STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 05-2031

)

SHIBOR GROUP, INC., d/b/a )

ABUNDANT LIFE ALF, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case by video teleconference on January 10, 2006, with the parties appearing from Lauderdale Lakes, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lourdes A. Naranjo, Esquire

Agency for Health Care Administration

8350 Northwest 52nd Terrace Suite 103

Miami, Florida 33166

For Respondent: Abimbola Orukotan

Qualified Representative 7040 Fillmore Street

Hollywood, Florida 33024 STATEMENT OF THE ISSUE

Whether the Respondent, Shibor Group, Inc., d/b/a

Abundant Life ALF (Respondent or Abundant Life), committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed. The Petitioner, Agency for Health Care Administration (Petitioner or AHCA) asserts an administrative fine in the amount of $1,313.00 ($1,000.00 fine and $313.00 survey fee) should be imposed in this matter.

PRELIMINARY STATEMENT

The Petitioner initiated this case by an Administrative Complaint that was executed on March 7, 2005. The multi-count complaint alleged that the Respondent had committed Class III violations regarding operating standards for the Abundant Life facility. More specifically, the complaint argued that the facility had failed to give at least 45 days' notice to residents who were to relocate or terminate residency and had failed to make available, at the time of a survey, relevant documents showing personnel were free from tuberculosis. Both of these allegations were based upon documents made available to AHCA personnel who reviewed the facility’s records.

The Respondent timely denied the allegations of the complaint and sought an administrative hearing to contest the imposition of any fine. The case was forwarded to the Division of Administrative Hearings for formal proceedings on June 2, 2005. The case was set for hearing for August 15, 2005. Thereafter, the case was continued on two occasions.

At the hearing, the Petitioner presented testimony from Dr. Glen Siegel (by deposition), Dr. Armando Roca (by deposition), James McKee, a health facility evaluator employed by AHCA, and John Sanders, also a health facility evaluator with the Petitioner. The Petitioner’s Exhibits 1-12 were admitted into evidence. The Respondent provided testimony from Sherifat Orukotan, the president and administrator of Shibor Group, Inc., d/b/a Abundant Life ALF. The Respondent’s Exhibits 1-5 were received in evidence. The parties also submitted a Joint Exhibit 1 that was admitted in evidence.

The transcript of the proceeding was filed with the Division of Administrative Hearings on January 23, 2006. Thereafter, the court reporter filed the exhibits to the hearing (previously omitted in error from the transcript) and the parties sought additional time within which to file their proposed recommended orders. The deposition testimony of Sherifat Orukotan was filed on January 26, 2006. The parties were granted leave until February 13, 2006, to file their proposed orders. Both timely filed Proposed Recommended Orders that have been considered in the preparation of this Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the authority to regulate and administer laws regarding the

   operation of assisted living facilities (ALF) within the State of Florida. This authority extends to all matters governed by or complained of in this case.

2. The Respondent operates a six-bed ALF located at 7040 Fillmore Street, Hollywood, Florida. Abundant Life is licensed and is subject to all laws governing the operation of ALFs within the State of Florida.

3. In accordance with Florida law, the Respondent is required to maintain records at its facility so that duly authorized persons from the Petitioner can review the records to assure compliance with the various regulations and rules governing the operation of ALFs.

4. An administrator of an ALF is charged with knowing the pertinent laws and with maintaining the appropriate records to show compliance with such rules and regulations. Sherifat Orukotan is the administrator of the Abundant Life facility in this case.

5. Generally speaking there are two types of surveys performed at an ALF. “Survey” is another word for “inspection” or “investigation.” The first type of survey is a routine review of the facility and a verification of its records to assure compliance with law. These surveys are performed on a scheduled basis for purposes of licensure or

   relicensure. Typically, before a renewal of a license, the facility is “surveyed.”

6. The Respondent pursues a second type of survey when it receives a complaint regarding the licensed facility. The complaint causes a health facility evaluator to be directed to the licensed facility to review the complaint in the context of the operation of the home. In this case, both of these types of surveys were involved.

7. On February 23, 2004, Mr. Sanders conducted a complaint survey at the facility. This matter involved an 84- year-old resident at Abundant Life who had received a notice on February 12, 2004, that directed her to leave the facility. The notice to this resident provided, in pertinent part, “You are here by given 30days to leave the facility, Starting from 02-12-04.” (Errors in original.)

8. The subject resident required the highest level of care in that she needed assistance with all activities of daily living. She also suffered from an altered mental status that meant supervision and assistance were required.

9. At the time of the survey, Ms. Orukotan was advised that the pertinent provisions of Florida law require a minimum of 45 days' notice to a resident who is being requested to vacate. Ms. Orukotan did not acknowledge knowing the 45-day requirement. The contract forms used by Ms. Orukotan

   represented a resident would only be provided with 30 days' notice.

