vs. ) Case No. 03-0162
Respondent. )
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on March 13, 2003, in Miami, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what sanctions, if any, should be imposed.
On December 2, 2002, the Agency for Health Care Administration (Agency) filed a three-count Administrative Complaint alleging that that Respondent committed the following "uncorrected Class III violations": Count I- "Marisa's failed to ensure that the facility had a current annual cleared fire inspection from the [Miami-]Dade County Fire Department [in violation of Section] 400.441(1)(a), Fla. Stat. and/or [Rule] 58A-5.015(1)(a)3, F.A.C."; Count II- "Marisa's failed to have an approved Emergency Management Plan for the facility for the current year [in violation of Section] 400.441(1)(b), Fla. Stat and/or [Rule] 58A-5.026(2), F.A.C."; and Count III- "Marisa's failed to ensure that there was an employee with current first aid and CPR training present at the facility at all times [in violation of Rule] 58A-5.019(4)(a)4, F.A.C." By submission of a completed Election of Rights, Respondent requested a "formal hearing, pursuant to Section 120.57(1), Florida Statutes, before an Administrative Law Judge appointed by the Division of Administrative Hearings." The matter was referred to the Division of Administrative Hearings on January 17, 2003, for the
assignment of an Administrative Law Judge to conduct the hearing Respondent had requested.
On March 11, 2003, the parties filed a Joint Prehearing Stipulation, which contained, among other things, "stipulated facts" and "stipulations of law."
As noted above, the final hearing was held on March 13, 2003. Three witnesses testified at the hearing: Joseph Kraus, Alejandro Sera, and Maria Grillo. In addition to the testimony of these three witnesses, four exhibits (Respondent's Exhibits 1 through 4) were offered and received into evidence.
At the close of the evidentiary portion of the hearing, the undersigned established a deadline (ten days from the date of the filing of the hearing transcript with the Division) for the filing of proposed recommended orders.
A Transcript of the final hearing (consisting of one volume) was filed with the Division on April 14, 2003. On April 22, 2003, the Agency filed a Proposed Recommended Order, which the undersigned has carefully considered. To date, Respondent has not filed any proposed recommended order.
Based on the evidence adduced at the final hearing and the record as a whole, including the stipulations contained in parties' Joint Prehearing Stipulation, the following findings of fact are made:
Respondent operates an Assisted Living Facility (Facility) in "two houses" located on Southwest 40th Street in Miami, Florida.
The Facility is licensed by the Agency under Chapter 400, Part III, Florida Statutes.
The Facility's licensed capacity is 22 residents (11 in each "house").
At all times material to the instant case, there were ten residents living in the Facility (six in one "house" and four in the other).
At all times material to the instant case, Maria Grillo was the owner/administrator of the Facility.
Ms. Grillo has been involved in the operation of the Facility for the past 11 years. Her husband ran the Facility before he became ill and passed away in the late 1990's.
Ms. Grillo helped him with the paperwork. Following her husband's death, Ms. Grillo took over his administrative responsibilities at the Facility.
Ms. Grillo has a full-time job "outside of the Facility." Her work hours are 8:00 a.m. to 5:00 p.m., Monday through Friday.
Ms. Grillo has designated (in writing) Mirta Dearmas to be in charge of the Facility in her absence. At all times
material to the instant case, Ms. Dearmas has been Ms. Grillo's designee.
Ms. Dearmas, who "has her own Assisted Living Facility," comes by to "check the [F]acility" in Ms. Grillo's absence. "[I]f there's any need for her to do paperwork or anything [else] before [Ms. Grillo] get[s] there," then she'll help [Ms. Grillo] out." She does not stay at the Facility the entire day.
Ms. Dearmas provides these services free of charge, as a favor to Ms. Grillo.
At all times material to the instant case, the Facility had three full-time paid employees (Alicia Torres, Ana Rodriguez, and Altair Goncalves) and one part-time paid employee (Maria Saveedra).
Joseph Kraus is a surveyor with the Agency.
Mr. Kraus performed a biennial survey at the Facility on August 28, 2002, during which he found what he believed to be six Class III violations. He cited the Facility for having these violations and gave Respondent until September 28, 2002, to correct them.
Mr. Kraus conducted a follow-up survey at the Facility on October 8, 2002. His conclusion was that three of the six violations he had noted during his August 28, 2002, survey had not been corrected.
Ms. Grillo was not at the Facility during either the August 28, 2002, survey or the October 8, 2002, follow-up survey.
Ms. Dearmas accompanied Mr. Kraus as he surveyed the Facility on these dates.
