacy.
Based on Mr. McCarthy's testimony, there was a door leading into the bathroom, which had a working lock. In addition, the door with the missing striker plate had a hook and eye that allowed the door to be secured from the inside.
MARCH 12, 2001, APPRAISAL
TAG A519
Tag A519 requires the facility to meet the minimum staffing required by Rule 58A-5.019(4), Florida Administrative Code. Based on the resident census of 25 for March 4-12, 2001, and the surveyor's review of the staff work schedule for that week, Oakland Manor was cited for a Tag A519 deficiency. According to the facility's staff work schedule, there were 208 total staff hours for that week and not the required minimum staffing hours.
The Form 3020 stated that the "[l]ack of adequate staffing has resulted in a malfunctioning sewage system which poses an immediate risk to the residents, staff, and public." In making this allegation, the Agency apparently assumed that the residents caused the sewage system problems and that if there had there been adequate staffing, these problems would not have occurred. The Agency then alleged that the malfunctioning sewage system posed an immediate risk to the residents, staff, and public. However, these assumptions and allegations are not supported by any evidence. There is no evidence that the sewage system problems were caused by the residents and/or lack of staffing. Moreover, there is nothing in this record which supports the claim that the malfunctioning sewage system posed an "immediate risk" to the residents, staff, or public.
Clearly, there was a Tag A519 deficiency in that the facility failed to maintain the weekly minimum staff hours required. Also, because the facility had been cited for a Tag A519 deficiency during the December 14, 2000, appraisal, the Agency properly found that the Tag A519 deficiency, cited during the March 12, 2001, appraisal was an uncorrected deficiency. However, in this instance, the violation did not "directly threaten the physical or emotional health, safety, or security of the facility residents." Accordingly, the violation is not a Class II deficiency, as alleged by the Agency, but is a Class III deficiency.
MARCH 12, 2001 APPRAISAL: TAG A523
As stated on the Form 3020, Tag A523 requires that, notwithstanding the minimum staffing ratio, all facilities have enough qualified staff to provide resident supervision, and provide or arrange for resident services in accordance with resident scheduled and unscheduled service needs, resident contracts, and resident care standards. See Rule 58A- 5.019(4)(b), Florida Administrative Code. The Agency alleged that Oakland Manor failed to meet this standard.
The determination that Oakland Manor failed to meet the standard required by Tag A523 was based on the surveyor's observation and interview with the facility administrator. On the day of the survey, from 9:30 a.m. to approximately 11:00
a.m., the surveyor noticed that there was a strong odor of sewage coming from the basement area and standing water on the basement floor. The surveyor learned from the administrator that the matter came to her attention that morning and that a plumber had been called and had corrected a similar problem a week earlier. Mr. McCarthy explained that the lift station malfunction and the overflow of sewage into the basement had occurred the day of the Agency inspection. After a plumber came to the facility to repair the lift station and was unable to do so, an electric company was called and came out and immediately repaired the lift station.
The Form 3020 notes that when the lift station backed up the week before, the plumber found t-shirts, garbage bags, bandannas, and a stick of deodorant clogging up the lift station. From this alleged statement, the surveyor erroneously concluded that some of the residents had thrown these and possibly other items into the lift station. In view of this assumption, the surveyor alleged on the Form 3020 that:
The lift station back up is occurring due to a lack of supervision of qualified staff to provide resident supervision and allowing the residents to freely access the lift station in the yard and put items in it.
The size and accessibility of the lift station also poses a threat to residents due to the possibility of a fall while throwing in inappropriate items.
The lift station was in the yard of the facility, but the residents do not have free access to the lift station, except the top external lid of the lift station. The residents can not remove the lid covering the lift station because the lid is made of steel and weighs over 200 pounds. Accordingly, the residents can not throw items in the lift station and, thus, there is no threat to the residents "due to the possibility of a fall while throwing" items into the lift station, as alleged by the Agency.
The Agency deemed the Tag A523 violation as a Class II deficiency and required that the facility correct the deficiency immediately. The Agency failed to establish this allegation.
MARCH 12, 2001, APPRAISAL: TAG A1001
The standards of Tag A1001 are stated in paragraph 20.
Based on the surveyor's observations, Oakland Manor was again cited for a Tag A1001 deficiency. Tag A1001 was deemed by the Agency to be an uncorrected deficiency and designated a Class II violation.
