STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
CRISTAL PALACE RESORT PB, LLC,
Respondent.
/ CRISTAL PALACE RESORT PB, LLC,
Case Nos. 17-2149
17-2164
vs.
Petitioner,
Case No. 17-3849
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
/
RECOMMENDED ORDER
On February 26 through 28, 2018, Administrative Law Judge Lisa Shearer Nelson conducted a hearing pursuant to section 120.57(1), Florida Statutes (2017), in Titusville, Florida.
APPEARANCES
For Agency for Health Care Administration:
Thomas J. Walsh, II, Esquire Nicola Brown, Esquire
Agency for Health Care Administration Suite 330D
525 Mirror Lake Drive North St. Petersburg, Florida 33701
For Cristal Palace Resort PB, LLC:
John E. Terrel, Esquire John E. Terrel, P.A. Suite 11-116
1700 North Monroe Street Tallahassee, Florida 32303
STATEMENT OF THE ISSUES
The issues to be determined are whether Cristal Palace Resort PB, LLC (Cristal Palace), committed the statutory or rule violations alleged in the Administrative Complaints in Case
Nos. 17-2149 and 17-2164, and in the Second Amended Notice of Intent to Deny docketed as Case No. 17-3849; and, if so, what penalty is authorized for the violations proven.
PRELIMINARY STATEMENT
On September 30, 2016, the Agency for Health Care Administration (Agency or AHCA) issued an Administrative Complaint (First AC) against Cristal Palace, seeking to impose fines and a survey fee, and to revoke its license. On October 20, 2016, Cristal Palace disputed the allegations in the First AC and requested a hearing pursuant to section 120.57(1).
On or about January 20, 2017, the Agency served a second Administrative Complaint (Second AC) against Cristal Palace, also seeking fines, a survey fee, and revocation. On February 9, 2017, Cristal Palace disputed the allegations in the Second AC and requested a section 120.57(1) hearing.
The Agency referred both the Administrative Complaints to the Division of Administrative Hearings (Division) in April 2017, and the cases were docketed as Case Nos. 17-2149 and 17-2164, respectively. On April 19, 2017, the cases were consolidated for hearing, and the hearing was scheduled for June 28 and 29, 2017, in Titusville, Florida. At the request of both parties, the cases were rescheduled for August 9 through 11, 2017.
On June 5, 2017, the Agency issued a Notice of Intent to Deny (NOI) for renewal. On June 28, 2017, Cristal Palace filed a Petition for Formal Administrative Hearing (Petition), and on July 6, 2017, the NOI and the corresponding Petition were forwarded to the Division for assignment of an administrative law judge and docketed as Case No. 17-3849. On July 25, 2017, the NOI was consolidated with the two Administrative Complaints, and on July 28, 2018, the consolidated proceedings were rescheduled for hearing on September 26 through 29, 2017.
In September 2017, the parties again requested a continuance, due to the impact of Hurricane Irma, which caused the closure of several of the Agency’s offices statewide. The case was rescheduled to be heard December 5 through 8, 2017. The parties were allowed to amend the NOI and the Petition with respect to what became the Second Amended Notice of Intent to Deny (Second Amended NOI).
On November 20, 2017, the Agency filed an Emergency Motion for Continuance, advising that it had just learned that two of its pivotal witnesses would be unavailable for hearing as scheduled, both based on medical issues that would prevent their being present at the hearing in December. Although Cristal Palace objected to this continuance, good cause was found based on the reasons given for unavailability, and the case was rescheduled a final time for February 26 through March 1, 2018. The parties were advised that no further continuances would be granted.
The parties filed a Joint Pre-hearing Stipulation on February 19, 2018. The hearing commenced on February 26, 2018, and concluded on February 28, 2018. At hearing, the Agency presented the testimony of Lorraine Henry, Colleen Monroe, Vanessia Bulger, Lorienda Crawford, Nitnirun Chaokasem, Vilma Pellot, and Linda Gulian-Andrews. The Agency’s Exhibits numbered
1 through 17 were admitted into evidence.1/ Cristal Palace presented the testimony of Mirtha Cordova, Dramisha Jackson, Shelia Mobley, Coralie Prince, and Nuri Dorra. Cristal Palace’s Exhibits numbered 1 through 7, 9 through 17, 20 through 32, 34 through 36, 38 through 44, 47, 50, and 51 were admitted into evidence.
The five-volume Transcript of the hearing was filed with the Division on April 4, 2018. At the request of the parties, the deadline for submission of the proposed recommended orders was
extended to 20 days from the filing of the Transcript. Both parties timely filed their Proposed Recommended Orders on
April 24, 2018, and by Order dated April 5, 2018, were permitted to file proposed recommended orders that are 60 pages in length. Both submissions were considered in the preparation of this Recommended Order. All references to the Florida Statutes are to the 2015 codification, unless otherwise indicated. It is noted that statutes at issue have not changed in any way material to this proceeding since that time.
FINDINGS OF FACT
Based upon the oral and documentary evidence presented at the final hearing, the following facts are found.
The Agency is the state agency charged with licensing of assisted living facilities (ALFs) in Florida pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. The Agency is charged with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure and operation of ALFs.
The Survey Process
In furtherance of its statutory directive, the Agency conducts inspections, which are commonly referred to as surveys, of licensed providers and applicants for licensure to determine whether the applicant or licensee is in compliance with the
regulatory scheme. Surveys can be in response to a complaint or to determine compliance as part of the biennial re-licensure process. Surveyors are Agency personnel who have been trained to conduct interviews, review documentation, and make observations at the surveyed facility as part of this process. Regardless of the reason for the survey, any noted issues are written up in a Statement of Deficiencies prepared by the surveyor or surveyors participating in the survey and referred to here as the survey documents. Deficiencies are classified by a “tag,” which is an identifier of the regulatory area found to be deficient. Where deficiencies are noted, the facility is usually afforded 30 days to correct any identified non-compliance. Section 408.811(5) also provides that the Agency may require submission of a plan of correction, which, if required, must be submitted within
30 calendar days after notification unless an alternative time frame is required.
When a deficiency is noted during a survey, it is assigned a “class” to indicate its severity and the gravity of its probable effect on clients. The classes are established in section 408.813(2) and (3) as follows:
(2)(a) Class “I” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines present an imminent danger to the clients of the provider or a substantial probability that death or serious physician 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 as provided by law for a cited class I violation. A fine shall be levied notwithstanding the correction of the violation.
Class “II” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A fine shall be levied notwithstanding the correction of the violation.
Class “III” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of clients, other than class I or class II violations. The agency shall impose an administrative fine a provided in this section for a cited class III 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, a fine may not be imposed.
Class “IV” violations are those conditions or occurrences related to the operation and maintenance of a provider or to required reports, forms, or documents that do not have the potential of negatively affecting clients. These violations are of a type that the agency determines do not threaten the health, safety, or security of clients. The agency shall impose an administrative fine as provided in this section for a cited class IV
violation. A citation for a class IV violation must specify the time within which the violation is required to be corrected. If a class IV violation is corrected within the time specified, a fine may not be imposed.
The agency may impose an administrative fine for a violation that is not designated as a class I, class II, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include:
Violating any term or condition of a license.
Violating any provision of this part, authorizing statutes, or applicable rules.
Exceeding licensed capacity.
Providing services beyond the scope of the license.
Violating a moratorium imposed pursuant to section 408.814.
The number of surveyors that participate in a survey varies, based on the capacity of the facility to be surveyed. In the 17 survey documents at issue in this case, there were multiple surveyors at each visit.
Cristal Palace
Cristal Palace is a licensed ALF located in Palm Bay, Florida. Cristal Palace first opened in May 2015, under the ownership of Nuri Dorra. Mr. Dorra has experience in a number of industries, but prior to opening Cristal Palace, had no experience in running an ALF.
In May 2015, Mr. Dorra became dissatisfied with the existing staff’s level of compliance with agency rules. On May 26, 2015, he wrote to AHCA requesting that the facility be
placed in inactive status and assisted in relocating the facility’s four residents to another ALF, so he could use the inactive period to restructure the organization and, hopefully, bring things into compliance. Cristal Palace re-opened in August 2015.
Cristal Palace is a 252-bed facility in what was once a hotel. During the course of the surveys, the census at Cristal Palace ranged from four residents to no more than 52 residents.
The two Administrative Complaints and the Second Amended NOI are the result of a series of surveys beginning August 26, 2015, through January 15, 2017, in which the Agency cited Cristal Palace for a variety of deficiencies. The First AC charges Cristal Palace with two class II deficiencies, six uncorrected class III deficiencies, and seven unclassified deficiencies. The Second AC charges one class II deficiency and three unclassified deficiencies. The Second Amended NOI alleges that there are multiple class III and unclassified violations that remain uncorrected. To ensure that only those violations actually charged in the Administrative Complaints and the Second Amended NOI are addressed, the factual allegations are addressed count- by-count as alleged in the charging documents.
First AC
Count I
Count I of the First AC contains allegations regarding resident 5 and concerns related to the administration of insulin.
Colleen Monroe is a now retired surveyor who participated in a survey conducted August 12, 25, and 26, 2015, for which a survey document dated August 26, 2015, was prepared. Ms. Monroe has been a registered nurse since 1971.
While Ms. Monroe was touring the facility on or about August 12, 2015, she saw paramedics enter resident 5’s room, and she followed them in and talked to resident 5. Resident 5 was alert and oriented, and indicated that her blood sugar was high. While Ms. Monroe was present, resident 5’s blood sugar was taken, and it was over 500. Staff for Cristal Palace had called 911, and resident 5 was transported by ambulance to the hospital.
Ms. Monroe reviewed the resident records for resident 5 and believed, based on her review of the physician’s orders and the Medication Observation Record (MOR), that the resident was not receiving the insulin her doctor had ordered. She testified that she reached this conclusion because the physician had ordered medium sliding scale insulin and the MORs did not indicate that she was receiving the insulin.
An MOR is a document where the staff member giving insulin would document the time of day, and dosage of medication
given. The MOR is a chart: on the left hand side is the order for the medication to be given with blocks for each day of the month. Staff administering the medication would initial the appropriate block on the front and sign the back.
Ms. Monroe testified that the law does not allow unlicensed staff (defined by statute to include medical technicians (med techs) and certified nursing assistants (CNAs)) to draw up insulin, but neither her testimony nor the First AC, with respect to Count I, identifies the statute or rule that addresses this particular issue.2/ She testified that resident 5 would be unable to draw up her own insulin because of her retinopathy diagnosis, and that this patient needed a level of care that required nursing to be available at all times. However, there was no evidence regarding the progression of this particular patient’s retinopathy, and the extent to which it impaired her vision at the time of the survey.
Ms. Monroe was not in the room when the 911 call was made and did not recall looking at the observation logs, but believed she would have looked at everything while she was there. She was not present when the resident’s insulin was given. No evidence was presented to indicate whether the insulin provided to resident 5 before meals had to be drawn up for each dose (which requires a nurse) or whether a pre-filled insulin syringe or pen was used (which does not).
The Agency did not provide the doctor’s order, the MOR, or the resident’s health assessment form, commonly referred to as an “1823.” Although the First AC refers to an interview with the facility’s marketing director regarding resident 5’s admission, that individual did not testify, and any reference to the interview in the survey or in Ms. Monroe’s testimony is hearsay.3/
Cristal Palace supplied a copy of resident 5’s 1823.
The form, which was completed on August 6, 2015, and signed by resident 5’s physician, indicated that the resident did not require 24-hour nursing care, and that she needed assistance with her medications as opposed to needing medication administration. Ms. Monroe disagreed with the 1823 as completed.
A partial MOR4/ for resident 5 indicates that she was provided Humulog insulin each day since her admission on August 8, 2015, at 8 a.m., noon, and 6 p.m. On August 12, 2015, the MOR reflects that the insulin was provided in the morning at 8:00, as well as 20 units of Humulog at 9:22 a.m., at the patient’s request. While Ms. Monroe testified that she would have expected the insulin to be given prior to each meal, there was no evidence presented to indicate what time meals were served in relation to the administration of insulin noted in the record. However, the administration times noted in the MOR correspond to what one could infer to be appropriate meal times.
The Agency did not prove a class II violation with respect to Count I.
Count II
Count II of the First AC addresses whether the supervision of the administrator of the facility is adequate. It incorporates the allegations of Count I and asserts that Cristal Palace’s administrator failed to supervise and administer the operation and maintenance of the facility through a series of allegations, including the management of all staff and the provision of appropriate care to all residents, as required by law. Specifically, paragraph 23 alleges that the administrator failed to ensure that a licensed nurse was available to administer medications to resident 5. To support the allegation, the First AC restates allegations related to the MOR, physician’s order, and 1823 form for resident 5, as well as statements attributed to a marketing director and “nurse C,” neither of whom are identified by name or testified at hearing.
Count II alleges at paragraph 24 that the administrator failed to ensure that the facility maintained accurate and up-to- date MORs, based upon staff’s failure to document the administration of Tylenol 324 for resident 5. No testimony was presented at hearing regarding the administration of Tylenol to any resident.
