STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

SAFE HAVEN INN, d/b/a CARDEN HOUSE,

Respondent.

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) Case No. 03-1944

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RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on August 5, 2003, in St. Petersburg, Florida, before Carolyn S. Holifield, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gerald Pickett, Esquire

Agency for Health Care Administration Sebring Building, Suite 330K

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701-3219

For Respondent: Bridget LaPoint, Owner

Carden House

2349 Central Avenue

St. Petersburg, Florida 33713 STATEMENT OF THE ISSUES

The issues for determination are: 1) whether Carden House failed to ensure daily observation by staff of a resident at the

facility in violation of Florida Administrative Code Rule 58A-5.0182(1)(b); 2) whether Carden House failed to maintain

written records of any significant changes in residents' normal appearance or state of health in violation of Florida Administrative Code Rule 58A-5.0182(1)(e); (3) if yes, what penalty should be imposed; and (4) whether Carden House is liable for a complaint survey fee of $400.00.

PRELIMINARY STATEMENT

The Agency for Health Care Administration (Agency) issued a two-count Administrative Complaint dated March 18, 2003.

Count I of the Administrative Complaint alleged that Respondent, Safe Haven, d/b/a Carden House (Carden House or facility), failed to ensure daily observations of a resident's activities in violation of Florida Administrative Code Rule

58A-5.0182(1)(b). Count II of the Administrative Complaint alleged that Carden House failed to maintain a written record of any significant changes in two residents' normal appearance or state of health in violation of Florida Administrative Code

Rule 58A-5.0182(1)(e). For each of the alleged violations or deficiencies, the Agency seeks to impose an administrative fine of $5,000.00, or a total of $10,000.00. Additionally, in the Administrative Complaint, the Agency seeks to impose a complaint investigation fee of $400.00.

Carden House challenged the allegations and the imposition of the administrative fines and timely requested a formal administrative hearing. On or about May 22, 2003, the matter was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the formal hearing and prepare a recommended order.

At hearing, the Agency presented the testimony of two witnesses: Sharon McCrary, an Agency health facility evaluator, and Pamela Arolmola, an Agency health facility evaluator supervisor. Carden House presented the testimony of Ms. Bridget LaPoint, owner of Carden House. The Agency offered and had two exhibits received into evidence. Carden House offered no exhibits.

The Transcript of the proceeding was filed on December 23, 2003. At the conclusion of the hearing, by agreement of the parties, the time for filing proposed recommended orders was set for ten days after the Transcript was filed. The Agency timely filed a Proposed Recommended Order. Carden House did not file a proposed recommended order.

FINDINGS OF FACT

1. The Agency is the state agency charged with the responsibility of licensing assisted living facilities in Florida and with evaluating such facilities to ensure that they are in compliance with state regulations.

2. Carden House is an assisted living facility in

   
   

   St. Petersburg, Florida, licensed by, and subject to, regulation by the Agency.

3. On January 10, 2003, the Agency conducted a complaint investigation of Carden House following a complaint made to the Agency hotline. The complaint alleged that a resident at the facility (Resident #1) was "found dead on the bed" and that the facility had failed to properly supervise the resident.

4. Sharon McCrary conducted the complaint investigation at Carden House. As part of the survey, Ms. McCrary interviewed staff at the facility regarding Resident #1 and reviewed documentation provided by the staff. Based on information obtained by staff at the facility, the Agency found that on January 9, 2003, at 8:30 a.m., Resident #1 was found dead by his caseworker, who had come to the facility to take the resident to an appointment.

5. As a result of Ms. McCrary's interviews with staff, the Agency also made the following finding in its report of the investigation:

   According to information received from staff interview, Resident #1 had been sick during the holidays but attempts by his family member to take him to a physician were met with refusals by the resident.

   According to the staff [Tina], another staff member had told her that on 1/8/03 the resident [Resident #1] was coughing badly and couldn't catch his breath. Resident #1

   reportedly told staff that he wasn't feeling well and was going to his room to go to sleep.

   
   

6. Tina, a facility staff member, was interviewed by Ms. McCrary and provided the above information regarding

   Resident #1's condition on January 8, 2003. However, Tina was not on duty or present at the facility on January 8, 2003.

   Therefore, she had no first-hand knowledge regarding

   
   

   Resident #1's condition on January 8, 2003, the day prior to the resident's death.