In the Form 3020, the Agency listed the following 12 alleged facts as the basis for the cited deficiency:
Two large ladders were lying on the floor in the hallway, partially blocking access through the hallway.
The bathtub and shower in the first floor shower room were badly stained and mildewed.
In Room No. 1, the toilet was not working and there was an accumulation of feces in the toilet bowl.
In Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room.
The wall and floors throughout the facility were dirty.
In Room No. 8, there was an electric space heater in front of full length curtains.
In Room No. 10, there were cigarette butts on the floor and the resident in the room was observed smoking, although smoking is not allowed in the facility.
In the second residential building, the first bathroom had a dirty floor and the vinyl was very worn and there was no lid on the "toilet back."
In the second residential building television room, there was a resident smoking even though there is a no smoking sign posted.
There was a strong sewer odor emanating from the facility basement and the basement had standing water.
The staircase to the second floor of the main building was covered with dirt and grime.
The overhead light in the second floor hallway was not working and the staircase was very dark.
The ladders, referred to in the Form 3020, were not lying on the floor but were leaning against a recessed part of the wall in the hallway. They were not blocking the passageway and, even with the ladders in the hallway, there was enough room
for a 215-pound man to walk through the hall into the adjacent room. The reason the ladders were in the hall was that
Mr. McCarthy was painting the facility. At the end of each day, when Mr. McCarthy was finished painting, he stored the ladders in an office in back of the kitchen or in a shed in the back of the facility.
The surveyor reported that the bathtub and shower in the first floor shower room were badly stained and mildewed. Mrs. McCarthy testified that the shower stall is made of heavy marble and is original to the 100-year-old house and that many of the stains can not be scrubbed off. The substance the surveyor described as mildew was shampoo.
The toilet in Resident Room No. 1 was described in the Form 3020 as having an accumulation of feces and not working. The toilet was stopped up, but was working and was put back into flushing order that same day, immediately upon the problem being called to her attention. The residents in that room placed female products in the toilet and caused it to stop up. However, the toilet was functioning in all respects when it was not stopped up.
In Resident Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. This was not disputed. Every shift, staff is suppose to sweep,
mop, and make sure that the room is cleaned out, but sometimes the residents put their laundry on the bed.
The walls and floors throughout the facility were dirty as reported in the Form 3020. In an effort to keep the walls clean, they are painted every three or four months.
The Agency surveyor observed a space heater in Room No. 8, which she characterized as a fire hazard. However, the heater was not plugged in and was not in use at that time. When the heater is in use, it is in the middle of the room and not near the curtain.
In Room No. 10, the surveyor observed cigarette butts on the floor and the resident in the room was observed smoking, even though the facility had a no smoking policy and all residents were given copies of that policy, upon admission.
In Oakland Manor’s second residential building, the surveyor observed that the floor was dirty and the vinyl was torn, and there was no lid on the toilet back. Mr. McCarthy confirmed that the vinyl was worn and did not dispute that the floor was dirty. At the time of the Agency inspection, the worn dirty vinyl was in the process of being replaced. With regard to the toilet backs, the residents remove the toilet tank lids, but they are always put back on.
The Agency surveyor observed a resident smoking in the television room, even though there was a “No Smoking” sign
posted in the room. At Oakland Manor, smoking in violation of the house rules is a continuing problem that the administrator and staff make efforts to correct.
The Agency surveyor observed that there was standing water in the basement and a strong sewer odor coming from the basement. Other facts related to this observation are discussed in paragraphs 35 and 36. Mrs. McCarthy does not dispute this allegation, but the problem was promptly correctly. Mr. Carthy corrected the problem within 48 hours; he went into the basement and “squeegeed” all the standing water and otherwise treated the floor to dry it and deodorize it.
The surveyor determined that the overhead light in the second floor hallway of the main house was not working. She reached this conclusion after she first observed the dark hallway and then tried to turn on the light and was unable to do so. There is no indication that the surveyor asked facility staff to turn on the light or inquired as to how the switch worked.
The light operates by a three-way switch, and although there are two switches, only one of them turns on the light. Also, there are two lights in the stairwell so that if one light is burned out, the other one still works, but it does not appear that the inspector knew how to operate the three-way switch.
No testimony was presented by the Agency regarding the allegation concerning the staircase to the second floor of the main house.
Based on the Agency’s findings in the paragraph 40-d, e, and j, above, the facility was properly cited for the Tag A1001 deficiency. This was an uncorrected deficiency.