On August 12, 2015, the day that resident 5 was taken by ambulance to the hospital, Ms. Monroe walked back into
resident 5’s room once the ambulance left. She found resident 5’s medication in an unlocked refrigerator in the room. She did not know whether the facility staff returned to her room to retrieve the medication and lock it up after the EMTs took resident 5 out of her room to the ambulance. The evidence presented did not indicate whether this resident kept her medication in her room, or whether the facility typically stored her medication centrally.
If the resident typically kept insulin in her room, which is permitted under the Agency’s rules and likely to be the case, given that the surveyor found it in her refrigerator, the deficiency would have been caused by the fact that the room was unlocked while the resident was being transported to the ambulance. As noted above, the surveyor did not know whether staff came back to secure the room, and, apparently, did not stay long enough to see. If staff had a choice between locking the room first or attending to the resident to make sure she was being transported safely, and then returning to the room, the latter seems to be the wiser choice.
Count II also cites the administrator for failing to ensure that the facility maintained a written work schedule reflecting the facility’s 24-hour staffing standards. Surveyors
asked for but did not receive the staffing schedule for the month of May 2015, and for August 3 through 12, 2015.
No evidence was presented to support the allegation that the administrator failed to ensure that trained dietary staff was available to prepare meals and to ensure that food service was provided in a safe manner, other than a one-sentence summary of what was stated in the survey. Specifically, no testimony was presented by the Agency regarding unlabeled food or food past its expiration date, or about any county health inspection reports issued in August 2015, related to either food or the physical plant.5/ Cristal Palace presented copies of county health inspections from August 3, 2015 (regarding group care), and August 17, 2015 (for food inspection), indicating that the inspections were satisfactory. Similarly, no evidence was presented regarding lights that were not operable.
Paragraph 31 includes several allegations regarding resident 5’s use of oxygen. Although Ms. Monroe testified that this resident had oxygen ordered, there is no mention of oxygen use in the 1823 form signed by her doctor, and the Agency did not provide any order for oxygen to substantiate this claim.
Moreover, while the surveyor felt that resident 5 should have been a resident receiving extended congregate care (ECC) services for which an ECC plan must be prepared, the determination for ECC services is made based upon the physician’s order as
identified in the 1823, which did not indicate that 24/7 nursing services were required. The surveyor’s disagreement with the 1823 does not serve as a basis for a deficiency.
Surveyor Lorienda Crawford testified that no activities schedule was posted. The applicable rule requires that an activities calendar must be posted somewhere where residents congregate. Ms. Crawford did not identify where she looked for an activities calendar, but she testified that she did not see or hear any activities the day she was there. The facility has not one, but two rooms designed for activities: one with a pool table and one that is a combination game room/craft room where bingo is played, and there were multiple references to activities, such as bingo and karaoke during the hearing. The facility also provided copies of calendars for May, July, and August 2015.6/ The evidence is not persuasive that activities calendars were not posted.
No testimony was presented at hearing that the facility failed to notify AHCA of a change in use of licensed space, or the use of resident rooms by staff members. There was also no testimony at hearing regarding the failure to ensure that the facility was accessible to Agency personnel for inspection.
No testimony was presented at hearing regarding any failure to provide a 45-day notice of discharge to residents, or any problem related to a resident being able to access funds the facility was holding for the resident.
Ms. Monroe testified that the tag against the administrator for failure to maintain control of the facility was considered a class II deficiency, primarily because of the issues related to resident 5 and the administration of insulin. Inasmuch as most of the allegations in Count II were not demonstrated by clear and convincing evidence, a class II deficiency is unwarranted. The only assertion actually proven is that there were no staffing schedules for the periods identified, which would more appropriately be considered a class III. This single deficiency does not show a lack of control by the administrator.
Count III
Count III of the First AC alleges that Cristal Palace failed to conduct appropriate Level 2 background screening and to maintain copies of the screening results in staff personnel files. Section 408.809 requires a Level 2 background screening for the administrator; any financial officer; person with a controlling interest; and any person seeking employment with a facility that may be required to provide personal care or services directly to clients or may have access to client funds, personal property, or living areas. Background screening must be conducted every five years, and the specifics regarding the process to be followed, and the offenses which screening will identify, are extensive. In addition to the background screening for employees for those who have not been screened within the last five years, if an employee
has worked at another licensed facility and has undergone background screening at the other facility, he or she must provide an affidavit that there has not been a break in employment of more than 90 days, and he or she has not committed any of the offenses that would disqualify him or her from employment.
During the August 25, 2015, survey, surveyors identified four employees for which copies of background screening results were not located in the staff member’s paper personnel file.
Both section 408.809 and rule 58A-5.024 allow for records to be maintained in an electronic format, as long as personnel are readily available to access the data, and the facility produces the requested information upon request.
The four staff members are identified as staff members “C,” “E,” “F,” and “H.” Staff member C (Sammy Cimanes) did not have a paper copy in his file, but the website where background screening is recorded showed that he was eligible to work as of May 11, 2015. Ms. Monroe testified that she would have noted on her laptop that he was eligible on the date of the survey (and her notes so reflect), but she could not specifically recall doing so.
Staff member E, Flavia DiSusa, is identified by the surveyor as a chef. Ms. Monroe’s notes indicate that an affidavit of eligibility was in his file, but the facility was not cited for not having the affidavit. It was cited for the failure to have the actual background screening in his file. The background
screening documents for Flavia DiSusa indicate that DiSusa is a female, not a male as Ms. Monroe described. In any event, she was not eligible until September 8, 2015, after the August 25, 2015, survey. The deficiency was corrected within 30 days.
Staff member F, Kathleen Hall, is a CNA whose file contained an affidavit regarding eligibility dated July 21, 2015, but no background screening. AHCA’s background screening website indicates that Cristal Palace submitted her employment screening request on August 20, 2015, which was before the survey report was filed, but after the surveyor requested the records. This deficiency was also corrected within 30 days of the survey.
No realistic findings can be made with respect to staff member H. At hearing, Ms. Monroe indicated that she spoke to staff member H in the hall, and the individual identified herself as a housekeeper. Ms. Monroe recounted a conversation she had, which is clearly hearsay. There is no last name for staff member H and no file for her, and the person with whom Ms. Monroe dealt during this survey visit had never met her. While
Ms. Monroe testified that the person told her she was a housekeeper, Ms. Monroe provided no identifying information to confirm that information, such as what she was doing or wearing that would have indicated that she was indeed working for the facility. There is simply not enough information about this person to make a finding that she was actually an employee of the
facility, much less to make findings regarding the status of any background screening.
In terms of a deficiency for failing to conduct background screening, the number of employees that are not properly screened is not the issue. A deficiency would still exist. Here, there were two individuals for whom the background screening was not completed at the time of the survey, and both were corrected within 30 days. This violation is an unclassified violation.
Count IV
Count IV seeks to assess a survey fee pursuant to the provisions of section 429.19(7), to cover the cost of conducting an initial complaint investigation that results in a finding of a violation that was the subject of a complaint, or monitoring visits conducted under section 429.28(3).
The problem presented in this case is that Agency witnesses testified that while investigating a complaint, they could and would cite any deficiencies that they discovered while at the facility (and rightfully so). While each surveyor specified whether she was at the survey for a complaint survey or a monitoring survey, none of them identified the specific complaints that led them to survey the facility. Without knowing the subject of the complaint, it cannot be found that a violation was found that was the subject of the unidentified complaint.
Count V
Count V alleges a deficiency, based upon the failure to obtain or maintain a physician’s order for a therapeutic diet that reflects the dietary limitations prescribed. The allegations are related to a resident identified as resident 4 in Agency
Exhibit 3. Ms. Monroe, the surveyor responsible for this tag, never identifies the resident in any fashion, other than to say the resident was concerned about her diet. While the First AC asserts facts related to the resident’s 1823, dated August 26, 2015, and an order documenting a calorie controlled diet, neither document was offered into evidence by the Agency.
At hearing, Ms. Monroe was asked whether she saw an order for the resident that specified a number of calories, and she stated that she had seen an order for this resident that specified 2,000 calories. She cited the facility because she did not believe that it provided the diet for the resident and did not have a diet that met the 2,000-calorie diabetic diet. She did not know whether this resident was on a list in the kitchen of residents needing a diabetic diet and did not remember if she asked for such a list.
The Agency classified this deficiency as a class III. The evidence presented is not sufficient to support the allegations.
Count VI
Paragraphs 60 through 63 (Count IV) of the First AC are identical to paragraphs 82 through 85 (Count VI). Count IV is addressed in Findings of Fact 40 and 41. No further findings regarding these allegations are necessary.
Count VII
Count VII alleges improprieties regarding the procedure for assistance with self-administration of medications occurring during the December 17, 2015, survey.
Surveyor Vilma Pellot testified that she observed an unidentified staff member perform a “med-pass” with the patient identified in the survey as resident 9. The purported violation is that the staff member did not read the label of the medication: she simply told the resident what medications she was giving the resident.
Ms. Pellot was asked at hearing whether a staff member had to read the entire label to a resident, including the pharmacy name, number of refills, refill date, dosage, etc. She testified that the drug name, frequency, and dosage are required.
The staff member told the resident the medicines she was receiving, but did not recite the dosage and frequency for each.
A follow-up visit to the facility related to this survey occurred May 24, 2016. Ms. Pellot observed a second med-pass, and similar to the med-pass in December, the staff member sanitized
her hands, reviewed the MOR and retrieved the resident’s medications, placed the medications in a small cup and gave them to the resident, identifying the medications by name. Resident 3 in this case asked for Lorazapam, which was an “as needed/as requested” medicine, and the staff member went through the same procedure, retrieving the Lorazapam and placing it in a small cup, taking the medication to the resident and verbally identifying the medication to the resident before signing the MOR.
The staff member told the resident the name of each drug she received, but did not recite the dosage and frequency.
Neither the statute nor the rule uses the phrase, “name, dosage, and frequency,” or anything along those lines.
Count VIII
Count VIII deals with problems found with respect to resident records during a complaint survey conducted December 17, 2015. The First AC identifies a resident as resident 4, and alleges that the facility failed to maintain an MOR for this resident for October 2015 and that this resident needed assistance with medication (thus necessitating the use of the MOR). When asked about this issue with respect to the December 2015 survey, the surveyor did not identify a specific patient, by name, number, initials, or otherwise, but simply read from the survey document that the October 2015 MOR was not available.7/ The Agency did not introduce into evidence the 1823 referenced in the First AC to
establish that the resident actually required assistance with her medications, or any other orders by the health care provider.
The Agency conducted a follow-up visit on May 25, 2016.
Like many of the follow-up visits in this case, the follow-up visit for the December 17, 2015, survey, was six months after the initial survey, as opposed to 30 days. At that follow-up visit, the Agency alleges that resident records for two of the nine records reviewed were not sufficient.
With respect to resident 1, the Agency alleged that the informed consent regarding assistance with medications from unlicensed staff, dated February 18, 2016, did not indicate whether or not the unlicensed staff, who provided assistance, would be supervised by licensed staff; that the 1823 form dated April 26, 2016, did not contain the name of the health care provider, the provider’s medical license number, or the address of the provider conducting the examination; and that this 1823 did not indicate if the resident needed assistance with medications.
The Agency did not seek to admit the informed consent form or the 1823 form about which it complained. Moreover, rule 58A-5.024(3)(g) provides that the written informed consent form must be maintained if such consent is not included in the resident’s contract. The Agency presented no evidence regarding the resident’s contract and whether the appropriate consent was contained therein.
The Agency contends that the 1823 dated November 15, 2015, for resident 3 did not indicate whether resident 3 had any allergies. Ms. Pellot, the surveyor who cited this deficiency, could not remember the resident’s name, and the Agency did not submit a copy of the 1823 at hearing. When shown an 1823 dated November 15, 2015, for resident M.A. (Cristal Palace Ex. 38), she could not say whether this was the document she saw. Exhibit 38 contains the abbreviation “NKDA,” which Ms. Pellot acknowledged is understood to mean no known allergies.
While the First AC, paragraph 120, indicates that when the assistant administrator was interviewed, she stated that the purportedly missing items were overlooked, Ms. Pellot did not testify regarding this conversation. Without knowing the context in which the statement attributed to the assistant administrator was supposedly made, it is not sufficiently compelling to support the conclusion that a deficiency existed, especially where, as here, the documents were not supplied for review, and the exhibit supplied by Cristal Palace appears to contradict the surveyor’s findings with respect to resident 3.
The Agency did not demonstrate a class III deficiency with respect to the records of residents 1 and 3. Moreover, the Agency did not demonstrate an uncorrected Class III deficiency with respect to these records.
Count IX
Count IX alleges violations with respect to documentation related to staff in-service training identified during the October 21, 2015, survey.
Rule 58A-5.0191 identifies the in-service training requirements for those working in ALFs. There are different requirements for different types of staff. In other words, the training required of direct care staff is different than what is required for those who do not provide direct care, and all staff must receive in-service training regarding the facility’s resident elopement response policies and procedures within 30 days of employment.
During the October 21, 2015, survey, surveyor Vanessia Bulger reviewed staff files for eight staff members, and found that the documentation regarding in-service training for five of the staff was insufficient. The staff members were identified as A, B, C, D, and F.