7. Bridget LaPoint was not at the facility during the investigation and, thus, was not interviewed by Ms. McCrary prior to the report being written. However, Ms. LaPoint was aware that Resident #1 had not been feeling well during the holidays, two weeks prior to his death. Moreover, at that time, Ms. LaPoint informed the resident's mother and his caseworker of his condition. During this time, Resident #1's mother had attempted to take him to the doctor, and he refused to go.

8. On the evening of January 8, 2003, the night before Resident #1 was found dead in his bed, Ms. LaPoint saw Resident #1 and talked to him. During that conversation,

   Resident #1 told Ms. LaPoint that he was feeling much better and had a doctor's appointment the next day.

9. The Complaint summary indicated that Resident #1 was last heard at about 3:00 a.m. on January 9, 2002, when asking someone

   for cigarettes. However, this factual allegation was not verified by the Agency evaluator or substantiated at hearing.

10. On the morning of January 9, 2003, Resident #1 did not come down for breakfast, which at Carden House begins at

    8:00 a.m. As of 8:30 a.m., no staff member had yet checked on Resident #1 to see if he wanted to come down for breakfast.

    Prior to any facility staff member's checking on Resident #1, his caseworker arrived at the facility and went to the resident's room to take him to a doctor's appointment. When the caseworker entered Resident #1's room at about 8:30 a.m., she discovered that the resident was dead.

11. Ms. LaPoint had personal knowledge of Resident #1's health situation during the two weeks prior to his death, contacted appropriate individuals about taking him to the doctor, and spoke with him about his condition the night before he died. However, the facility provided no documentation or other written information to the Agency regarding Resident #1's health or any change in his health status.

12. As a result of the complaint investigation, the Agency concluded that Carden House failed to maintain documentation that it was aware of Resident #1's changed health status or his illness and the facility's interventions, such as contacting his family, physician, or caseworker. The Agency further concluded that the lack of such documentation indicated that the facility

    had not monitored the Resident #1 on a daily basis, assisted him, or checked on his condition.

13. During the investigation of Carden House, Ms. McCrary accompanied a facility staff member into the room of

    Resident #3. When Ms. McCrary entered his room, who was diagnosed as suffering from severe chronic schizophrenia, Leucopoenia, anemia, and gerd, Resident #3 acted in a very threatening manner and yelled obscenities toward her.

14. As part of her complaint investigation, Ms. McCrary interviewed a facility staff member who reported that Resident #3 had also threatened her. The staff member apparently did not provide the dates, circumstances, or the nature of those threats to the Agency evaluator. However, the staff member told Ms. McCray that, lately, Resident #3 had not been taking his medication.

15. A review of Resident #3's records confirmed that in December 2002 and in January 2003, the resident had not taken his medicine as prescribed. It is not unusual for residents such as Resident #3 to refuse to take their medication. However, when a resident refuses to take his medication, that information should be noted on his or her record. In the case of Resident #3, no such notations appeared on his records. There was no indication in the resident's records or other facility documents that the facility had contacted the

    resident's family, caseworker, or health care provider regarding his behavior, condition, or refusal to take his medication.

16. As a result of the complaint investigation, the Agency cited Carden House for violating two minimum standards. First, the Agency alleged that, with regard to Resident #1, the facility failed to provide daily observation of the activities of the resident while on the premises and was not aware of the general health, safety, and physical and emotional well-being of the individual. Second, the Agency alleged that, with regard to Resident #1 and Resident #3, the facility failed to maintain a written record of significant changes in the residents' normal appearance or state of health.

17. The Agency classified the two deficient practices as Class II deficiencies because the Agency determined that the violations or deficiencies were serious and posed a great potential for harm to the residents.

18. The Agency gave Carden House until January 31, 2003, to correct the alleged deficiencies.

19. For each of the two alleged Class II violations, the Agency seeks to impose the maximum fine of $5,000.00, for a total of $10,000.00.

20. The Agency seeks to impose a survey fee of $400.00 against Carden House for investigating the complaint.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties of this proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes (2003).

22. The Agency is authorized to license, evaluate, and investigate complaints involving assisted living facilities in the State of Florida. See §§ 400.407(1) and 400.434, Fla. Stat. (2002). The Agency is also authorized to impose administrative fines on facilities for violations of applicable standards.

    See § 400.419, Fla. Stat. (2002).