MARCH 12, 2001, APPRAISAL: TAG A1004
Tag A1004 requires that all windows, doors, plumbing, and appliances in assisted living facilities be functional and in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. According to the Form 3020, Oakland Manor failed to meet this standard as evidenced by windows in the facility that were not functional and in good working order and failing to promptly repair broken glass, which "may result in injury to residents or staff."
The surveyor observed the following: a large window pane in the front door was broken, the lower window pane in the dining room window was covered over with plywood, the first floor rear bathroom window was hanging off the hinge and the screen was missing; and the window pane of the outside door leading to the ramp was broken and covered with a garbage bag.
The owners do not dispute that the pane in the front door was broken, but testified that the material was not glass, but Plexiglas. The door had been broken by one of the residents
the day of the survey. Mr. McCarthy replaced the Plexiglas pane the same day and, four or five days later, replaced the entire front door with a solid door.
As to the allegation that the lower half of the dining room window was covered with plywood, that there was not a glass pane in the lower part of the window. Rather, the plywood was placed there instead of the glass and was put in with trim molding and sealed with caulking. It appears that the window was designed that way to serve as a "fixed" window. The Agency acknowledged that window had been like that before the McCarthys purchased the facility. Moreover, the Agency had not previously indicated that this was a violation of any regulation.
Although the Agency offered no suggestions to address its concern with the “fixed” window, Mr. McCarthy replaced the plywood with Plexiglas in an attempt to comply with the Agency requirements.
The surveyor's observation regarding the first floor rear bathroom window was reversed. There was a screen on hinges that opened and closed and the top hinge of the screen was pulled out and hanging over a bit. However, the screen was there and the window was functional.
Mrs. McCarthy does not dispute that the outside door had a broken glass pane that was covered with a garbage bag.
The glass pane had been broken out earlier that day and the entire door was replaced within a day or so of the Agency's appraisal visit.
The observations noted in paragraph 61 constitutes a violation of Tag A1004.
MARCH 12, 2001, APPRAISAL: TAG A1024
The Tag A1024 requires that each resident room in an assisted living facility be furnished with, among other things, a clean comfortable mattress. See Rule 58A-5.023(4)(e)1., Florida Administrative Code. According to the Form 3020, the Agency alleged that Oakland Manor failed to comply with this standard in that "the facility did not provide appropriate beds for two residents." No mention is made in the Form 3020 of which residents did not have appropriate beds.
The alleged Tag A1024 deficiency was based on the two reported observations of the surveyor. First, the Form 3020 notes that in Room No. 10, the surveyor observed "a medical crutch being used as a mattress support on one bed." Second, the surveyor noted her observation that in Room No. 4, there was "a ripped mattress with the filling coming out of the rips."
The owners testified that the crutch was not being used to support the mattress and that bed was not being used by any of the residents. Mr. McCarthy did not know why the crutch was under the mattress, but it was not there for support because
of the construction of the bed. As to the second observation, the owners do not dispute that the mattress also in Room No. 4 was ripped. However, the bed with the torn mattress was not being used by anyone and has been replaced. Finally, there were appropriate beds for all the residents because at the time of this survey, there were 26 residents and 32 beds. This testimony was not disputed by the Agency.
Tag A1024 was deemed by the Agency to be an uncorrected deficiency and was designated as a Class III violation. The Agency gave the facility until March 15, 2001, to correct the deficiency.
MARCH 12, 2001, APPRAISAL: TAG A210
Four additional new violations were cited as a result of the Agency's March 12, 2001, appraisal visit. These violations or deficiencies were assigned Tag A210, Tag A212, Tag A523, and Tag A1004.
Tag A210 requires compliance with the standards set forth in Rule 58A-5.024, Florida Administrative Code. That rule requires that assisted living facilities maintain the records prescribed therein "in a form, place and system ordinarily employed in good business practice and accessible to the department and [A]gency staff." Rule 58A-5.024(1)(m), Florida Administrative Code, requires that the facility maintain all fire safety inspection reports issued by the local authority
having jurisdiction or the State Fire Marshal within the past 2 years.
In an interview, which occurred during this visit, the facility administrator advised the Agency surveyor that the fire inspection reports were not on the premises, but at the administrator's home. Based on this statement by the administrator, the Agency properly concluded that this standard was violated because the fire inspection records were maintained at the owner/administrator's home, and were not in a place accessible to Agency staff as required by the applicable rule.