Staff member A is Kimberly Travis. According to the chart attached to the October 21, 2015, survey, her date of hire is September 1, 2015. The survey indicates, and Ms. Bulger testified, that Ms. Travis’ personnel file did not contain documentation that she had received training for reporting major and adverse incidents; the facility’s emergency procedures; the
facility’s elopement response policies; and safe food handling practices.
The First AC does not allege whether Ms. Travis is a direct caregiver, which impacts what training is required for her. However, no one disputed that she was a CNA. In its Proposed Recommended Order, Cristal Palace acknowledged that Ms. Travis did not receive the missing training until December 2015; so clearly, documentation was not available during the October 21, 2015, survey.
There was no testimony presented regarding staff member B, who is identified in the survey matrix as Nicola Merriell. The matrix indicates “did not review,” and there is no information regarding her training documentation included in the employee matrix attached to the survey document.
Staff member C, Evertina Bethelmy, was hired on September 9, 2015. The First AC alleges that her personnel file lacked documentation for reporting resident abuse and neglect; resident rights in an ALF; the facility’s elopement response policies and procedures; reporting major and adverse incidents; the facility’s emergency procedures; and safe food-handling practices. Ms. Monroe testified to this effect, and there was no indication that this training was actually received, but not documented prior to the surveyor’s visit.
Staff member D is identified in the survey matrix as Isabel Ong, a nurse. No testimony was presented regarding the documentation for her training. Nonetheless, it is sufficient that the files for two staff members did not contain the appropriate documentation related to training requirements. This failure is appropriately considered a class III deficiency because of the potential for harm to residents, based upon the failure to be appropriately trained to care for residents.
On March 1, 2016, the Agency returned to the facility and again sampled employee files (although not necessarily the same ones) for compliance with in-service training. The First AC alleges that four staff members had no documentation related to required training.
While the First AC alleges what documentation was missing, as well as the personnel for whom it was missing, testimony at hearing does not address that information. The matrix attached to the March 1, 2016, survey identifies omissions for three employees as opposed to four. The only testimony the undersigned could locate on this issue and the only citation provided by the Agency in its Proposed Recommended Order is the single sentence, “when I reviewed the personnel records there was no evidence of certificates of training.” This testimony, standing alone, is insufficient.
Ms. Pellot testified, consistent with the testimony of her colleagues, that she does not review any document that is sent in by the facility in the 30 days after a survey. She simply looks at what is there when she conducts the revisit.
Cristal Palace presented Agency reports that show inspection details, including tags found, and when and if a deficiency is cleared. With respect to in–service staff training, the report indicates that the deficiency cited on October 21, 2015, and reviewed again on March 1, 2016, was not cleared until July 17, 2017, well beyond the time period contemplated by statute. It is unclear from the record whether the information was submitted on an untimely basis, or whether the Agency simply did not review the information submitted until a much later date.
The evidence supports finding a class III deficiency, but does not support a finding of an uncorrected deficiency.
Count X
Count X alleges that on May 25, 2016, the Agency completed a follow-up survey to the March 1, 2016, survey described above. At this time, the Agency alleges that there still existed an issue with respect to documentation of staff training, and that three of four staff members whose files were reviewed did not have some of the required documentation.
Surveyor Linda Gulian-Andrews testified with particularity regarding the missing documentation, and, as with
the tag discussed in Count IX, the Agency report for this tag shows that the deficiency was cleared July 17, 2017, well after
30 days.
Mr. Dorra, Cristal Palace’s owner and former administrator, testified that Cristal Palace had instituted a monthly audit of employee files to ensure that all documentation was accounted for. While it may have been Mr. Dorra’s direction that this audit be completed each month, it does not appear that his administrative staff followed through with the directive consistently.
This deficient practice constitutes a class III deficiency. It is an uncorrected deficiency at the time found, but has been cleared before the institution of this proceeding.
Count XI
Rule 58A-5.019 requires that staff must provide a statement from a health provider documenting that the staff has no signs or symptoms of communicable disease. The statement must be made based upon an examination performed no earlier than six months prior to submission of the statement. Employees must also submit documentation of a negative tuberculosis (TB) examination on an annual basis.
During the October 21, 2015, survey, the Agency reviewed personnel files and found that the file for staff member B did not contain the appropriate documentation. Specifically, the First AC
alleges that the staff member was a direct caregiver hired on September 19, 2015, and that the file for that person reflected a TB test result dated April 8, 2014, more than a year prior to her employment at the facility. The First AC also alleges that this staff member did not have a statement that she was free from communicable disease.
The employment matrix attached to the October 21, 2015, survey, does not have a staff member identified as staff member B. The staff member listed in the column between staff member A and staff member C (but not identified as staff member B) is Ticola Merriell. Her date of hire is listed as September 21, 2015, as opposed to September 19, 2015. The matrix listed Ms. Merriell as a dietary employee and notes, “did not review.” The survey document refers to a conversation with the administrator, indicating that the staff member (referred to as male) had not yet brought in a doctor’s statement. This makes no sense when coupled with the matrix attached to the survey.
The Agency did not demonstrate this deficiency as charged in the First AC by clear and convincing evidence.
The Agency returned for a revisit survey on March 1, 2016. At that time, it again cited the facility for failing to have a negative TB test and statement regarding communicable diseases, this time for staff member D.
Staff member D is Stephanie Flores. Her file contains two TB test results, one dated February 17, 2014, and the second one dated April 7, 2016. Neither test is in the window of time required by rule, in that the first one is well over six months prior to the date of hire, and the second one is more than 30 days from the date of hire.
The survey document refers to a conversation with the administrator, in which he indicates that the staff member was going to be terminated that day. Obviously, that did not happen, or Cristal Palace would not have a TB test for that staff member dated more than a month later. While the staff member may be clear of TB presently and presumably able to work, this deficiency as a practical matter cannot be cleared if the employee is unable to obtain documentation that she submitted to a TB test during the appropriate seven-month window. As a practical matter, the facility should have terminated this employee when the TB test was not provided within the first 30 days.
The Agency appropriately classified this as a class III deficiency.
Count XII
Count XII seeks to impose a survey fee to cover the cost of monitoring visits to verify the correction of violations.
Based on the findings with respect to Counts X and XI, Cristal Palace is subject to a survey fee of $500.
Count XIII
Count XIII alleges a failure to complete and timely submit an adverse incident report regarding the involvement of law enforcement cited during the Agency’s June 30, 2016, complaint survey.
Adverse incidents are defined by section 429.23(2), and included within its definition is “an event that is reported to law enforcement or its personnel for investigation.” There are two types of reports that must be submitted to the Agency when there is an adverse incident: the first (one-day) must be filed within 24 hours and relates what happened. The second (15-day) must be filed within 15 days and details the results of any investigation that is undertaken, and any corrective actions the facility has taken to prevent a recurrence.
Resident S.G. is a resident who keeps her medication locked in her room. On June 24, 2016, she signed for her prescription of Oxycodone. The prescription contained and S.G. received 120 pills. However, she came back to the med tech, who had given her the medication, and claimed that she had received only 60 of the 120 pills.
Cristal Palace called the police and Mr. Dorra escorted the police to S.G.’s room. With her permission, the locked cabinet where she kept her medications was opened, and all
120 pills were there.
The police did not file a police report. Likewise, Cristal Palace did not file an incident report, based on its belief that one was not necessary, given that the police did not actually investigate and no police report was filed. However, the need to file an adverse incident report is triggered not by the filing of a police report, but by calling law enforcement in the first place. The Agency correctly determined that the failure to file an adverse incident report is an unclassified violation, for which a fine of up to $500 may be imposed. Mr. Dorra’s interpretation of the requirement to file an adverse incident report is a reasonable, if incorrect, interpretation. The fine should not be the full amount; rather, a fine of $250 is warranted.
Count XIV
Count XIV also deals with background screening, cited as part of a survey on October 21, 2015. It alleges that a surveyor, Ms. Pellot, interviewed a housekeeper, whose name she could not remember. The First AC identifies her as staff member F. According to Ms. Pellot’s testimony, this person identified herself as a housekeeper who just could not resist the urge to assist residents, even though she was not hired to do so. She had not been sent for fingerprinting, but claimed that the administrator told her she was in the registry, which she did not understand.
There is no employment file for this person. At hearing, it appeared that this housekeeper was the same person identified in Count III, for which there was no file as well. However, the person with whom Ms. Pellot spoke claimed that she was hired in September 2015, after the previous survey. The matrix attached to the survey document does not identify a staff member F or a housekeeper. Ms. Pellot acknowledged that staff member F was not included in the matrix, but claimed that all of her information was included in Ms. Pellot’s notes, which she did not have at hearing.
A motion in limine filed by Cristal Palace specifically questioned whether Cristal Palace had been provided with all of the information related to the two people identified as housekeepers, and the Agency’s response to the motion did not address the issue. Moreover, neither Ms. Monroe’s testimony (regarding the earlier survey) nor Ms. Pellot’s testimony with respect to staff member F provided any information about these supposed housekeepers to explain why the surveyors believed them to be staff as opposed to a confused resident. There is no testimony that she was wearing a uniform associated with Cristal Palace or was performing housekeeping duties during the interview. Without a name for staff member F, it is not clear that the comments attributed to the administrator would even be about the same person.
Moreover, it seems unlikely that a person could be an employee without any type of employment file, given that at least some of the information in an employment file would be necessary to process payroll. At bottom, there are just too many questions about staff member F to determine by clear and convincing evidence that she was even an employee at the facility, much less that she was an employee whose background screening was not completed.
Count XV
Count XV deals with a criminal background check issue observed during the October 1, 2015, survey. Section 408.809(2) provides that where a staff member has submitted to a Level 2 screening at prior employment within the last five years, the prior screening may be accepted, provided that the person submits an attestation that the screening requirements at the prior employment are equivalent to those specified in
sections 408.809(2) and 435.04, Florida Statutes, and that the person subject to the screening has not had a break in service from a position requiring Level 2 screening for more than 90 days.
Ms. Bulger testified that during the October 21, 2015, survey, one of the employees whose file she reviewed had no affidavit, but she could not recall the employee’s name. After reviewing the survey document, Ms. Bulger testified that Evertina Bethelmy was hired on September 8, 2015, and had Level 2 screening results dated February 15, 2015, which means that her screening
was six months and approximately three weeks before her hire date. Her records also show that she was employed as a home health aide as of August 7, 2015, but, according to Ms. Bulger, there was no attestation in the file.
Cristal Palace produced a signed attestation from
Ms. Bethelmy dated September 8, 2015, her hire date. Ms. Bulger acknowledged that when she pulled up Ms. Bethelmy’s data on the computer, she was eligible. She did not review the documents Cristal Palace provided in the days immediately following the survey. As noted at hearing, the attestation had to be in the file at the time of the survey. Given Ms. Bulger’s inability to remember the name of the employee at issue, it is doubtful that her memory regarding what was in the file is nevertheless clear.
This unclassified alleged violation was cleared by the Agency on March 1, 2016, and is not substantiated.
Count XVI
The Agency seeks to impose a survey fee related to Counts X and XI. This count is identical to Count XII, which also seeks to impose a survey fee for Counts X and XI.
Count XVII
Count XVII alleges a violation based on the facility’s alleged failure to comply with the requirement to register and maintain its employees in the Care Provider Background Screening Clearinghouse (clearinghouse). Section 435.12 requires that the
Agency, in consultation with the Florida Department of Law Enforcement, create a secure web-based system referred to as the clearinghouse, which shall allow the results of criminal history checks provided to the specified agencies for screening to be shared among those agencies when a person has applied to volunteer, be employed, licensed, or enter into to a contract that requires screening.
Section 435.12(2)(b) requires that employers of persons subject to screening must register with the clearinghouse and maintain the employment status of all employees within the clearinghouse. Initial employment and any change in status must be reported to the clearinghouse within ten days.
The First AC alleges that based upon a record review conducted during a complaint survey on June 8, 2016, Cristal Palace had failed to maintain its employees in the clearinghouse. Specifically, while the facility had 25 employees at that time, the Agency alleges that only seven names were contained in the clearinghouse for the facility, and that only three of those were for current employees.
The Agency did not submit a copy of the clearinghouse roster into evidence. It also submitted nothing to identify who the employees, identified at paragraph 224 as employees A through G and L through Y, are. While the survey indicates that there were discussions with an assistant administrator regarding
the roster, that administrator was not identified, and the surveyor could not affirmatively identify which staff person she spoke to.
The Agency identified the alleged violation as an unclassified violation. However, the Agency did not demonstrate a violation by clear and convincing evidence.
Count XVIII
Count XVIII of the First AC alleges issues related to background screening discovered during the complaint survey conducted on June 8, 2018. The Agency alleges that staff
member B’s file did not contain a Level 2 criminal history background screening or attestation, and the staff member was not located in the Agency’s criminal background screening database.
The Agency also alleged that with respect to staff member C, the criminal history eligibility record in the employee’s file read “new screening required,” and the same information was noted in the Agency’s background screening database.
