STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. )

) CREATIVE LIVING CENTERS, INC., ) d/b/a COVE MANOR RETIREMENT, )

)

Respondent. )

Case No. 02-2511

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on September 4, 2002, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403

For Respondent: Alvin L. Peters, Esquire

25 East Eighth Street Panama City, Florida 32401

STATEMENT OF THE ISSUES

The issues are whether Respondent failed to maintain an accurate medication record relating to narcotic medications in violation of Section 400.419(1)(b), Florida Statutes, and

Rule 58A-5.0185(3)(b), Florida Administrative Code; and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On May 30, 2002, Petitioner Agency for Health Care Administration (Petitioner) issued an Administrative Complaint against Respondent Creative Living Centers, Inc., d/b/a Cove Manor Retirement (Respondent). The Complaint alleged that Respondent failed to maintain an accurate medication observation record (MOR), relating to narcotic medication for one of Respondent's residents. On June 2, 2002, Respondent requested an administrative hearing to contest the allegations in the complaint.

A Notice of Hearing dated July 5, 2002, scheduled the hearing for September 4, 2002. During the hearing, Petitioner presented the testimony of one witness and offered 11 exhibits which were accepted into evidence. Respondent did not present any testimony or offer any exhibits for admission into evidence.

A Transcript of the proceeding was filed on September 23, 2002.

Petitioner filed a Proposed Recommended Order on September 27, 2002. Respondent filed a Proposed Recommended Order on October 2, 2002.

FINDINGS OF FACT

1. Petitioner has authority to license assisted living facilities (ALFs) and the duty to enforce all statutes and rules governing such facilities.

2. Respondent is a licensed ALF with a total capacity for

   
   

   35 residents. Respondent's License No. AL5888 is effective March 20, 2002, through March 19, 2004.

3. On January 31, 2002, Petitioner completed a biennial survey of Respondent's facility. During the survey, Petitioner's staff observed Respondent's staff administering medication to six residents who needed medication assistance.

4. Resident No. 6 received a narcotic medication, in tablet form, that she was supposed to take by mouth three times daily, as needed, for pain. The medication is addictive and may be obtained only by prescription.

5. The prescription bottle at issue here indicated that it was filled on January 21, 2002, with 100 tablets. There is no other evidence regarding the number of tablets in the bottle when it arrived at Respondent's facility. Respondent did not count the tablets in the bottle upon receiving it from the pharmacy.

6. Resident 6's MOR showed that she received the narcotic tablet three times daily, everyday, with no missed doses during the time period at issue here. According to the MOR, Resident 6

   received a total of 32 doses of the medication beginning January 21, 2002, at 7:00 a.m. through January 31, 2002, at 12:25 p.m. However, the bottle contained only 54 tablets as of January 31, 2002, at 12.25 p.m. Respondent's staff could not explain or account for the 14 missing narcotic tablets.

7. Under cover of a letter dated February 12, 2002, Petitioner advised Respondent that the biennial survey had identified a Class II deficiency relative to Resident 6's medication administration. The letter requested Respondent to file a plan of correction within ten days.

8. Resident 6's narcotic medication was refilled on February 19, 2002, with 100 tablets. As of March 8, 2002, Resident 6 had 51 pills remaining in the new prescription bottle.

9. On March 8, 2002, Petitioner's staff conducted a follow-up visit to Respondent's facility. The count of tablets in Resident 6's narcotic medication prescription bottle, when compared to the MOR, was correct at that time. Under cover of a letter dated March 15, 2002, Petitioner advised Respondent that the previously cited deficiency had been corrected.

   CONCLUSIONS OF LAW

   
   

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

11. Petitioner has the burden of proving, by clear and convincing evidence, that Respondent was guilty of a Class II deficiency as defined in Section 400.419(1)(b), Florida Statutes, and Rule 59A-5.0185(5)(b), Florida Administrative Code. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Petitioner has met its burden.

12. Section 400.419(1), Florida Statutes, states as follows in pertinent part:

    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 $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.

       
       

    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 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.

       
       

13. Rule 58A-5.0185(5)(b), Florida Administrative Code, states as follows:

    1. 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.

       
       

14. In this case, Resident 6's MOR did not account for 14 of the narcotic medication tablets. However, there is no clear and convincing evidence that Respondent violated

    Rule 58A-5.0185(5)(b), Florida Administrative Code, because the MOR correctly recorded every time that Respondent administered the medicine. Additionally, there is no evidence that

    Resident 6 ever missed a dose or refused to take the medication as prescribed. Under these circumstances, Respondent's inability to account for the missing tablets does not provide clear and convincing evidence that Respondent committed

    medication errors, which were not accurately recorded on the MOR.

15. Likewise, the record here shows that the missing tablets resulted in a potential harm and not in a direct threat to the physical or emotional health, safety, or security of any facility resident. While the missing tablets potentially could result in any number of dangerous situations, the only competent evidence of immediate harm is that Resident 6 was short 14 tablets.

16. Under these facts, Respondent may have committed and timely corrected a Class III violation for which it was not charged. In any event, there is no clear and convincing evidence that Respondent committed a Class II violation as defined in Section 400.419(1)(b), Florida Statutes.

RECOMMENDATION

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

RECOMMENDED:

That Petitioner enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 10th day of October, 2002, 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 10th day of October, 2002.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403

Alvin L. Peters, Esquire

25 East Eighth Street Panama City, Florida 32401

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.

Docket for Case No: 02-002511

Orders for Case No: 02-002511