MARCH 12, 2001, APPRAISAL: TAG A212
The Tag A212 relates to facility records standards.
According to the Form 3020, Oakland Manor failed to meet this standard in that it violated Rules 58A-5.020(3) and 58A- 5.024(1)(n), Florida Administrative Code. The former rule requires that "copies of inspection reports [relating to food hygiene] issued by the county health department for the last two years . . . be on file in the facility." The latter rule requires that all sanitation inspection reports issued by the county health department within the past two years be maintained in a form, place, and system ordinarily employed in good business practice and accessible to department or agency staff.
The Form 3020 indicates and it is undisputed that the most recent copy of the sanitation inspection report was not on the premises, but at the administrator's home.
MARCH 13, 2001, ORDER OF IMMEDIATE MORATORIUM
On March 13, 2001, the day following the Agency’s March 12, 2001, appraisal visit to Oakland Manor, the Agency imposed a Moratorium on Admissions to the facility, which has remained in effect.
JUNE 12, 2001, MORATORIUM MONITORING VISIT TAG A528
In the Notice of Denial, the Agency alleged that a Moratorium monitoring visit was made to Oakland Manor on
June 12, 2001, during which the facility was cited for violating Tag A528. The Agency failed to establish this violation.
JUNE 13, 2001, COMPLAINT INVESTIGATION TAG A1114
On June 13, 2001, the Agency conducted a complaint investigation of Oakland Manor. As a result of the investigation, the Agency alleged that the facility violated Tag A1114 by failing to include in an employee’s file documentation of compliance with Level 1 screening. The standards under Tag A1114 are set forth in Section 400.4275(2), Florida Statutes, and Rules 58A-5.019(3) and 58A-5.024(2)(a)3., Florida Administrative Code.
Pursuant Rule 58A-5.019(3), Florida Administrative Code, a Level 1 screening is required for all employees hired after October 1, 1998, to provide personal services to residents. Also, personnel records for each staff member should include documentation of compliance with Level 1 background screening for all staff. See Subsection 400.4275(2), Florida Statutes, and Rule 58A-5.024(2)(a)3., Florida Administrative Code.
Mr. and Mrs. McCarthy did not dispute this allegation.
According to the Form 3020, the employee in question had been hired by the facility on or about May 15, 2001. Mrs. McCarthy told the surveyor that she had applied for the background screening about two weeks prior to the June 13, 2001, complaint investigation, but it had not yet been received. Later that day, the administrator provided the surveyor with a copy of an arrest report from the Tampa Police Department. The arrest report did not satisfy the standards required under Tag A1114.
The deficiency constituted a failure to comply with the requirements of Tag A1114, and was properly designated a Class II deficiency.
JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG L200
Tag L200 requires assisted living facilities with a limited mental health license, such as Oakland Manor, to have a
copy of each mental health resident’s community living support plan. See Subsection 400.4075(3)(a), Florida Statutes. In addition, Tag L200 requires that the mental health case manager and the mental health resident, in conjunction with the facility administrator, prepare the community living support plan within
30 days of admission to the facility or within 30 days after receiving the appropriate placement assessment. See Subsection 400.402(8), Florida Statutes, and Rule 58A.5.029(2)(c)3.a., Florida Administrative Code.
According to the Form 3020, the surveyor reviewed the file of Resident 1, a limited mental health resident who was admitted to the facility on November 23, 1993, and did not find the resident’s community living support plan. The resident’s record did have the annual community living support plan, but the surveyors simply missed or inadvertently overlooked the document.
There was a community living support plan in Resident 1’s file that was signed by the resident, the resident’s counselor, and the former facility administrator, and dated February 17, 1999. Attached to the community living support plan were progress notes, with the last entry dated
October 14, 1999.
JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS L201, L202, L203, AND L400
Oakland Manor was cited for violating standards under Tags L201, L202, L203, and L400, all of which relate to community living support plans.