The Agency did not introduce any matrix to the survey document to identify these staff members; did not introduce any portion of the staff members’ personnel files; and did not provide any testimony to identify the staff members whose files it found to be deficient. It also did not provide any evidence from the database to support the allegations that one employee was not in the database, and that the database noted that new screening was
required for the other employee. The violation is not supported by clear and convincing evidence.
The Agency listed this count as supporting an unclassified violation. Inasmuch as the allegations are not supported by clear and convincing evidence, there is no basis for an unclassified violation.
Count XIX
Count XIX deals with Cristal Palace’s financial stability to operate. The First AC alleges that based upon review of financial account reviews and interviews as part of its June 2, 2016, survey, Cristal Palace did not demonstrate financial stability to continue the provision of care and services to residents. The First AC alleges that it interviewed several staff members (though unnamed or identified in any way), who stated that paychecks were being denied for insufficient funds; the food vendor refused to deliver food supplies until the account was paid; staff were buying food and supplies from their own funds; and there was concern about staff not coming to work because of compensation issues.
Several statements were attributed to staff members “K,” “L,” “J,” “F,” “E,” and “G.” These staff members were not identified and did not testify at hearing.
No food vendor testified at hearing.
The First AC makes several allegations regarding checks that were written on particular days, and that alleges there were insufficient funds available to cover those checks, as well as allegations regarding checks that bounced. However, no bank statements, registers, checks, or other documents were admitted into evidence.
Mr. Dorra, Cristal Palace’s owner and former administrator, testified about the financial condition of the facility. He acknowledged that early on, there were some problems with the accuracy of paychecks, because the employees did not use the fingerprint identification equipment properly to check in and out, creating issues in terms of the actual hours worked.
Mr. Dorra bought a new, simpler system, and addressed the paycheck discrepancies one by one. He testified that there was an instance where a food vendor delivery person was not paid the day of the delivery, and he contacted the vendor the following day to arrange payment. An employee who testified confirmed that there was a problem with her paycheck early on, but that the problem had been addressed, and there were no problems after that.
At the Agency’s request, Cristal Palace submitted to the Agency completed proof of financial ability to operate forms, dated July 4, 2016. This cited deficiency was cleared by the Agency on July 10, 2017.
The Agency did not prove the cited deficiency for financial inability to operate by clear and convincing evidence.
Count XX
Count XX is a “catch-all” provision, asserting that the information that Cristal Palace provided regarding its financial ability to operate failed to demonstrate that it had the financial ability to operate as defined by law. Count XX also alleges that Cristal Palace has been cited with five violations related to the failure to comply with background screening standards and has been cited with a total of 15 violations of law subject to administrative monetary sanctions over the period August 26, 2015, through June 8, 2016. The Agency alleges that these 15 violations constitute a pattern of deficient practice.
While the Agency contends that Cristal Palace failed to demonstrate that it has the financial ability to operate, the Agency did not introduce into evidence any of the financial information it received, and presented no testimony explaining that information. There was no expert testimony to address what was required for an ALF to operate or how the information submitted fell short.
Of the 20 counts alleged, the Agency proved a small part of Count II, but did not prove that it was a class II; and proved violations in Counts III, IX, X, and XI, related to documentation for background screening and/or in-service training
and freedom from infectious diseases. It also proved the violation alleged in Count XIII, related to the failure to file an adverse incident report, and Counts XII results in the imposition of survey fees. Several of these counts, while proven, were also cleared by the Agency. The Agency did not prove the allegations in Count I, the vast majority of Count II, Counts IV, V, VI, VII, VIII, XIV, XV, XVII, XVIII, XIX, or XX. In short, the Agency proved six violations, all of which are documentation issues, as opposed to issues addressing care and treatment. While clearly there were problems in certain areas, the evidence did not demonstrate an overall pattern of deficient practice.
Second AC
The Second AC comprises six counts. Count I alleges that during a complaint survey conducted October 26, 2015, contrary to rule 58A-5.0185(7)(f), the facility failed to make every reasonable effort to ensure that prescriptions for residents, who receive assistance with self-administration of medication or medication administration, are filled or refilled in a timely manner. The rule does not contain a definition for what constitutes a timely manner.
Count I
This allegation concerns the medication prescribed for resident 2. The Second AC alleges that from Friday to Monday, October 14 through 17, 2017,8/ resident 2 did not receive
prescribed pain medication. Allegations regarding the resident’s 1823 form, the nursing progress notes, and the resident’s MOR are also included, as well as an interview allegedly conducted with an unnamed unlicensed employee of the facility.
While the Second AC contains allegations regarding the 1823 form, the nursing progress notes, and the resident’s MOR, the Agency did not seek to admit any of these documents into evidence. The facility, on the other hand, submitted documents indicating that they had contacted both the physician and the pharmacy beginning October 12, 2017, before the medication ran out, and continued to do so until the medication was refilled. No deficiency has been proven with respect to this count.
Count II
This count alleges that the facility failed to file an adverse incident report with respect to a day resident who left the facility and for whom the facility initiated its elopement policy. The Second AC alleges that this deficiency is reflected in a survey dated October 25, 2015, but references an adverse incident report dated August 5, 2016, some nine months later.
R.G. was a resident who came to Cristal Palace during the day while his daughter worked. R.G. had been diagnosed with Alzheimer’s disease, but there was no testimony about the stage of his illness, and Shelia Mobley, the only person testifying who had personal knowledge regarding this resident, did not believe him to
be an elopement risk. According to Ms. Mobley, the Alzheimer’s diagnosis alone does not mean that a resident is an elopement risk, and she did not believe this gentleman to be one.
None of the surveyors were present when the incident occurred, and R.G.’s daughter did not testify. However,
Ms. Mobley is a consultant working with Cristal Palace, and was at the facility when R.G.’s daughter came to pick him up, and he could not be located. The more persuasive testimony indicated that he was gone from the facility for somewhere between 15 to
45 minutes.
Cristal Palace staff immediately began its elopement policy protocol to locate the resident, and law enforcement was called. Ms. Mobley remembered that he had a particular fondness for cars, and drove to the tire store located about a quarter mile away and within sight of the facility. The resident was there talking to the mechanics, and when he saw Ms. Mobley, he told her he was glad to see her and was ready to go home. She testified credibly that the resident was calm and apologetic when they returned to the facility, and was sorry to have caused such a commotion. The surveyor’s notes regarding the incident also reflected that R.G. was safe and unharmed.
R.G. wore an ankle bracelet to assist in locating him should the need arise, but Cristal Palace did not resort to using
the tracking system connected to the ankle bracelet because he was located so quickly.
The facility’s elopement policy included having pictures of residents who are elopement risks available to staff, including the receptionist, to aid in locating them. After this incident, the facility altered the front doors to include a magnetic lock controlled at the front desk to better control exiting the facility. The back of the facility is fenced, so the only way to exit the premises is through the front.
AHCA cited Cristal Palace for not timely submitting a 15-day adverse incident report. While the Agency chose not to submit a copy of either report into evidence, Cristal Palace submitted a copy of the one-day report filed with AHCA on
August 5, 2016, and the 15-day report submitted on January 30, 2017.
Mr. Dorra admitted at hearing that the 15-day report was not timely filed. He did not believe the incident to require an adverse incident report, but had one filed because the surveyor asked him to, and because the Agency kept citing the facility for failure to file the report.
It is unclear who called law enforcement in this incident, but staff at Cristal Palace were aware that law enforcement had been called, thus placing the incident in the category where both one-day and 15-day reports are required. Not
only are adverse incident reports required when law enforcement is called, but they are also required when there has been a possible elopement. While a 15-day report was filed, it was not done so on a timely basis. This incident is an unclassified deficiency.
Count III
Count III seeks to impose a survey fee with respect to Count I. Given that no deficiency was demonstrated with respect to Count I, there is no basis for imposing the survey fee requested in Count III.
Count IV
Count IV alleges background screening violations cited during an October 18, 2016, survey. The Second AC alleged that staff member B was hired on September 22, 2016, and the criminal history background screening of record indicated he was eligible March 12, 2012. The Second AC also referenced an undated employment application reflecting that his last employment at a licensed facility was over one year prior to his date of hire.
Staff member B is identified in the matrix attached to the October 18, 2016, survey as Michael Taylor. The Agency did not introduce into evidence any employment application or documents showing when he was eligible to work in terms of his background screening.
Ms. Pellot testified at hearing, after reviewing the survey document, that there was a background screening violation
for “one staff that should have – that was subject to a background screening did not have a background screening done.” She did not specify who the staff member was or when he or she had been hired, and provided no identifying information regarding the staff member or the contents of his or her file. Assuming that the staff member to whom she referred is Mr. Taylor, Cristal Palace supplied documentation showing that Mr. Taylor had been screened in
March 2012, and also had an attestation form signed on September 20, 2016. Any reliance on the undated employment application is misplaced, as it was not offered into evidence. Mr. Taylor was re-screened on November 3, 2016, and remains eligible.
The Agency did not establish that Mr. Taylor had a break in service or that there was an impropriety regarding his documentation by clear and convincing evidence.
Count V
Count V of the Second AC alleges that during the October 18, 2016, survey, there were two staff members, B and D, who were not included on the clearinghouse for Cristal Palace within ten days of hire.
The only testimony elicited at hearing regarding this allegation was the statement by Ms. Pellot that “review of the background screening roster revealed that the two staff what [sic]
we identified were not listed,” and that she had verified that the unnamed staff members were employed for ten days.
The matrix attached to the October 18, 2016, survey identifies staff members B and D as Michael Taylor and Latasha Spivey, respectively. Other than the matrix itself, no documentation related to these employees was offered into evidence by the Agency. The clearinghouse roster was not admitted into evidence and cannot be examined to determine if the staff members’ names were included.
The Agency did not prove the allegations in Count V by clear and convincing evidence.
Count VI
Finally, Count VI seeks revocation of Cristal Palace’s license based on the violation of background screening requirements in Counts IV and V. Inasmuch as the Agency did not demonstrate a violation of either count as alleged, there is no basis for discipline under Count VI.
Second Amended NOI
On February 28, 2017, Cristal Palace filed its application for renewal of its license. If there was a survey conducted in connection to the renewal application, as specified in section 408.811(1)(b), no evidence regarding such a survey was introduced into evidence by the Agency.
On June 5, 2017, the Agency served Cristal Palace with an NOI of its renewal application. The NOI alleged that the Agency had conducted numerous surveys and that Cristal Palace continuously failed to comply with the survey requirements toward correcting cited deficiencies. It further alleged that as of the time of the NOI, there remained twelve uncorrected deficiencies from the surveys conducted prior to the application for renewal of Cristal Palace’s license.
Cristal Palace submitted a copy of the Agency’s provider inspection details, printed January 23, 2018. At that time, the Agency’s report indicated eight tags that did not have a correction date. As discussed below, not all of the eight tags remaining open support a finding of a deficiency.
The NOI was amended twice, so that the current document is the Second Amended NOI.
There is a great deal of overlap in allegations between the Second Amended NOI and the Administrative Complaints, and those alleged deficiencies that have been addressed previously will not be revisited. The Agency has noted those allegations that it believes were addressed in the First and Second ACs. However, because of the sparsity of the allegations regarding each tag, coupled with the vague generality of the testimony provided, it appears that there are other allegations that duplicate the
charges in the First and Second ACs. Those allegations will be noted, but not addressed further.
June 2, 2016
The Second Amended NOI cites a tag related to the June 2, 2016, survey, regarding the facility’s financial ability
to operate. The Agency notes that this allegation was alleged in the First AC at Counts XIX and XX, and this allegation was not substantiated at hearing.
June 8, 2016
The Second Amended NOI identifies ten class III violations and two unclassified violations generated from the June 8, 2016, complaint survey.
The Agency tagged the facility for failing to follow a resident’s 1823 form, which included a physician’s order for medication administration. The resident is not further identified in the Second Amended NOI, nor is the nature of the medication administration failure.
The only evidence presented was testimony that the 1823 for this resident stated that he needed his medications to be administered, but that the surveyor, Ms. Pellot, had observed an unlicensed staff member providing assistance instead of a licensed nurse administering the medications.
The 1823 was not admitted into evidence. Moreover, while the survey report identifies the resident as female,
Ms. Pellot referred to the resident as male. The evidence regarding this deficiency was not clear and convincing, and therefore not substantiated.
The second class III identified addresses resident care/supervision and alleges that the facility failed to notify residents’ health care providers of unavailability of medications and that there was no evidence that the facility made efforts to ensure medications were timely filled or refilled. While there was testimony about medications given or not given to four residents, based on the surveyor’s review of documents, none of the documentation upon which the surveyor relied, such as MORs, 1823s, or other facility records, was admitted into evidence. Without more, this tag is not substantiated.
The third class III deficiency identified alleges the failure to post an activities calendar. Similar to testimony regarding a prior survey, the surveyor did not indicate where she looked for a posting of the activities calendar, and did not say that she requested one and it was not provided to her.
Ms. Mobley, who was a consultant regularly on the premises during this time, testified credibly that the facility has activities that are scheduled on a calendar, and there are many activities for the residents. This tag is likewise not substantiated.
The Agency also cited the facility for failing to inform residents of the weekly showering schedule, identifying
this deficiency as a class III. This tag was based on a conversation one of the surveyors had with two new residents, who allegedly reported that they had not been offered showers.