At the time of Mr. Kraus' October 8, 2002, follow-up survey, as had been the case on August 28, 2002, there was no documentation of a satisfactory annual fire safety inspection. The Facility had failed an annual fire inspection conducted by the Miami-Dade Fire Rescue Department, Fire Prevention Division (Fire Prevention) because of a burned-out light bulb in an exit sign in the Facility. The light bulb was replaced immediately following the inspection, but Fire Prevention did not return to the Facility to conduct a re-inspection until after Mr. Kraus' October 8, 2002, follow-up survey of the Facility. Although the Facility passed this post-October 8, 2002, re-inspection by Fire Prevention, the Facility was nonetheless without documentation of a satisfactory annual fire safety inspection at the time of both Mr. Kraus' August 28, 2002, survey and his October 8, 2002, follow-up survey.
At the time of Mr. Kraus' October 8, 2002, follow-up survey, as had been the case on August 28, 2002, the Facility did not have an updated emergency management plan that had been approved by the Miami-Dade Fire Rescue Department, Office of
Emergency Management (Emergency Management). Ms. Grillo had sent an updated emergency management plan to Emergency Management for approval in or around April of 2002. It was not until in or around early December, however, that she was first notified by Emergency Management that there were deficiencies in the updated plan that needed to be remedied before the updated plan could be approved. On or around December 4, 2002, shortly after receiving such notification, Ms. Grillo submitted to Emergency Management the materials that were necessary to remedy the noted deficiencies in the updated plan. Emergency Management subsequently approved the updated plan.
At the time of Mr. Kraus' October 8, 2002, follow-up survey, as had been the case on August 28, 2002, an examination of the documentation in the personnel records maintained at the Facility revealed that only two of the Facility's staff members had cards documenting their completion of First Aid and CPR training, an insufficient number to ensure that there was, within the Facility at all times, an on-the-job staff member with such documented training.
Based on the results of Mr. Kraus' October 8, 2002, follow-up survey, the Agency, through the issuance of an administrative complaint, announced its intention to "impose an administrative fine in the amount of Three Thousand dollars
($3,000.00)" against Respondent for having three uncorrected Class III violations at the Facility.
The Facility has a history of previous violations, but these previous violations were minor and "always corrected."
CONCLUSIONS OF LAW
Chapter 400, Part III, Florida Statutes, contains Florida's Assisted Living Facilities Act (Act).
Among the provisions in the Act is Section 400.441, Florida Statutes, which authorizes the Department of Elder Affairs to adopt "rules establishing standards" for Assisted Living Facilities. It provides, in pertinent part, as follows:
. . . . In order to provide safe and sanitary facilities and the highest quality of resident care accommodating the needs and preferences of residents, the [D]epartment [of Elder Affairs], in consultation with the [A]gency, the Department of Children and Family Services, and the Department of Health, shall adopt rules, policies, and procedures to administer this part, which must include reasonable and fair minimum standards in relation to:
The requirements for and maintenance of facilities, not in conflict with the provisions of chapter 553, relating to plumbing, heating, cooling, lighting, ventilation, living space, and other housing conditions, which will ensure the health, safety, and comfort of residents and protection from fire hazard, including adequate provisions for fire alarm and other fire protection suitable to the size of the structure. Uniform firesafety standards shall be established and enforced by the State Fire Marshal in cooperation with the
agency, the department, and the Department of Health.
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2. Firesafety requirements.--
m. . . . . All licensed facilities must have an annual fire inspection conducted by the local fire marshal or authority having jurisdiction.
The preparation and annual update of a comprehensive emergency management plan. Such standards must be included in the rules adopted by the [D]epartment of [Elder Affairs] after consultation with the Department of Community Affairs. At a minimum, the rules must provide for plan components that address emergency evacuation transportation; adequate sheltering arrangements; postdisaster activities, including provision of emergency power, food, and water; postdisaster transportation; supplies; staffing; emergency equipment; individual identification of residents and transfer of records; communication with families; and responses to family inquiries. The comprehensive emergency management plan is subject to review and approval by the local emergency management agency. During its review, the local emergency management agency shall ensure that the following agencies, at a minimum, are given the opportunity to review the plan: the Department of Elderly Affairs, the Department of Health, the Agency for Health Care Administration, and the Department of Community Affairs. Also, appropriate volunteer organizations must be given the opportunity to review the plan. The local emergency management agency shall complete its review within 60 days and either approve the plan or advise the facility of necessary revisions.
The number, training, and qualifications of all personnel having responsibility for the care of residents. . . .
* * *
The rules adopted by the Department of Elder Affairs pursuant to this grant of statutory authority include the following provisions:
58A-5.015 License Renewal and Conditional Licenses.
LICENSE RENEWAL. . . .
(a) All applicants for renewal of a license shall submit the following:
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A copy of the annual fire safety inspection conducted by the local authority having jurisdiction over fire safety or the State Fire Marshal. Documentation of a satisfactory fire safety inspection shall be provided at the time of the agency’s biennial survey.