10. As a result of the surveyor’s findings regarding this resident, the Respondent was given until March 24, 2004, to correct the violation found on February 23, 2004.

11. When Mr. Sanders did the follow up survey, the Respondent had corrected the problem by extending another 15 days to the resident so that a total of 45 days notice was provided.

12. On December 22, 2004, Mr. Sanders responded to the Respondent in connection with another complaint. This complaint dealt with another resident.

13. The resident, a 62-year-old male stroke victim, was scheduled to leave the facility on December 19, 2004. The resident had paid for accommodations through that date.

14. On December 14, 2004, however, Ms. Orukotan had locked the resident out of the facility. Due to a dispute with the resident over expenses that were claimed to be owed, the administrator did not want the resident to come back into the home.

15. As it happened, the resident’s girlfriend had come to the facility on December 14, 2004, and picked him up. At that time, according to the chart notes for the resident, Ms. Orukotan told the girlfriend she would not let the man back in

    unless the facility received additional payment. Ms. Orukotan gave the girlfriend the man’s medications and refused to open the door for him when they returned to the home at around 7:15 p.m.

16. Only after police came to the scene did Ms. Orukotan relent and let the resident back into the home. When Mr. Sanders met with Ms. Orukotan regarding the incident, she provided the chart notes that chronicled the events as outlined above. (See Petitioner’s Ex. 6) As a result, Mr. Sanders cited the Respondent for a repeat violation, as he deemed this situation the same as the February 23, 2004, incident. A 45-day notice had not been provided to the resident. This was the second time the Respondent had failed to provide a resident with sufficient notice to vacate.

17. Both of the citations regarding the 45-day notice issue were given as Class III violations. The Petitioner maintains that failure to provide the requisite notice may put a resident at risk for physical or emotional injury.

18. Generally speaking, residents of ALFs are there because they are frail or unable to meet all of their daily living needs without assistance. A discharged resident without appropriate accommodations cannot provide for him or herself. Many residents are elderly or, like the second resident in this case, require assistance while they recover

    from a medical event. Finding a proper place to reside under these circumstances can prove difficult. The 45-day requirement is to assure that sufficient time is given to the relocating resident.

19. Persons who work in ALFs must be free from tuberculosis (TB). Tuberculosis is a highly communicable disease that is very serious, especially to frail or at-risk populations. In order to diagnose whether or not someone has TB, a person must have some medical evaluation. The most common test for TB is a skin screening. This “TB skin test” is routinely administered and is considered a credible proof of whether a person should be considered a health risk. Unfortunately, the TB skin test does not work, or is inadequate, to provide a credible medical response if the person taking the skin test has ever received a BCG vaccine.

20. The BCG vaccine causes a person to register a false positive on the TB skin test. Accordingly, only a chest X-ray or a sputum test (not relevant to the instant case) could rule out TB under that situation. In this case, because

    Ms. Orukotan had received a BCG vaccine at some point in her history, she was required to present evidence of a chest X-ray to establish that she was TB-free. In order for

    Ms. Orukotan’s doctor to document annually that she is free from TB, the administrator must have a chest X-ray every year.

    This requirement is known to Ms. Orukotan because she had been cited for (and had corrected) this deficiency prior to January 11, 2005.

21. On January 11, 2005, Mr. Sanders requested the valid annual documentation showing that Ms. Orukotan was free from TB. At that time the only report provided to him was a statement from Dr. Siegel that stated Ms. Orukotan was free from “communicable disease.” Ms. Orukotan had not had a chest X-ray within a year of the January 11, 2005, survey date.

22. On January 11, 2005, the administrator did not have any documentation that stated she was free from TB on any date within a year of that time.

23. On January 14, 2005, Ms. Orukotan obtained a TB screening and chest X-ray from Dr. Siegel to document she was free from TB. This documentation was provided to AHCA on the follow-up survey date. Based upon her prompt response, the deficiency cited was deemed corrected.

24. A chest X-ray is not valid for two years to rule out

    
    

    TB.

    
    

25. On January 11, 2005, Ms. Orukotan had not had a

    
    

    chest X-ray within two years.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has

    jurisdiction over the parties to and the subject matter of these proceedings. § 120.57(1), Fla. Stat. (2005).

27. In this case, the Petitioner bears the burden of proof. AHCA must establish by clear and convincing evidence that the Respondent committed the violations alleged in the Administrative Complaint. See Department of Banking and Finance, Division of Securities and Investor Protection v Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996).

28. 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). The clear and convincing standard requires that 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. Additionally, 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. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994). In this case, the Petitioner has met that burden.