Conversations with residents who did not testify at hearing are hearsay.
Ms. Bulger acknowledged that there is no rule even requiring a shower schedule. The facility presented persuasive evidence that new residents are told about the shower schedule and are assured that showers are available whether on a schedule or not, but that some new residents take a while to settle into a routine.
While the Agency asserted that these two residents required assistance with showering, it presented no evidence, such as the residents’ 1823s, to substantiate this allegation. Similarly, the surveyor testified that she received the shower schedule, and the two residents were not on it. Yet neither the shower schedule nor the residents’ identity was presented for examination to substantiate the claim.
The fifth class III deficiency noted for the June 8, 2016, survey, is an administration tag related to medication. The Second Amended NOI alleged that the facility failed to provide medication administration to resident 4 by a licensed staff member, i.e., blood pressure readings to determine when medications were to be given.
The survey report for June 8, 2016, indicates that resident 4 had a physician’s order for Clonidine to be taken twice a day as needed, when the systolic blood pressure was greater than or equal to 180 mmHg, and that the April and May MORs contained only one blood pressure reading.
The Agency did not introduce the doctor’s order or the MORs into evidence.
Ms. Pellot testified that she spoke to a med tech who advised that blood pressure readings were kept in a separate book. While Ms. Pellot stated that she reviewed the contents of the book, no excerpts related to the blood pressure readings for this resident were offered into evidence.
Ms. Pellot did not testify that she saw an unlicensed person taking blood pressure readings. On the other hand, Coralie Prince, a nurse employed by Cristal Palace, testified that this resident was fixated on her blood pressure readings, which were generally good, and that her blood pressure readings were recorded. She also testified that CNAs and med techs did not take blood pressures when she was around, and she was not aware of a CNA ever making the decision that a resident needed medication based on blood pressure readings. She gave an example of an incident when she was running late to work and the resident was waiting for her at the door for a blood pressure reading.
When Ms. Prince was not available to take blood pressure readings, perform injections, or other medication administration, she testified that a licensed practical nurse (LPN) was available for this function. Ms. Prince was on-call, and would come in when the LPN was not going to be there. She came in no later than 7:30 a.m., and stayed for a 12-hour shift. Ms. Prince also testified that the facility had an electronic system that kept records of readings. That record was not in evidence.
The tag for medication administration has not been substantiated.
The sixth class III deficiency for which Cristal Palace was tagged involved medication storage and disposal. Surveyor Lorienda Crawford testified that she walked into a resident’s room and saw three unknown pills on the bathroom vanity. She testified further that if a resident self-administers medications, the facility still has an obligation to make sure all medications were secured.
The Agency did not offer the 1823s for these residents into evidence, which would have indicated whether they needed medication administration. Moreover, rule 58A-5.0185(6)(a) provides that residents may keep their medications, in their rooms or apartments, “which must be kept locked when residents are absent.” There are some exceptions to this provision in the rule,
but the Agency did not prove any circumstances that would trigger those exceptions, and the testimony of Ms. Crawford was that she went into the room and the residents were present, thereby negating the need for the room to be locked. This deficiency has not been substantiated.
The Agency issued a tag 77, citing a class III deficiency for failing “to ensure that resident’s records had documentation to confirm that resident’s healthcare provider and family were notified that resident went to ER and a Rehab Center, no documentation regarding residents’ hospital admissions.”
The survey report identifies three residents that allegedly went to either rehabilitation facilities or to the emergency room, but for whom the Agency says the resident files do not include any notation that a family member or the attending physician was notified. Once again, none of the resident records referenced in the survey report were admitted into evidence.
Cristal Palace keeps an Incident/Accident Report book where incidents occurring within the facility are noted. Each form includes a place to note whether family members or physicians are notified. Cristal Palace Exhibit 47 contains examples of these forms, and although it is hard to confirm if these are the same patients identified in the survey document, they appear to be. Some of these forms include a date in the narrative summary of what happened, and some do not. None have the space provided
for a date completed. In each form provided, there is a notation that a family member was contacted and/or provided a message regarding the hospitalization or other incident.
Without the opportunity to examine the records that are alleged to be deficient, this tag cannot be substantiated.
The Agency issued a class III for tag 93 (food service/dietary standards). The Second Amended NOI alleges that the “facility failed to provide therapeutic diet, failed to date and plan menus one week in advance, and failed to maintain
6 months menus with substitution noted.”
Surveyor Nitnirun Chaokasem testified that Cristal Palace had four-week menus posted all together, with no identification as to which week would be used when, and had no dates on the menus. She did not see six months’ worth of menus, and was told by newly-hired kitchen staff that the staff was unaware of the requirement to keep menus for six months. She also testified that one resident had orders to be served a 2,000-calorie ADA diet, and did not see a menu for that diet. However, she did not ask for the therapeutic diet.
Ms. Chaokasem reviewed Cristal Palace’s Exhibit 13, which is five weeks of menus. Each week of menus is labeled week 1, week 2, etc., but she was not told that the numbers correspond to the week of the month. She did not recall seeing the week-5 menu while at the facility, did not review the
dietitian certificate, and acknowledged that each menu included a certification from the nutritionist.
The Agency did not provide the 1823 for a resident that indicated the need for a therapeutic diet. However, while the menus were numbered sequentially, they are not dated as required, and six months worth of menus was not provided. This deficiency was appropriately cited as a class III. It was, however, cleared by the Agency on January 25, 2017, five months prior to the issuance of the original NOI, and was, therefore, not still outstanding.
The Agency cited tag 152 for two issues: 1) that a trash bag full of trash, as well as soiled clothing in a pile on the floor, were found in a resident’s room; and 2) that a resident room where bed bugs had been exterminated had a black and brown substance on the wall and ceiling.
Ms. Crawford testified that when she entered the room where the loose medication was on the bathroom vanity, she also observed a 13-gallon trash bag in the room that had not been dumped or emptied, along with some soiled, urine (smelling) clothing in a pile on the floor. She asked the residents when they had laundry day, and they did not know. She testified that the room was not on the housekeeping schedule she received, and she did not receive a laundry schedule.
No regulation requiring a laundry schedule or a housekeeping schedule was supplied, nor was the housekeeping schedule submitted into evidence. It is not known when the housekeeping schedule was prepared in comparison to the admission of these two residents, who were new to the facility. Moreover, while there was hearsay from the residents regarding how long the pile of clothing was on the floor, no competent evidence was presented to establish whether it was placed there days or minutes before the surveyor appeared. The facility’s witnesses testified that rooms were cleaned every day. This tag is not substantiated.
With respect to the alleged bed bugs, Ms. Bulger read from the survey document that the facility “had pests and mattresses, furnishings in the hallway. And there was dark substances [sic] in the ceiling and there were insects that had – that were still alive.” On cross-examination, she acknowledged that there was no resident in the single room in question, because the facility had moved the resident and was in the process of treating the room. She also did not know if the county health department came out and cleared them. The Agency cleared the deficiency in January 2017.
The more persuasive evidence is that the facility had already identified the problem and was taking appropriate steps to address it. In other words, it was actively seeking to provide
and maintain a homelike and decent environment by treating the already-identified issue. No deficiency has been substantiated.
The final class III tag identified for the June 8, 2016, survey, is the failure to update the admission/discharge log for the facility. Ms. Pellot noted that the admission/discharge log for the day she was there reflected a census of 58 residents, whereas the actual census the day of the survey was 39.
The admissions/discharge log was not admitted into evidence.9/ The potential harm identified was that in the event of an emergency, without an accurate admission/discharge log, the facility would be unable to account for all of the residents in the event of an evacuation. However, there was no evidence that resort to the admission/discharge log would be part of any evacuation plan. Ms. Pellot also acknowledged that she did not know whether any planned outing for that day may have affected the census as compared to the admission/discharge log.10/ This deficiency was not substantiated.
The first unclassified deficiency identified for the June 8, 2016, survey in the Second Amended NOI was previously addressed in Count XVII of the First AC. As noted in Finding of Fact 104, this deficiency was not substantiated.
The final deficiency identified in the June 8, 2016, survey, is noted as being included in the First AC. The allegations in the Second Amended NOI are sparse, but it appears
that this allegation is directed at the file for Ms. Bethelmy, addressed in Count XV of the First AC. As noted at Finding of Fact 98, this deficiency was also not substantiated.
In sum, of the 12 violations identified with respect to the June 8, 2016, survey, the Agency has proven one violation, that being the failure to appropriately date menus and to provide six months of menus upon request.
June 30, 2016
The Second Amended NOI alleged three violations with respect to the survey dated June 30, 2016: two identified as class III deficiencies, and one unclassified deficiency.
The first asserted violation is tag 7, addressing admissions criteria, in which the Agency asserts that the facility admitted a resident requiring a 24-hour caregiver when the facility did not have a 24-hour caregiver available.
The resident is not identified in the Second Amended NOI. The sole testimony regarding this issue is a statement by Ms. Bulger that “the facility admitted a resident whom, after the 1823 was completed, the healthcare provider noted that he – if he was going to be admitted into an assisted living facility he needed at [sic] 24-hour caregiver.” She testified that the facility does not have staff that could just watch this resident
24 hours, and that, based upon what the health care provider had
on the resident health assessment form, the resident was not appropriate for admission.
No 1823 for this resident was admitted into evidence.
Without being able to examine the 1823, and without knowing whether the Ms. Bulger’s statement regarding staffing was a general conclusion or based on an examination of the facility’s actual staffing levels, this deficiency is not supported.
There was evidence presented at hearing regarding provision of services by hospice. However, without more in the Second Amended NOI to identify the resident, there is no competent, substantial evidence to know whether the resident receiving hospice services is even the resident about whom the tag was written. Moreover, no tag related to hospice care was alleged.
The second class III tag identified addresses a resident that the Agency alleged had been identified as an elopement risk and for whom the facility did not ensure that the resident maintained identification on his person.
Although not entirely clear, it appears that this person is the same person identified in the prior tag. According to Ms. Bulger, the 1823 for this resident identified him as an elopement risk because he wanders. She observed him sitting in the activities room at the facility, and at that time, observed that he did not have identification on him. Ms. Bulger noted in
the survey report that the resident had a call button on a lanyard around his neck, but could not recall that at hearing. She also did not specify how she knew he had no identification and acknowledged that she did not attach a copy of the 1823 to her survey. The Agency likewise did not introduce the 1823 into evidence.
There is simply not enough evidence presented at hearing to identify this resident as an elopement risk. Nor is there any evidence about what information might be garnered from the on-call button he wore, or what efforts, if any, the Agency made to find that out. Without more, this deficiency is not substantiated.
The final deficiency noted for June 30, 2016, involved the same unclassified allegation addressed in the First AC at Count XIII. As noted in Finding of Fact 90, this deficiency was substantiated, though Cristal Palace’s explanation in mitigation of the incident was reasonable.
October 18, 2016
On October 18, 2016, the Agency conducted a monitoring visit for ECC services. At that time, it cited the facility for six class III violations and two unclassified violations, which are referenced in the Second Amended NOI.
The Agency issued tag 78 for staffing standards, stating that the “facility failed to obtain verification of
freedom from communicable disease for several staff.” The staff members at issue are not otherwise identified in the Second Amended NOI.
In the survey document, the staff members at issue are identified as staff members C and D. These staff members are identified in the matrix attached to the survey document as Larine Horton and Latasha Spivey, respectively.
At hearing, only one person is referenced as not having the appropriate documentation, and then not by name. In fact,
Ms. Pellot testified that this staff member was the same person she had cited the facility for previously, and that the staff member she is referencing (although not identifying by name or otherwise) is the staff member previously cited whose TB certificate was for more than six months prior to her hire date. That person, however, is neither Larine Horton nor Latasha Spivey, but rather was Stephanie Flores. As noted at Finding of Fact 82, her original TB test was too early, but there was a second TB test dated April 7, 2016. Assuming this is the staff member the surveyor meant to identify, the April 7, 2016, TB test would be current for the survey conducted in October of that year.
Without more clarity, both in the Second Amended NOI and in the testimony presented, this tag cannot be substantiated.
The next tag cited in the Second Amended NOI is tag 79, for not having staff who had both first aid and CPR certifications during a work shift.
Ms. Pellot testified that she cited the facility for not having a staff member with first aid and CPR training from
11 p.m. to 7 a.m. No date is specified in her testimony, or in the Second Amended NOI. The survey document for October 18, 2016, indicates that the shift in question was on October 9, 2016.
Ms. Pellot testified that she did not know whether Mr. Durra, the administrator, was in the facility during this time, or whether he had certification in both first aid and CPR. She stated that if he was there and had both certifications, it would satisfy this requirement. Her answer was the same with respect to Larine Horton, an employee listed on the matrix attached to the survey document as having both certifications. Ms. Pellot testified that she cited the facility based on who was listed on the shift schedule, but does not remember the names on the schedule and does not remember if she made a copy of it.
Mr. Durra testified that he was present during the shift in question, and the Plan of Correction submitted by the facility also noted that he was there that evening. This deficiency has not been substantiated.