Tag L201 requires that the community living support plan include the components enumerated in Rule 58A- 5.029(2)(c)3.a.(i)-(vi) and (viii), Florida Administrative Code. Tag L202 requires the assisted living facility to make the community living support plan available for inspection by the resident, the resident’s legal guardian, the resident’s health care surrogate, or other individuals who have a lawful reason to review the plan. See Subsection 400.4075(3)(c), Florida Statutes. Tag L203 requires that the community living support plan to be updated annually in accordance with See Rule 58A- 5.029(2)(c)3.a.(vii), Florida Administrative Code. Finally, Tag L400 requires the facility to assist the mental health resident in carrying out the activities identified in the individual’s community living support plan. See Subsection 400.4075(3)(d), Florida Statutes.
The alleged deficiencies cited under Tags L201, L202, L203, and L400 were all based on the surveyor’s finding that the file of Resident 1 did not contain a community living support plan. In light of the finding in paragraph 80, that the annual
community support plan was in the resident’s file, the Agency did not establish the deficiencies listed under Tags L201, L202, and L400.
Oakland Manor failed to comply with the standards of Tag L203, in that the community living support plan had not been updated annually as required by the foregoing rule.
JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A525
Tag A525 was assigned to Oakland Manor based on the Agency's determination that for two facility employees, scheduled to work alone on the 11:00 p.m. to 7:00 a.m. shift, there was no documentation that they had received first aid training. This alleged deficiency constitutes a failure to comply with the staffing standards in Rule 58A-5.019(4)(a)4., Florida Administrative Code, which requires that at least one member who is trained in first aid and CPR be in the facility at all times.
Oakland Manor was properly cited for a violation of Tag A525 which was designated a Class III deficiency.
JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A634
The Agency assigned a Tag A634 deficiency to Oakland Manor based on its determination that Oakland Manor failed to meet the medication standards set forth in Section 400.4256(1), Florida Statutes. That provision requires the facility to advise the resident or the resident's guardian or surrogate that
the resident may receive assistance with self-administration of medication from an unlicensed person and that such assistance will not be overseen by a licensed nurse. As support for this violation, the Form 3020 noted that based on a review of three residents' files, there was no documentation that the facility had informed the residents as required by Section 400.4256, Florida Statutes.
The facility does inform residents appropriately, based on documents included in the admissions package. However, the surveyors did not look anywhere except the residents’ files for that documentation. The residents also signed a letter giving their informed consent to comply with the Agency regulations, and a copy of that letter was faxed to the Agency soon after the citation.
JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A1005
As part of this survey, the Agency assigned a
Tag A1005 deficiency, alleging that the facility failed to meet the physical plant standard required by Rule 58A-5.023, Florida Administrative Code. That rule requires that all furniture and furnishings be clean, functional, free of odors, and in good repair. This deficiency was based on a surveyor's observation of the main bathroom on the first floor of the main building.
During a tour of the facility, the Agency surveyor observed human excrement on the bathroom floor, on the outside
of the toilet bowl, and on the toilet seat. The surveyor also observed that an adult brief, filled with human excrement, had been thrown against the wall. After this was brought to the administrator's attention, the bathroom was cleaned immediately. However, several hours later, when the surveyor returned to the area, human excrement again had been smeared on the toilet seat. A few minutes prior to the surveyor returning to the bathroom, a resident exited the bathroom. Therefore, it is very likely that the resident who was in the bathroom soiled the toilet seat after it had been cleaned.
The facility staff has a regular cleaning schedule and, pursuant to that schedule, the bathrooms are checked and cleaned several times, as necessary. However, the residents are entitled to their privacy in the bathrooms and staff does not check the bathroom every time a resident uses it.
Tag A1005 was designated a Class III deficiency, and the facility was required to and did correct this deficiency immediately after it was discovered. In light of the totality of the circumstances, the Agency did not properly cite the facility for a violation of this tag.
JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS A1101 AND A1103
The Agency cited Oakland Manor for a Tag A1101 deficiency for failure to adhere to the staff record standards
in Rule 58A-5.024(2)(a), Florida Administrative Code. That rule requires that the personnel records of each facility staff member contain the verification of freedom from communicable disease, including tuberculosis.
The Tag A1101 deficiency was based on a review of eight personnel files, which revealed three files that contained no documentation that the respective employees were free from communicable disease. The three employees, for whom there was no documentation, had been hired two or three months prior to the June 28, 2001, re-licensure survey, on March 20, April 4, and April 20, 2001.
JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG A1103
The Agency cited Oakland Manor for a deficiency under Standards of Tag A1103. That tag requires that, within 30 days of being hired, a facility staff member must "submit a statement from a health care provider, based on an examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis." See Rule 58A-5.019(2)(a), Florida Administrative Code. The rule further provides that such "freedom from tuberculosis must be documented on an annual basis."