29. Section 400.428(1)(k), Florida Statutes (2003), provides, in pertinent part:

    400.428 Resident bill of rights.--

    1. No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to:

       
       

       * * *

       
       

       (k) At least 45 days' notice of relocation or termination of residency from the facility unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care or the resident engages in a pattern of conduct that is harmful or offensive to other residents. In the case of a resident who has been adjudicated mentally incapacitated, the guardian shall be given at least 45 days' notice of a nonemergency relocation or residency termination. Reasons for relocation shall be set forth in writing. In order for a facility to terminate the residency of an individual without notice as provided herein, the facility shall show good cause in a court of competent jurisdiction.

       
       

30. Florida Administrative Code Rule 58A-5.019, provides, in part:

    1. ADMINISTRATORS. Every facility shall be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including the management of all staff and the provision of adequate care to all residents as required by Part III of Chapter 400, F.S., and this rule chapter.

       
       

       * * *

       
       

    2. STAFF.

       (a) Newly hired staff shall have 30 days to submit a statement from a health care provider, based on a examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis. Freedom from tuberculosis must be documented on an annual basis. A person with a positive tuberculosis test must submit a health care provider’s statement that the person does not constitute a risk of communicating tuberculosis. Newly hired staff does not include an employee transferring from one facility to another that is under the same management or ownership, without a break in service. If any staff member is later found to have, or is suspected of having, a communicable disease, he/she shall be removed from duties until the administrator determines that such condition no longer exists.

       [Emphasis added.]

       
       

31. Florida Administrative Code Rule 58A-5.024 provides, in pertinent part:

    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.

    
    

    * * *

    
    

    1. 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.

    [Emphasis added.]

32. Section 400.419, Florida Statutes (2004), provides, in part:

    1. The agency shall impose an administrative fine in the manner provided in chapter 120 for any of the actions or violations as set forth within this section by an assisted living facility, for the actions of any person subject to level 2 background screening under s. 400.4174, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.

    2. 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:

       1. Class "I" 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 present an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. The agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation. A fine may be levied notwithstanding the correction of the violation.

       2. 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. The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5,000 for each violation. A fine shall be levied notwithstanding the correction of the violation.

       3. 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. The agency shall impose an administrative fine for a cited class III violation in an amount 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.

          
          

          * * *

          
          

    3. 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.

          
          

          * * *

          (10) In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility's biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s.400.428(3)(c) to verify the correction of the violations.

          
          

33. In this case the Petitioner has charged the Respondent with Class III violations. These are repeat violations. There is no dispute that the Respondent corrected the violations. In every instance the Respondent, when notified of the violation, took appropriate care to correct the problems.

34. In the case of the elderly resident who the Respondent sought to discharge without 45 days' notice, when the Respondent was advised it could not, by law, give less than 45 days' notice, it corrected the problem and afforded the resident the requisite time. Nevertheless, the violation occurred.

35. The Petitioner did not seek to impose a penalty after the first incident. The administrative fine at issue in

    this case stems from the recurrence of the same violation.

    
    

    The second incident (locking the resident out without 45 days' notice), a Class III violation, supports an administrative fine. Police intervention should not be necessary to secure admittance to an ALF for its residents. There is no justification for refusing admittance when the notice requirements have not been met. The Respondent has provided no credible explanation for why this resident was not afforded the requisite notice.

36. As to the second Class III violation, the Respondent failed to maintain records that established the administrator was free from TB. This administrator had been cited for this violation on a prior inspection and knew the rule. Annual chest X-rays are a disadvantage in that they take time and are an expense. Nevertheless, because the skin TB test is ineffective, this administrator must submit to verification for TB purposes. At the time of the survey, the administrator was unable to provide sufficient records to demonstrate the annual statement had been obtained. In fact, the administrator had not had a chest X-ray within an appropriate time. That she promptly corrected the deficiency is commendable. That the Respondent had to, once again, remind the Respondent of the requirements of the law supports the conclusion of a repeated Class III violation.

37. As to each violation or deficiency the Respondent’s surveyor was required to revisit the facility to assure that the corrections had been made. To its credit the Respondent did comply with the directives of AHCA. Nevertheless, the Respondent incurred expenses and lost time to verify the facility performed as directed. The statute provides for the recovery of these expenses in the form of a survey fee. See § 400.419(10), Fla. Stat. (2004). It is concluded the Respondent has established that it is entitled to recover this amount also.

RECOMMENDATION

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 against the Respondent that imposes an administrative fine in the amount of $1000.00 for the repeated Class III violations and a survey fee that equals the lesser of one half of the facility's biennial license and bed fee or $500.00.

S

DONE AND ENTERED this 11th day of April, 2006, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 11th day of April, 2006.

COPIES FURNISHED:

Sherifat J. Orukotan Shibor Group, Inc.

6641 Southwest 8th Street Pembroke Pines, Florida 33023

Lourdes Naranjo, Esquire

Agency for Health Care Administration Spokane Building, Suite 103

8350 Northwest 52nd Street Miami, Florida 33166

Richard Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Christa Calamas, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431

2727 Mahan Drive

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: 05-002031

Orders for Case No: 05-002031