Tag 81 was cited for failing “to provide or make arrangements for staff to receive In-Service training in Resident
Rights in an ALF, Recognizing Abuse, Neglect, and Exploitation, etc.” The Second Amended NOI does not identify which staff and which specific courses were missing for those staff members.
Similarly, the testimony at hearing was that there was “no evidence that one staff had received the training on recognizing abuse, neglect and exploitation; how to report adverse incidents –adverse incidents; facility emergency procedures; or elopement risk policies and procedures within 30 days of employment.”
The matrix attached to the survey document for October 18, 2016, lists staff member D as the person needing the
training, and identifies her as Latasha Spivey. Assuming that is the person about whom Ms. Pellot was testifying, her employment records offered by Cristal Palace show a license transcript from the Department of Health file showing that she had received training in abuse neglect and exploitations on January 27, 2015, and May 8, 2015, as part of her continuing education requirements as an LPN. In addition, there are certificates of other training taken in October 2016, shortly after the date of the survey.
Ms. Pellot testified that she did not review any of the documents provided within 30 days after the survey. Clearly, those documents would not have been available at the time of the survey if Ms. Spivey had not taken the courses by that date, which was
more than 30 days after she was hired. This was appropriately cited as a class III.
During this survey, Ms. Pellot also cited the facility for failing to ensure that staff had in-service training in the facility’s DNRO procedures. Once again, no specific staff member is named in the Second Amended NOI. However, the survey document identifies Ms. Spivey as not having this training within 30 days of hire, as her certificate indicates she took the training October 27, 2016. Although clearly corrected within 30 days and not still outstanding, this was correctly cited as a class III deficiency.
The Agency cited Cristal Palace for two alleged deficiencies regarding ECC plans: one for not having an ECC service plan for a resident identified as receiving ECC services, and one for not having records to confirm that nursing assessments were conducted at least monthly after a resident’s admission to ECC.
An ECC service plan is a plan developed for a resident with a facility in conjunction with the family, on how the facility is going to meet the needs of a resident who exceeds traditional ALF criteria and remains there pursuant to a specialty ECC license. An ECC plan addresses the range of services the facility is going to provide. A nursing care plan, on the other
hand, is a plan that addresses a specific disease process, as opposed to care and services.
Ms. Pellot testified that Cristal Palace had a nursing plan, but not a service plan, for a gentlemen that is identified only as a resident using a wheelchair and needing urinary catheter care.11/
Ms. Mobley spoke with the surveyors about the ECC service plan. She testified that she provided to them an ECC service plan, and was told that it was incorrect because it was more like a nursing home plan. When Ms. Mobley inquired where the governing statutes gave guidance regarding how an ECC plan should look, she testified that she was told what she presented did not meet the (unidentified) standard. Ms. Mobley stated that she asked the surveyor whether it would make sense to go above the standards to make sure a resident is taken care of, in that nursing home residents usually require more care, and was told their plan was “too nursey.” Ms. Mobley also faxed the plan to an educational trainer for the Florida Assisted Living Association (FALA), who previously headed the ALF unit at the Agency, and neither could understand why the plan was not acceptable.12/
It would be appropriate to review the plan prepared by the facility and rejected by the Agency surveyor, but the plan that Ms. Pellot described as a nursing plan as opposed to an ECC plan was not offered into evidence. Without seeing what was
prepared and rejected, there is not persuasive evidence that the plan was not satisfactory. Moreover, the Agency’s records indicate that this tag was cleared in January 2017. This violation is not substantiated.
The final class III, cited in the October 18, 2016, survey, is for failing to have records to confirm that nursing assessments were conducted at least monthly after a resident’s admission to ECC. Ms. Pellot testified that a patient was admitted in August and when they were there in October, no nursing assessment was in the file. She also testified that Latasha Spivey was contracted to do assessments, but that Ms. Spivey indicated to her that she thought the assessments were to be quarterly.
No records regarding this resident were offered into evidence to establish the resident’s identity, date of admission, or level of care required. The correction plan submitted by Cristal Palace following the October 18, 2016, survey, indicated that “preliminary service plans are implemented by the R.N. and will conduct monthly assessments.” It does not indicate one way or another whether the facility was previously conducting the assessments on a different interval. This deficiency was cleared on January 25, 2017.
Without some documentation to identify the resident in some fashion, his or her admission date, and his or her need for
the nursing assessments at all, this deficiency has not been substantiated.
The final two tags cited in the Second Amended NOI for unclassified deficiencies that were included previously in the Second AC. The first one, for failure to include two employees on the clearinghouse roster, was addressed in Count V of the
Second AC, and as reflected in Findings of Fact 135 through 138, this deficiency was not substantiated.
The second unclassified deficiency, as alleged in Count VI of the Second Amended NOI and addressed at Finding of Fact 139, was also not substantiated.
October 26, 2016
The Second Amended NOI alleges one class II violation, four class III violations, and one unclassified violation stemming from the survey conducted October 26, 2016.
The class II violation, addressing the alleged failure to make reasonable efforts to refill pain medication for a resident, was addressed at Findings of Fact 119 and 120 with respect to Count I of the Second AC, and was not substantiated.
The first class III violation tagged is tag 25, related to the day resident referenced in Count II of the Second AC. The allegation listed in the Second Amended NOI is that the “facility failed to prevent elopement of a day-care resident found at a Tire Kingdom store.” The notes in the survey, however, state the
violation is for failing to know the general whereabouts of the resident.
The Agency could not identify at hearing how long R.G. was away from the facility because it occurred when no surveyor was present, and it presented no evidence from anyone with personal knowledge about how long R.G. was gone from the facility. There is no definition of what constitutes “general awareness,” but it appears from the Agency’s view, staff should have been aware of R.G.’s whereabouts every minute of the day. Here, the most persuasive testimony was that R.G. was gone a very short time, and once the facility realized he was not where he had been last observed, based on her knowledge of R.G.’s interests,
Ms. Mobley drove to the tire store and found him talking with the employees there. The adverse incident reports filed by the facility indicate that he walked out the front door behind another guest. If anything, the evidence showed that the facility’s consultant knew R.G. well enough to know where he would most likely go if he left the facility, and she was correct in her assessment. This tag is not substantiated.
The next tag, listed as tag 32, is identified in the Second Amended NOI as a tag related to elopement standards, for failing to “ensure that a day-care resident’s photo was in the facility’s elopement book.”
Ms. Andrews testified that several people identified
R.G. to her as an elopement risk, but did not identify those people. Ms. Mobley, on the other hand, did not believe that he was in fact an elopement risk. While Ms. Andrews was informed that Ms. Mobley was the person who found R.G. at the tire store, she did not speak to Ms. Mobley about the incident. Although she testified that the facility “knew” he was an elopement risk, she could not recall if an elopement risk assessment was contained in his file, and no assessment identifying him as an elopement risk was offered into evidence.
Most importantly, the incident at issue occurred in early August, and the facility was cited for it in late
October 2016. Ms. Andrews did not know when R.G. stopped coming to the facility as a day resident. This issue is important because the tag here is for the failure of the facility to have his picture with pictures of other residents. Ms. Andrews testified that, while she could not remember where they were stored, she recalled seeing pictures of other residents but not
R.G. Without establishing that R.G. was still attending the facility at the time she observed the pictures, Cristal Palace cannot be cited for failing to have his picture ID in the medical record system. This finding has not been substantiated.
The next tag identified for October 26, 2016, tag 55 related to medication storage and disposal, alleges that a
medication cart was left unlocked in the hallway. Ms. Pellot testified that while she was at the facility on October 26, 2016, she was on the second floor near the elevator and saw a medication cart that was unattended. The cart was unlocked, and she stayed at the cart for approximately five minutes before a staff member came back. Ms. Pellot testified that the staff member indicated that she was assisting a resident.
Ms. Pellot acknowledged that there was no one present in the hall while she waited for staff to reappear, but whether the hall was empty or full does not really matter. It is a clear violation of rule 58A-5.0185(6)(b), which requires centrally stored medications to be kept in a locked cabinet, locked cart, or other locked storage area at all times. This is a class III violation because of the potential risk of residents taking medications not prescribed for them, and it is a substantiated violation. Agency records indicate that this violation was cleared by the Agency on January 27, 2017.
The final class III violation cited for the October 26, 2016, survey, alleged that the facility failed to make sure that the air conditioning unit in a resident’s room was in good working order.
Ms. Bulger is the surveyor involved with this tag. She testified that she went in the resident’s room, and it was warm; she was sweating when she left the room. When she checked the
thermostat for the room, it read 84 degrees. The resident told Ms. Bulger that she had informed the administrator and that the resident was told they were working on it.
Ms. Bulger also acknowledged that the facility offered to move the resident while the air conditioning was being fixed, and the resident did not want to move. She did not know when they offered to move the resident or when they called the repair service, stating, “they did not start working on it, that I could see, because I was asking for proof that they were trying to get it fixed and it was never provided until the day that it was brought up to them.”13/
The survey document contains hearsay statements from the resident’s relative and the maintenance person indicating an awareness of the problem and underscoring the offer to move the resident until the air conditioner was fixed. Mr. Dorra also testified that he went to Home Depot to get a portable unit for use until the existing unit was repaired. That unit was not in the room when the surveyor was there. The tag was cleared on January 25, 2017.
The plan of correction submitted by the facility also reported that an electrician had come to the facility to repair the air conditioning, and it was functioning appropriately at that time. The facility also articulated a plan wherein any reported
maintenance problem would be resolved within 48 hours of being reported.
In this instance, there is no clear evidence of how long the air conditioner for this resident’s room was not functioning, or how long it was before the facility took action to have it repaired. All that has been established is that the day of the survey, the air conditioning was not working; that the facility had already offered to move the resident until it was fixed; that the resident refused to move; that the facility called a repairman at some unidentified point to get the unit fixed; that it bought a portable unit in the interim; and that the unit was fixed. Without more, this deficiency is unsubstantiated.
The Agency also cited one unclassified deficiency with respect to this survey, regarding the facility’s failure to file a 15-day incident report related to the elopement of R.G. This tag has been addressed previously at Count III of the Second Amended NOI, and as stated in Findings of Fact 127 through 129, this deficiency was substantiated.
January 25, 2017
The final series of deficiencies alleged in the Second Amended NOI are contained in survey reports issued January 25,
2017.
The first tag is for the proof of financial ability to
operate. The Second Amended NOI lists this as an uncorrected
deficiency. However, as noted earlier with respect to Counts XIX and XX of the First AC and with respect to the first item listed for the Second Amended NOI, this deficiency was not substantiated with respect to the prior tag. No further information was introduced with respect to this tag to further substantiate any financial problems: while the survey report summarizes some balances apparently taken from various bank accounts, none of the documents from which this information may have come were admitted into evidence. No expert testimony or fiscal analysis was presented. This deficiency remains unsubstantiated.
The next tag cited is identified as a class III violation related to supervision related to resident care. The Agency alleged as a factual basis that the “medication technician did not properly measure topical ointment; no documentation evidence that resident’s blood sugar was tested as ordered; no documentation evidence that facility notified healthcare provider when resident’s blood sugar was not tested.”
With respect to the measurement of topical ointment, the only evidence provided on this issue was provided by a witness for Cristal Palace. The Agency did not introduce any testimony regarding this incident and did not mention this particular allegation in its Proposed Recommended Order. It is not substantiated.
The next allegation deals with a patient for whom the resident records did not document that the facility tested her blood sugar. Agency Exhibit 15 identifies this resident as resident 3. Ms. Pellot testified that for one resident, the MOR said to test blood sugars three times daily, and the key at the bottom of the form said the resident was out of the facility. For several entries, a “3” was entered in the MOR, meaning that the medication was not given. Ms. Pellot did not testify, with respect to this particular resident, about any failure to notify the resident’s physician that the blood sugar readings were not performed.
Testing blood sugar levels is not the same as giving medication, but is governed by the same standards. However, neither the 1823 nor the MORs for this patient were offered by the Agency as exhibits at hearing. There is no method to analyze documents not included in the record. No deficiency is substantiated with respect to this resident.
The Agency issued a tag 160 for the failure to maintain an updated census for its residents. Ms. Andrews testified that there was a resident that had not been at the facility for several months, but was still listed on the admission/discharge log as a current resident. The summary of findings in the survey document states that the person was listed as discharged, but that no discharge date was identified.
It cannot be determined whether the statement by Ms. Andrews or the narrative in the survey document is the most
accurate, because the resident is never identified in any manner where even initials could be compared against the admission/discharge log, and the Agency did not offer the admission/discharge log into evidence. This tag, classified by the Agency as an uncorrected class III violation, was not substantiated.
The Agency also cited the facility for a new class III violation, based upon the facility’s failure to maintain updated MORs for residents. The Second Amended NOI does not specify how many residents and/or their identities.
The only testimony provided at hearing with respect to this tag is by Ms. Pellot, who testified simply that when there are blank slots on the MOR and no notation in the back, the assumption is that the medication is not given. She stated that on three out of eight records that she reviewed, there were multiple blanks with no explanations. She provided no further details. The survey document provided additional detail that apparently is taken from the residents’ 1823s and MORs.