The Tag A1103 deficiency was assigned based on the Agency's review of the personnel files of eight of the
facility’s staff members. The Form 3020 states that the files of four employees, W.W., L.M., J.V., and M.J., hired July 5, 1992, November 1999, April 23, 2001, and March 20, 2001, respectively, did not contain documentation of freedom from tuberculosis, obtained from a test in the last 365 days.
The Agency's finding that the facility failed to comply with the staffing standards in Rule 58A-5.019(2)(a), Florida Administrative Code, is well-founded as it relates to the staff members employed on July 5, 1992, and November 1999. However, the requirement that freedom from tuberculosis must be documented annually can not be the basis for the Tag A1103 deficiency, as it relates to the two employees hired on
March 20, 2001, and on April 23, 2001, only two or three months from the date of the survey.
SEPTEMBER 18, 2001, APPRAISAL VISIT TAG A519
On September 18, 2001, the Agency conducted an appraisal visit of the facility and cited it for a Tag A519 deficiency, which relates to failure to maintain minimum staffing standards required in Rule 58A-5.019, Florida Administrative Code. The cited deficiency was based on the fact that the facility census was sixteen. In accordance with the foregoing rule, on the day of the September visit, the resident facility was required to have a weekly minimum of 253 staffing
hours, but the facility only had 208 hours. Based on its review of records proved by the facility, the Agency properly concluded that the facility did not meet the minimum staffing standards for the first two weeks of September 2001.
The Agency designated the Tag A519 as a Class III deficiency and properly noted that this was a "repeat
deficiency."
SEPTEMBER 18, 2001, APPRAISAL TAG A1004
Tag A1004 requires that the windows, doors, plumbing, and appliances of the facility be in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. The Agency found that Oakland Manor was in violation of this standard. According to the surveyor, the basis for this alleged violation was that "certain light fixtures throughout the facility were being maintained in an unsafe manner" and that "numerous bare (uncovered by globe or shade) light bulbs were observed, specifically in the dining area and in the main building bathrooms." The Agency concluded that the "unprotected bulbs are in danger of being broken, putting the residents at risk."
Although the Agency cited the facility for the exposed light bulbs, the surveyor testified that there is not a specific tag that addresses the hazards of a light bulb, but the
designated Tag A1004 “was the best available citation, quite frankly.”
SUMMARY
For the period between December 2000 and September 2001, the Agency made appraisal visits, investigations, and surveys of Oakland Manor. Follow-up visits were also made to the facility after many of these visits. As a result of the visits, investigations, and surveys, Oakland Manor was cited for the numerous violations noted herein. As reflected in the Agency documents mailed to Oakland Manor, the Agency determined that almost without exception, the deficiencies were timely corrected. Also, it is noted that despite the numerous and varied deficiencies for which Oakland Manor was cited, the Agency never took action to remove any of the residents from the facility, although it did issue the Order directing Oakland Manor to not admit new residents. Moreover, the Agency never fined the facility or took any other disciplinary action against the facility.
In light of the facts herein, the likely reason the Agency took no action to remove residents was that none of the alleged violations involved matters dealing with the care and/or treatment of the residents. In fact, the evidence established that the residents were treated well by the staff and owners and
that the residents and their families were pleased with the facility.
A review of the surveys and visits indicates that the deficiencies cited and/or established based on the December 2000 and March 2001 visits dealt, to a significant degree, with physical plant standards. At the time of these visits, it was established that the facility, a 100-year-old wood frame building, was undergoing a major rehabilitation that was being done by Mr. McCarthy. It is noted that after the March 2001 visit, the previously cited violations dealing with physical plant standards were not present at subsequent surveys, an indication that the owners were working to complete the rehabilitation project and comply with the Agency's requirements.
The second largest category of deficiencies dealt primarily with record keeping; in most cases the records existed but were not at the facility or in the file reviewed by the Agency. The uncorrected and repeated deficiency involved a shortage of staffing. However, there were many times when the facility was appropriately staffed. Of particular note and despite the shortage of staff on occasion, there is not an indication that any resident at the facility was ever harmed or placed in jeopardy because of the shortage. Moreover, it appears that the shortage was not because of the owners' failure
to attempt to correct the problem, but, in some instances, was because employees did not show up for work or the administrator failed to properly document, on the posted work schedules, the hours of employees.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
The Agency seeks to deny Oakland Manor's application for renewal license pursuant to Subsection 400.414 (1)(e), Florida Statutes, which provides the following:
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.