    
    

23. In the two-count Administrative Complaint, the Agency alleges that Carden House was not in compliance with the minimum requirements set forth in Florida Administrative Code

    Rule 58A-5.0182(1)(b) and (e), which provides in relevant part as follows:

    1. SUPERVISION. Facilities shall offer personal supervision, as appropriate for each resident, including the following:

       
       

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       (b) Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the individual.

       * * *

       
       

       (e) A written record, updated as needed, of any significant changes in the resident’s normal appearance or state of health, any illnesses which resulted in medical attention, major incidents, changes in the method of medication administration, or other changes which resulted in the provision of additional services.

       
       

24. Section 400.419, Florida Statutes (2002), provides that when minimum standards are not met, the deficiencies shall be classified according to the nature of the violations. Subsection 1 of that provision delineates and defines the three categories of violations, with Class III violations as the least severe. In this case, the Agency has designated the two alleged deficiencies cited in the Administrative Complaint as Class II violations.

25. Class II violations are defined in Section 400.419(1)(b), Florida Statutes (2002), which provides in relevant part the following:

    1. Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows:

       
       

       * * *

       
       

       (b) 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 $,5000. . . .

       
       

26. In this case, the Agency seeks to impose the maximum administrative fine authorized for a Class II violation,

    $5,000.00 for each of the two alleged violations, or a total of

    
    

    $10,000.00.

    
    

27. Section 400.419(2), Florida Statutes (2002), provides the factors that must be considered to determine if a penalty should be imposed and the amount of the fine. That section provides the following:

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

       
       

       1. The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.

          
          

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

          
          

       3. Any previous violations.

          
          

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

          
          

       5. The licensed capacity of the facility.

28. The burden of proof in this proceeding is on the Agency. In order to prevail, the Agency must establish by clear and convincing evidence the underlying factual allegations that are the basis for the alleged violations. See Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

29. The "clear and convincing" standard requires:

    
    

    [T]he 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).

    
    

30. With regard to Count I of the Administrative Complaint, the Agency failed to meet its burden of proof. The evidence did not establish that the facility failed to monitor and observe Resident #1 and that it was unaware of his health and physical condition.

31. Contrary to the assertions of the Agency, the evidence established that during the time in question, facility staff was aware of the resident's condition, observed him on a regular basis, and sought to have him and/or his family obtain medical services for him during the period when he was not feeling well.

    The evidence further established that Resident #1 refused to go to the doctor. The undisputed evidence established that

    Ms. LaPoint talked to the resident about his condition after dinner on January 8, 2003, the night before he died, and he indicated that he was feeling better.

32. With regard to the allegation in Count II of the Administrative Complaint, the Agency has met its burden of proof. The clear and convincing evidence established that Carden House failed to maintain records for Resident #1 and Resident #3, as required by Florida Administrative Code Rule 58A-5.0182(1)(e). At the time of the investigation, the facility presented no records which documented the significant changes in the residents' normal physical appearance or health status, even though these changes were apparent and known to facility staff. The facility also presented no such records or documentation at this proceeding.

33. In arriving at the appropriate penalty in the instant case, consideration has been given to the guidelines set forth in Section 400.419(2), Florida Statutes (2002). Based on a balancing of these guidelines, an appropriate penalty in this case is an administrative fine of $1,500.00.

34. The Agency also seeks to impose a survey fee in the amount of $400.00 against Carden House pursuant to Section 400.419(9), Florida Statutes (2002). That provision authorizes

such a fee to cover the cost of conducting the initial complaint investigation that results in the finding of a violation that was the subject of the complaint. In the instant case, the Agency failed to establish that the violation found during the investigation was the subject of the complaint and, thus, no such fee may be imposed.

RECOMMENDATION

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

RECOMMENDED that the Agency of Health Care Administration enter a final order finding that Carden House violated Florida Administrative Code Rule 58A-5.0182(1)(e) and imposing a fine of

$1,500.00.

DONE AND ENTERED this 30th day of January, 2004, in Tallahassee, Leon County, Florida.

S

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 30th day of January, 2004.

COPIES FURNISHED:

Bridget LaPoint Carden House

2349 Central Avenue

St. Petersburg, Florida 33713

Gerald L. Pickett, Esquire

Agency for Health Care Administration Sebring Building, Suite 330K

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701-3219

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: 03-001944

Orders for Case No: 03-001944