* * * 58A-5.019 Staffing Standards.
* * *
STAFFING STANDARDS.
Minimum staffing:
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At least one staff member who is trained in First Aid and CPR, as provided under Rule 58A-5.0191, shall be within the facility at
all times when residents are in the facility.
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8. Only on-the-job staff may be counted in meeting the minimum staffing hours. . . .
* * *
58A-5.0191 Staff Training Requirements and Training Fees.
* * *
FIRST AID AND CARDIOPULMONARY RESUSCITATION (CPR). A staff member who has completed courses in First Aid and CPR and holds a currently valid card documenting completion of such courses must be in the facility at all times.
Documentation of attendance at First Aid or CPR course offered by an accredited college, university or vocational school; a licensed hospital; the American Red Cross, American Heart Association, or National Safety Council; or if offered by a provider approved by a health-related professional board in the Department of Health, shall satisfy this requirement.
* * * 58A-5.024 Records.
The facility shall maintain the following written records in a form, place and system ordinarily employed in good business practice and accessible to department and agency staff.
* * *
(2) STAFF RECORDS.
(a) Personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis. In addition as applicable:
1. Documentation of compliance with all staff training required by Rule 58A-5.0191;
* * * 58A-5.026 Emergency Management.
EMERGENCY PLAN COMPONENTS. Pursuant to
s. 400.441, F.S., each facility shall prepare a written comprehensive emergency management plan in accordance with the “Emergency Management Criteria for Assisted Living Facilities,” dated October 1995, which is incorporated by reference. This document is available from the local emergency management agency. The emergency management plan must, at a minimum address the following:
Provision for all hazards.
Provision for the care of residents remaining in the facility during an emergency including pre-disaster or emergency preparation; protecting the facility; supplies; emergency power; food and water; staffing; and emergency equipment.
Provision for the care of residents who must be evacuated from the facility during an emergency including identification of such residents and transfer of resident records; evacuation transportation; sheltering arrangements; supplies; staffing; emergency equipment; and medications.
Provision for the care of additional residents who may be evacuated to the facility during an emergency including the identification of such residents, staffing, and supplies.
Identification of residents with Alzheimer’s disease and related dementias, and residents with mobility limitations who may need specialized assistance either at the facility or in case of evacuation.
Identification of and coordination with the local emergency management agency.
Arrangement for post-disaster activities including responding to family inquiries, obtaining medical intervention for residents; transportation; and reporting to the county office of emergency management the number of residents who have been relocated and the place of relocation.
The identification of staff responsible for implementing each part of the plan.
EMERGENCY PLAN APPROVAL. The plan shall be submitted for review and approval to the county emergency management agency.
The county emergency management agency has 60 days in which to review and approve the plan or advise the facility of necessary revisions. Any revisions must be made and the plan resubmitted to the county office of emergency management within 30 days of receiving notification from the county agency that the plan must be revised.
* * *
The facility shall review its emergency management plan on an annual basis. Any substantive changes must be submitted to the county emergency agency for review and approval. . . .
The county emergency management agency shall be the final administrative authority for emergency management plans prepared by assisted living facilities.
Any plan approved by the county emergency management agency shall be considered to have met all the criteria and conditions established in this rule.
* * *
The Agency is authorized to impose fines for violations of the Act and the rules adopted thereunder pursuant to Section 400.419, Florida Statutes, which provides, in pertinent part, as follow:
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 $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
* * *
In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors:
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.
Actions taken by the owner or administrator to correct violations.
Any previous violations.
The financial benefit to the facility of committing or continuing the violation.
The licensed capacity of the facility.
Before imposing such a fine, however, the Agency must give the alleged violator reasonable written notice of the charges and an adequate opportunity to request an administrative hearing pursuant to Chapter 120, Florida Statutes. See Florida League of Cities v. Administration Commission, 586 So. 2d 397,
413 (Fla. 1st DCA 1991)("Until proceedings are had satisfying [S]ection 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person.").
Where "there is a disputed issue of material fact which formed the basis for the proposed final action [to impose
a fine]," the alleged violator is entitled to an evidentiary hearing held in accordance with Sections 120.569 and 120.57(1), Florida Statutes. Florida Sugar Cane League v. South Florida Water Management District, 617 So. 2d 1065, 1066 (Fla. 4th DCA 1993).
At the hearing, the Agency bears the burden of proving the alleged violator committed the violations charged.
Proof greater than a mere preponderance of the evidence must be presented by the Agency to meet its burden of proof. Clear and convincing evidence of guilt is required. See
Department of Banking and Finance, Division of Securities and Investor Protection v Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996)("[A]n administrative fine deprives the person fined of substantial rights in property. Administrative fines
. . . are generally punitive in nature. . . . Because the imposition of administrative fines . . . are penal in nature and implicate significant property rights, the extension of the clear and convincing evidence standard to justify the imposition of such a fine is warranted."); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").
Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . . 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." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
In determining whether the Agency has met its burden of proof, it is necessary to evaluate the Agency's evidentiary presentation in light of the specific factual allegations made in the charging instrument. Due process prohibits an agency from taking penal action against regulated persons based upon matters not specifically alleged in the charging instrument.
See Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v.
Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).
Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the charging instrument] to have been violated." Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
The Administrative Complaint issued by the Agency in the instant case alleges that Respondent committed the following "uncorrected Class III violations": Count I- "Marisa's failed to ensure that the facility had a current annual cleared fire inspection from the [Miami-]Dade County Fire Department [in violation of Section] 400.441(1)(a), Fla. Stat. and/or [Rule] 58A-5.015(1)(a)3, F.A.C."; Count II- "Marisa's failed to have an approved Emergency Management Plan for the facility for the current year [in violation of Section] 400.441(1)(b), Fla. Stat and/or [Rule] 58A-5.026(2), F.A.C."; and Count III- "Marisa's failed to ensure that there was an employee with current first aid and CPR training present at the facility at all times [in violation of Rule] 58A-5.019(4)(a)4, F. A.C."
The Agency met its burden of proving the uncorrected violation alleged in Count I of the Administrative Complaint in
that it established by clear and convincing evidence that the Facility did not have the required "[d]ocumentation of a satisfactory fire safety inspection" at the time of either the Agency's August 28, 2002, biennial survey or the Agency's October 8, 2002, follow-up survey. In view of the factors set forth in Section 400.419(2), Florida Statutes, however, the Agency should forego taking punitive action against Respondent for this uncorrected violation because the violation is merely a technical one, the result of Fire Prevention not having returned to the Facility for a re-inspection prior to the Agency's October 8, 2002, follow-up survey. Had Fire Prevention done so, it would have discovered that the deficiency it had found at the Facility during its initial inspection had been corrected.
The Agency met its burden of proving the uncorrected violation alleged in Count II of the Administrative Complaint in that it established by clear and convincing evidence that the Facility did not have an approved updated emergency management plan meeting the requirements of Section 400.441(1)(b), Florida Statutes, and Rule 58A-5.026, Florida Administrative Code, at the time of either the Agency's August 28, 2002, biennial survey or the Agency's October 8, 2002, follow-up survey; however, like the uncorrected violation alleged in Count I of the Administrative Complaint, this uncorrected violation, when the factors set forth in Section 400.419(2), Florida Statutes, are
considered, is not one warranting the imposition of a penalty. Although the Facility did not have an approved updated emergency management plan at the time of either the Agency's August 28, 2002, biennial survey or the Agency's October 8, 2002, follow-up survey, Ms. Grillo had sent an updated emergency management plan to Emergency Management for approval approximately four months before the August 28, 2002, survey and was still waiting to hear back from Emergency Management at the time of the October 8, 2002, follow-up survey (notwithstanding that, pursuant to Rule 58A-5.026(2)(a), Florida Administrative Code, Emergency Management had "60 days in which to review and approve the [updated] plan or advise the [F]acility of necessary revisions"). When Emergency Management finally advised her, in early December of 2002, of the updated plan's deficiencies,
Ms. Grillo, in accordance with the requirements of Rule 58A- 5.026(2)(a), Florida Administrative Code, submitted to Emergency Management, well within 30 days of receiving such notification, the materials that were necessary to remedy the noted deficiencies in the updated plan, and the updated plan was subsequently approved by Emergency Management. Under these circumstances, the Agency should decline to impose a fine against Respondent for not having its updated plan approved by Emergency Management at the time of the October 8, 2002, follow- up survey.
The Agency met its burden of proving the uncorrected violation alleged in Count III of the Administrative Complaint in that it established by clear and convincing evidence that the Facility did not have a sufficient number of staff with documented training in First Aid and CPR to ensure that an on- the-job staff member having such documented training was within the Facility at all times, as required by Rule 58A- 5.019(4)(a)4., Florida Administrative Code. This is the most serious of the uncorrected violations alleged in the Administrative Complaint and, in light of factors set forth in Section 400.419(2), Florida Statutes, warrants the imposition of a fine of $1,000.00, the maximum for a Class III uncorrected violation.
RECOMMENDED that the Agency issue a final order finding Respondent guilty of the uncorrected violations alleged in Counts I, II, and III of the Administrative Complaint and fining Respondent in the amount of $1,000.00.
DONE AND ENTERED this 1st day of May, 2003, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings This 1st day of May, 2003.
Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive
Rhonda M. Meadows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive
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.