The Agency contends that the proposed action is appropriate, based on the facility's failure to meet minimum licensing standards as evidenced by the alleged deficiencies for which the facility was cited.
Section 400.419, Florida Statutes (2001), defines Class II and Class III as follows:
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 the facility residents. The agency shall indicate the classification on the written notice of violation as follows:
* * *
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 $1,000 and not exceeding $5,000 for each violation. A citation for a class II violation must specify the time within which the violation is required to be corrected.
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 $500 and not exceeding $1,000 for each violation. A citation for a class III violation must 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.
The burden of proof in this proceeding is on the Agency. To prevail in this proceeding, the Agency is required to prove the allegations against Oakland Manor by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).
The "clear and convincing" standard requires:
[T]hat the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Applying that standard, the Agency met its burden as to the deficiencies noted herein. With regard to the
December 14, 2001, appraisal visit, the Agency established that Oakland Manor violated the standards under Tag A519 and Tag A1001 and properly rated them as Class III deficiencies.
The Agency established that Oakland Manor violated Tag A210, Tag A212, Tag A519, Tag A1001, Tag A1004, as cited in the March 12, 2001, appraisal visit. The evidence also established that Tag A210, Tag A212, and Tag A1004 were properly rated as Class III deficiencies and that Tag A1001 was properly rated as a Class II deficiency. The Agency failed to meet its
burden regarding the Class II rating of the Tag A519 deficiency in that no evidence was presented to show that the shortage of staff, in this case, directly threatened the physical or emotional health, safety, or security of the facility residents. Based on the standard set in Subsection 400.419(1), Florida Statutes, Tag A519 is a Class III deficiency. Tag A519 and Tag A1001 were uncorrected deficiencies.
The Agency established that Oakland Manor violated Tag A1114 and was properly rated a Class II deficiency as alleged, based on the June 13, 2001, investigation.
At hearing, the evidence established that Oakland Manor violated Tag A525, Tag A1101, Tag A1103, and Tag L203 and that all were Class III deficiencies, as cited in the June 28, 2001, license renewal survey report.
The Agency proved that Oakland Manor violated Tag A519 and that it was a Class III deficiency, as alleged in the September 18, 2001. This was a repeated deficiency.
With respect to the remaining alleged deficiencies, the Agency failed to meet its burden.
In summary, Oakland Manor had two uncorrected deficiencies and one repeated deficiency. The uncorrected deficiencies were the Tag A519, Class III violation, and the Tag A1001, Class II violation, cited in the March 2001, appraisal
visit; the repeated deficiency was the Tag A519, Class III violation, cited in the September 18, 2001, appraisal visit.
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 revising the survey reports to delete and/or modify the deficiencies described in the Forms 3020 that are not supported by the record and granting Oakland Manor's application for renewal of its assisted living facility license.
DONE AND ENTERED this 4th day of October, 2002, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
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, 2002.
COPIES FURNISHED:
A. S. Weekley, Jr., M.D., Esquire Holland and Knight LLP
400 North Ashley Drive Tampa, Florida 33602
Eileen O'Hara Garcia, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701
Lisa McCarthy, Administrator Oakland Manor ALF
2812 North Nebraska Avenue Tampa, Florida 33602
Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3431 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.
| Issue Date | Document | Summary |
|---|---|---|
| May 13, 2003 | Agency Final Order | |
| Oct. 04, 2002 | Recommended Order | Where Agency proved only two uncorrected deficiencies, a Class II and a Class III violation, and one repeated Class III violation, recommend renewal of assisted living facility license. |
AGENCY FOR HEALTH CARE ADMINISTRATION vs AMWIL ASSISTED LIVING, INC., 01-004214 (2001)
CHAN GOBIN vs AGENCY FOR HEALTH CARE ADMINISTRATION, 01-004214 (2001)
SUN VILLAGE HOMES, INC. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 01-004214 (2001)
AGENCY FOR HEALTH CARE ADMINISTRATION vs ST. CATHERINE`S T.L.C., INC., 01-004214 (2001)
AGENCY FOR HEALTH CARE ADMINISTRATION vs ORLANDO LIVING CENTER, 01-004214 (2001)