None of the 1823s, which would establish that a resident needed assistance with medications, and what medications were to be administered, were admitted into evidence. Likewise, the MORs that the Agency alleges are deficient were not offered
into evidence by the Agency. Without this evidence, the alleged deficiency is not substantiated.
The Agency also re-alleges the tag for failing to submit an adverse incident report “when law enforcement was called to investigate alleged stolen narcotics.” This deficiency is related to the incident discussed in Count XIII in the First AC, and addressed in Findings of Fact 87 through 90, and again at Finding of Fact 190. It is not clear whether the adverse incident reports for this incident were ever filed. The Agency appropriately found an uncorrected, unclassified violation for this tag.
One of the purposes of the January 25, 2017, surveys (there are five separate survey documents) was to revisit the facility with respect to its monitoring of the ECC license. As part of that survey, the facility was cited for having a staff member whose CPR certification was from a provider that was not approved. The testimony did not identify the staff member or the training provider that was not approved, and a copy of the unapproved certification was not admitted. The survey document identified the staff member as staff member B. However, none of the matrixes, attached to any of the five surveys dated
January 25, 2017, identify staff member B. Moreover, there is nothing to identify the education provider, much less to demonstrate that the provider is not sponsored by an entity named
in the Agency’s rule.14/ This deficiency has not been substantiated.
The facility was also cited for tag 81, as an uncorrected class III violation for staff in-service training. The Second Amended NOI alleges that “the facility did not have any documented evidence indicating staff received In-Service training regarding Recognizing Abuse, Neglect and Exploitation and reporting Adverse Incidents in ALFs.” The only testimony presented for this violation was that “staff who had been hired for more than 30 days did not have the training – the mandated training – in-service training.” Once again, no staff member is identified in the testimony. No citation is made in the Agency’s Proposed Recommended Order to any exhibit to corroborate or further explain this testimony. Agency Exhibit 16 addresses this tag and identifies the staff member as staff member D, but that staff member is not identified in the matrix attached to any of the January 25, 2017, survey documents. This deficiency has not been substantiated.
The Agency also cited the facility for tag Z815. The Second Amended NOI alleges that the facility’s roster on the clearinghouse site did not include one of the facility’s staff members. The staff member is not identified in the Second Amended NOI or in the testimony at hearing. A copy of the clearinghouse
roster was not offered into evidence. This deficiency, listed as an unclassified violation, was not substantiated.
Finally, the Agency issued tag Z821 as an unclassified violation in terms of reporting requirements. The survey document indicates that this citation is related to the August 5, 2016, incident regarding the day resident, R.G. The Agency offered no testimony regarding this deficiency in connection with the
January 25, 2017, survey, and simply cited to the survey document listed as Agency Exhibit 17. As noted in Finding of Fact 127, the 15-day adverse incident report for this event was filed
January 30, 2017, a few days after this follow-up visit. The deficiency has since been cleared, but at the time of the survey, was appropriately cited as an uncorrected, unclassified violation.
In sum, of those violations listed in the Second Amended NOI that are not duplicates of the two Administrative Complaints, the Agency proved one class III violation for the
June 8, 2016, survey that was cleared prior to the issuance of the initial NOI; two class III deficiencies related to training documentation from the October 18, 2016, survey, at least one of which was cleared prior to the initial NOI; one class III violation and one unclassified violation from the October 26, 2016, survey, both of which were cleared prior to the initial NOI; and two unclassified violations addressed to reporting
requirements, at least one of which was cleared prior to the initial NOI.
General Findings
As noted early on, Cristal Palace is a relatively new facility. Its growing pains have been difficult and due in large part, to disorganized, poorly prepared administrative staff.
While it is suspected that what was presented at hearing in terms of staff members and staff turnover is just the proverbial tip of the iceberg, the evidence shows that at least one assistant administrator with whom the Agency interacted during surveys, Mariah Wiggham, was cited for poor performance, and left employment with the facility on July 6, 2016. Documentation issues, however, did not end with the termination of Ms. Wiggham’s employment.
Mr. Dorra has recognized the need for better administration, and early on in the licensure process hired Ms. Mobley to assist him with credentialing for insurance and
other matters. Over time she was asked to help with other issues, and was given free access to check on issues at the facility.
Ms. Mobley has significant experience in the ALF field, and has worked in the field for about ten years. She has her own ALF and is currently a regional director for FALA. Ms. Mobley’s testimony was straightforward, consistent, and credible.
Ms. Mobley is not the answer to Cristal Palace’s problems. She left the facility in approximately May 2017, after she advised Mr. Dorra that he should hire a management company experienced in ALFs, because the managers he had hired were subpar. While she did not endorse those managers, she believed that the management problems did not trickle down to the residents, and that the care given to the residents was excellent.
Ms. Mobley testified to Mr. Dorra’s efforts to put in safeguards to help in terms of compliance. A new software program was implemented to maintain electronic resident records in 2016. The electronic program alerts the administrator when something is not given to a resident on time, and is also tied to the pharmacy as well, providing notice two weeks before a medication runs out. According to Ms. Mobley, Mr. Dorra also purchased a program to provide all of the necessary in-service training. Correction plans also referenced the purchase of “Sushoo software” to assistant with organizing the timeliness of documentation related to personnel records and training issues.
While it appears that Mr. Dorra earnestly desires to provide a safe and pleasant residence for seniors, he has kept his involvement fairly limited to the financial end of the operation, leaving, perhaps too much, the direct care aspect of running Cristal Palace to his director of nursing, nurses, CNAs, and med techs. If this case shows anything, it is that a stronger
management well-versed in running an ALF and familiar with all of the regulations related to doing so, is required.
By the same token, the Agency’s performance seems to be somewhat haphazard as well. While section 408.811 speaks in terms of correcting deficiencies within 30 calendar days, the follow-up visits in this case did not ever occur within a 30-day period. For example, the follow-up visits for the surveys conducted August 26, 2015, occurred May 25, 2016, and June 8, 2016. The follow-up visit for the survey conducted October 21, 2015, took place March 1, 2016, and the follow-up from the December 17, 2015, survey also occurred May 25, 2016.
Agency personnel were asked frequently whether they had reviewed the documentation sent to the Agency in plans of correction or sent in immediately following a survey, and each time the testimony was that surveyors did not review that information and instead relied only on what was presented during the survey inspection. Who actually reviews the information remains a mystery, because the Agency never identified what, if anything, is done in response to a facility’s attempts to come into compliance by submitting documentation that should have been available to the surveyors at the time of the survey.
There was testimony that when the surveyors were present, there were usually three or four of them, and each one would be asking for different documentation. Ms. Mobley testified
that on one occasion, she went to the room where the surveyors were working to retrieve a file and they had papers all over the place, and things were “just in shambles.” Whether or not files were in the disarray that she described, the testimony casts some doubt as to whether certain documents were truly not there or were instead misplaced.
In at least one instance, the deadline provided by the Agency bordered on unreasonable. For example, there was an instance where Mr. Dorra had advised that there was an issue with a bank account because of a fraudulent check that someone had written on the account. The surveyor, Linda Gulian-Andrews, appropriately requested documentation and, when the administrator was unable to provide the documentation that day at 4:45 p.m., she gave him a “grace period” until 9:00 a.m. the next morning. Given that the documentation Ms. Gulian-Andrews was requesting required communication with the bank, this “grace period” was illusory at best.15/ Ms. Gulian-Andrews acknowledged that there were at least three surveyors there the day she made the request for documentation, that staff for the facility had to bring documents to the surveyors, and that she did not know whether the administrator may have been addressing requests from other surveyors at the same time she was requesting documents.
All this is to say that this is a case where the Agency was demanding strict compliance yet did little to prove its case
at hearing, and the facility was suffering from a lack of strong management to provide the documentation required. While the Agency proved some of the claims it presented, the majority of violations proven represented documentation issues and reflect an overall failure to get a handle on the paperwork necessary to run a successful facility in a highly regulated area.
Ms. Mobley testified that, based on her experience in the industry, and after reviewing both the services at Cristal Palace and the services provided at some of the other facilities in the area, Cristal Palace should stay open. Her opinion has been taken into account with respect to the ultimate recommendation in this case.
With respect to the renewal application, no evidence was presented identifying deficiencies in the renewal application, and the Second Amended NOI does not indicate that the Agency’s intended action is based on any deficiency in the application. Nor, as noted above, is there any evidence that the Agency conducted a biennial survey in response to the application to renew. All of the issues identified in the Second Amended NOI predate the renewal application.
Although the Agency is authorized to issue a provisional license while the denial of the application is pending, it has refused to do so. This refusal has further complicated Cristal Palace’s ability to provide services to its
residents or to attract new residents, because it cannot display a current license of any kind.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject of this proceeding, pursuant to sections 120.569 and 120.57(1).
Burden of Proof
This is a de novo proceeding which requires the resolution of two administrative complaints and the denial of an application to renew. With respect to the allegations in the two Administrative Complaints, the Agency bears the burden of proof to prove the allegations pled by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 520 So. 2d 292 (Fla. 1987).
As stated by the Supreme Court of Florida:
Clear and convincing evidence 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. 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 Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz
v. Walker, 492 So. 2d 797, 800 (Fla. 4th DCA 1983)). Accord
Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986,
988 (Fla. 1st DCA 1991) ("Although this standard of proof may be met where the evidence is in conflict . . . it seems to preclude evidence that is ambiguous."). It is a high standard, and cannot generally be satisfied by witnesses whose independent recollection is limited and who do little more than summarize written documents issued months before.
In the license renewal case, the law regarding the burden of proof is less settled. In Florida Department of
Children & Families v. Davis Family Day Care Home, 160 So. 3d 854 (Fla. 2015), the Florida Supreme Court addressed these issues in a case involving both an administrative complaint and a denial of an initial application for licensure. In question was the burden of
proof and standard of proof for the license application case. The court explained that these issues were answered by Osborne Stern,
and stated that while the ultimate burden of persuasion to prove entitlement to the license remains on the applicant, where the basis for denial of the license application is that the applicant violated certain statutes and, thus, is unfit for licensure, the Agency has the burden to prove the applicant’s unfitness. The court found that in that context, the standard of proof is by a preponderance of the evidence, not clear and convincing evidence.
The issue presented here, where the application is for renewal as opposed to initial licensure, and the denial is coupled with an Administrative Complaint at hearing was also presented in
Agency for Health Care Administration v. Rise & Shine Assisted
Living Facility, LLC, Case No. 16-7558 (Fla. DOAH Nov. 9, 2017), modified in part, Case No. 2016000434 (Fla. AHCA Jan. 26, 2018).
In that case, Administrative Law Judge Elizabeth McArthur provided an in-depth analysis regarding the burden of proof, from which the undersigned draws heavily in the discussion below.
In reaching the conclusion that the burden on the agency to prove violations in the context of the denial of a license application, the Davis court pointed to the discussion in Osborne Stern that answered this question:
In Osborne Stern, this Court clarified that it is the nature of the agency’s action and the underlying rights implicated by the action that govern the applicable evidentiary standard—and it did so in a case that, like this one, involved both a disciplinary action and the denial of an initial application for a license in which the applicant holds no property interest. See Osborne Stern, 670 So. 2d at 934-935. Accordingly, the Second District erred in holding that the clear and convincing evidence standard applies in this proceeding.
Davis, 160 So. 3d at 857.
The court’s holding as to initial license application cases cannot simply be extended to the license renewal context, because denial of an application to renew a license cannot be equated to a case “in which the applicant holds no property interest.” Id.
The Davis decision contains language that could be
considered applicable to a license renewal case such as this one. The court drew from prior cases to note as follows:
[T]he denial of the application based upon violations of a statute governing the profession is not a sanction for the applicant’s violation of the statute, but rather the application of a regulatory measure, and that applying the clear and convincing evidence standard would be inconsistent with the discretionary authority granted by the Florida legislature to administrative agencies responsible for regulating professions under the State’s police power. Discretionary authority is particularly necessary where an agency regulates occupations which are practiced by privilege rather than by right and which are potentially injurious to the public welfare.
Davis, 160 So. 3d at 856-857 (citations and quotes omitted). In
this regard, the Legislature has provided the following instruction in its statement of the purpose of the ALF licensure laws:
The principle that a license issued under this part is a public trust and a privilege and is not an entitlement should guide the finder of fact or trier of law at any administrative proceeding or in a court action initiated by the Agency for Health Care Administration to enforce this part.
§ 429.01(3), Fla. Stat.
Coke v. Department of Children & Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998), addresses these issues in a license renewal context by referring with implicit approval to
the fact that the Department had agreed that it has the burden of proving the licensee’s lack of entitlement to renewal of the license and that the evidence needed to be clear and convincing. The court also cited to Osborne Stern and Dubin v. Department of Business Regulation, 262 So. 2d 273 (Fla. 1st DCA 1972). In
Dubin, the court held that an agency could not avoid its burden of proof by clear and convincing evidence by not taking action to revoke a licensee’s license and instead, asserting the alleged violations as reasons to deny the licensee’s application to renew its license.
Avalon’s Assisted Living, LLC, d/b/a Avalon’s Assisted Living v. Agency for Health Care Administration, et al., Case
No. 14-0610 (Fla. DOAH Jan. 21, 2015), modified in part, Case No. 2013012638 (Fla. AHCA Mar. 3, 2015), is similar to this case, in that it involved a combined administrative complaint case against an ALF and a denial of an application to renew the ALF’s license. After reviewing the appellate authority addressing burden of proof and standard of proof in a variety of contexts, Administrative Law Judge Lawrence Johnston recommended, as follows, as a conclusion of law:
The best way to reconcile and harmonize the conflicting decisions on the burden and standard of proof is to place the burden on AHCA to prove alleged violations by clear and convincing evidence and, if it does, allow Avalon to prove by a preponderance of the evidence that its license should be renewed,
notwithstanding any violations that are proven. (RO at 22).
In its Final Order in Avalon, AHCA disagreed with the recommendation as to burden and standard of proof and modified the conclusions of law accordingly. The same can be said for AHCA’s actions with respect to the Rise & Shine Final Order. In Avalon, AHCA discussed some of the language in Osborne Stern that would
appear in the Davis opinion issued shortly after AHCA’s Final Order in Avalon. AHCA’s modification to the above-quoted
conclusion was:
In accordance with the principles set forth in Department of Banking and Finance v.
Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996), AHCA must prove the alleged violations in the Administrative Complaint by clear and convincing evidence and Avalon must ultimately prove by a preponderance of the evidence that its license should be renewed notwithstanding the reasons AHCA gave for denying Avalon’s licensure renewal. (FO at 20).
The AHCA Final Order in Avalon was appealed, and the First District affirmed per curiam. See Avalon’s Assisted
Living, LLC v. Ag. for Health Care Admin, 187 So. 3d 1240 (Fla. 1st DCA 2016). As noted by Judge McArthur in Rise & Shine,
because a per curiam affirmance has no precedential value, it cannot be determined whether the court was agreeing with AHCA’s modifications as to burden and standard of proof in licensure
renewal cases combined with administrative complaint cases, or whether the court’s affirmance was on some other basis.
Analytically, the undersigned is aligned with the analysis reflected in the Recommended Orders in Avalon and in Rise & Shine. At the very least, as stated by Judge McArthur in
her Recommended Order in Rise & Shine, it must be recognized that Davis does not answer these questions, because the holding in
Davis hinged on the fact that the licensure case involved an
initial application in which the applicant had no property interest, as was also true in Osborne Stern, relied on by AHCA in
Avalon. Here, the licensee has already invested significant assets into the facility, and there are residents living there whose lives potentially will be disrupted should the Agency deny renewal of the license. With these interests clearly already in place, the clear and convincing standard is appropriate.
Having said that, in this particular case the burden and standard of proof issues are not outcome-determinative. In those instances where no violation was proven, the evidence presented did not demonstrate a violation by either standard.
With respect to the renewal of its license, Cristal Palace still retains the burden to show that it meets the requirements for re-licensure by a preponderance of the evidence.
This proceeding presented a multitude of allegations based on a variety of statutes and rules governing the operation
of ALFs. In some cases, the lack of evidence presented needs no further explanation. Other purported violations need more explanation in terms of the regulatory structure.
Assistance with Medication by Unlicensed Staff
In Count I of the First AC, Cristal Palace was charged with using unlicensed personnel to draw up insulin for a resident. In Count VII, Cristal Palace was tagged for issues related to improper procedures with respect to assisting residents with medication. In order to address these violations, an examination of several provisions is required.
Section 429.255(1)(a) describes the duties which a nurse licensed pursuant to part I of chapter 464, Florida Statutes, may perform in an ALF. It also provides that “nursing assistants certified pursuant to part II of chapter 464 may take residents’ vital signs as directed by a licensed nurse or physician.”
While CNAs have a certification pursuant to part II of chapter 464 which meets the definition of a license under section 120.52(10), they are not considered as “licensed” under the ALF regulatory scheme. Section 429.256 addresses assistance with self-administration of medication, and defines an “unlicensed person” as “an individual not currently licensed to practice nursing or medicine who is employed by or under contract to an assisted living facility and who has received training with
respect to assisting with self-administration of medication in an assisted living facility.” § 429.256(2), Fla. Stat. Section
429.256 further provides:
Assistance with self-administration of medication includes:
Taking the medication, in its previously dispensed, properly labeled container, including an insulin syringe that is prefilled with the proper dosage by a pharmacist and an insulin pen that is prefilled by the manufacturer, from where it is stored, and bringing it to the resident.
In the presence of the resident, reading the label, opening the container, removing a prescribed amount of medication from the container, and closing the container.
Placing an oral dosage in the resident’s hand or placing the dosage in another container and helping the resident by lifting the container to his or her mouth.
Applying topical medications.
Returning the medication container to proper storage.
Keeping a record of when a resident receives assistance with self-administration under this section.
Assisting with the use of a nebulizer, including removing the cap of a nebulizer, opening the unit dose of nebulizer solution, and pouring the prescribed premeasured dose of medication into the dispensing cup of the nebulizer.
Using a glucometer to perform blood- glucose level checks.
Assisting with putting on and taking off antiembolism stockings.
Assisting with applying and removing an oxygen cannula but not with titrating the prescribed oxygen settings.
Assisting with the use of a continuous positive airway pressure device but not with
titrating the prescribed setting of the device.
Assisting with measuring vital signs.
Assisting with colostomy bags.
Assistance with self-administration does not include:
Mixing, compounding, converting, or calculating medication doses, except for measuring a prescribed amount of liquid medication or breaking a scored tablet or crushing a tablet as prescribed.
The preparation of syringes for injection or the administration of medications by any injectable route.
Administration of medications by way of a tube inserted in a cavity of the body.
Administration of parenteral preparations.
Irrigations or debriding agents used in the treatment of a skin condition.
Rectal, urethral, or vaginal preparations.
Medications ordered by the physician or health care professional with prescriptive authority to be given “as needed,” unless the order is written with specific parameters that preclude independent judgment on the part of the unlicensed person, and at the request of a competent resident. (Emphasis added).
The Agency is granted rulemaking authority to establish facility procedures and to interpret terms necessary to implement this section, and has done so. Rule 58A-5.0185 address medication practices in ALFs.16/ With respect to assistance with self-administration of medications, the rule provides in pertinent part:
(3) ASSISTANCE WITH SELF-ADMINISTRATION.
Any unlicensed person providing assistance with self-administration of medication must be 18 years of age or older,
trained to assist with self administered medication pursuant to the training requirements of Rule 58A-5.0191, F.A.C., and must be available to assist residents with self-administered medications in accordance with procedures described in Section 429.256, F.S. and this rule.
In addition to the specifications of Section 429.256(3), F.S., assistance with self-administration of medication includes verbally prompting a resident to take medications as prescribed.
With respect to Count I, the Agency contends that the facility erred in allowing an unlicensed person to assist the resident with drawing up her insulin. Resolution of this issue requires a factual determination that the insulin that the resident was taking needed to be drawn up in a syringe, as opposed to being insulin that is pre-loaded. Section 429.256(4) clearly prohibits the preparation of a syringe, while section 429.256(3) permits an unlicensed person to provide a pre-loaded syringe to the resident. Here, the Agency did not provide any information from which it can be determined whether this resident’s insulin was pre-loaded, and thereby permissible for the med tech to provide to the resident, or needed to be drawn into a syringe, requiring actions by a nurse.17/ Without this crucial evidence, the Agency did not demonstrate by clear and convincing evidence that the assistance given to this resident was improper.
Count VII also addressed assistance with self- administration medicine. Resolution of this count requires a determination of what is meant by reading the label to a resident.
In both instances identified by the Agency, the med tech sanitized her hands, reviewed the MOR, retrieved the resident’s medications, placed the medications in a small cup, and gave them to the resident, identifying the medications by name. The Agency cited the facility because while the staff member identified each medication to the resident by name, she did not state the frequency and dosage, which the Agency asserts is required. Section 429.256(3)(b) requires that a staff member read the label in the presence of the resident. Rule 58A-5.0185(3)(b) states that the staff member’s assistance includes “verbally prompting the resident to take medications as prescribed.”
Neither the statute nor the rule states that the staff member must recite the frequency and dose of the medication.
Penal statutes and rules must be strictly construed in favor of the licensee. Elmariah v. Dep’t of Prof’l Reg., 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep’t of Prof’l Reg., 534
So. 2d 782, 784 (Fla. 1st DCA 1988). Here, the Agency acknowledged at hearing that not everything on a label had to be read aloud to a resident. The surveyor did not identify any statute or rule that specifically identified the requirement that what an unlicensed staff member must state out loud is the name,
frequency, and dose. As the Agency stated at hearing, the purpose for identifying the medication aloud is so that the resident is actively engaged in his or her own care. Without more clarity in the rule, a violation cannot be shown where the staff member in each case identified the medication aloud to the resident before observing the resident take the medication.
Even assuming for the sake of argument that the rule plainly required a staff member to recite the name, frequency, and dose, which it does not, the staff member here was clearly in substantial compliance with this requirement. Beverly Healthcare
Kissimmee v. Ag. for Health Care Admin, 870 So. 2d 208 (Fla. 5th DCA 2004).
Medication Storage
There are three instances where the Agency cited Cristal Palace for the failure to keep medications in locked locations at all times: in Count II of the First AC, and in the Second Amended NOI in survey reports dated June 8, 2016, and October 26, 2016. One of these tags was substantiated and two were not.
Rule 58A-5.0185(6) addresses the requirements for medication storage and disposal. It states, in pertinent part:
(6) MEDICATION STORAGE AND DISPOSAL.
In order to accommodate the needs and preferences of residents and to encourage residents to remain as independent as possible, residents may keep their
medications, both prescription and over-the- counter, in their possession both on or off the facility premises; or in their rooms or apartments, which must be kept locked when residents are absent, unless the medication is in a secure place within the rooms or apartments or in some other secure place that is out of sight of other residents. However, both prescription and over-the-counter medications for residents must be centrally stored if:
The facility administers the medication,
The resident requests central storage. The facility must maintain a list of all medications being stored pursuant to such a request,
The medication is determined and documented by the health care provider to be hazardous if kept in the personal possession of the person for whom it is prescribed,
The resident fails to maintain the medication in a safe manner as described in this paragraph,
The facility determines that because of physical arrangements and the conditions or habits of residents, the personal possession of medication by a resident poses a safety hazard to other residents, or
The facility’s rules and regulations require central storage of medication and that policy has been provided to the resident before admission as required in Rule 58A-5.0181, F.A.C.
Centrally stored medications must be:
1. Kept in a locked cabinet, locked cart, or other locked storage receptacle, room, or area at all times, . . . (Emphasis added).
With respect to Count II in the First AC, the surveyor who testified stated that she returned to the resident’s room after the resident was transported to the hospital. She found insulin inside the resident’s refrigerator.
The Agency did not establish whether this resident was one who kept her medications in her room. The rule identifies exceptions to the general policy of allowing resident self- storage, but no evidence was offered to establish that one of these exceptions applies. When the surveyor first entered the room, the resident was still occupying the room, so the rule did not require the room to be locked. She acknowledged that she did not wait to see if staff returned to the room after ensuring the resident was safely transported to the hospital. Moreover, she found the insulin in the refrigerator, not out in the open. Under these circumstances, the violation has not been established by clear and convincing evidence.
With respect to the June 8, 2016, survey, the evidence presented indicates that the pills seen by the surveyor were on the vanity in the bathroom of an occupied room. There was no evidence presented to indicate that the residents in this room were not permitted to keep medications in their room, and the room was occupied at the time the surveyor was there. The evidnece does not demonstrate a deficiency.
The unlocked medication cart, however, is another matter. The rule clearly requires that medications stored by the facility must be kept in a locked cabinet, locked cart, or other locked storage receptable at all times. Leaving a cart unlocked in the hallway is a clear deficiency.
Recordkeeping Deficiencies
One area where the Agency expressed great concern and where Cristal Palace clearly struggled is that of recordkeeping, specifically with respect to those records related to personnel. The three major areas of concern address background screening for personnel, documentation related to communicable disease and TB testing, and the completion of in-service training. While not all of the deficiencies alleged have been proven, these issues demonstrate a legitimate concern.
Rule 58A-5.024 identifies the type of records that an ALF must maintain with respect to the facility itself, the staff, and the residents. The rule provides in pertinent part:
The facility must maintain required records in a manner that makes such records readily available at the licensee’s physical address for review by a legally authorized entity. If records are maintained in an electronic format, facility staff must be readily available to access the data and produce the requested information. For purposes of this section, “readily available” means the ability to immediately produce documents, records, or other such data, either in electronic or paper format, upon request.
* * *
(2) STAFF RECORDS
(a) Personnel records for each staff member must contain, at a minimum, a copy of the employment application, with references furnished, and documentation verifying freedom from signs or symptoms or communicable disease. In addition, records must contain the following, as applicable:
Documentation of compliance with all staff training and continuing education required by Rule 58A-5.0191, F.A.C.,
Copies of all licenses or certifications for all staff providing services that require licensing or certification,
Documentation of compliance with level 2 background screening for all staff subject to screening requirements as specified in Section 429.174, F.S., and Rule 58A-5.019, F.A.C.
Rule 58A-5.0191(2) requires the following:
STAFF IN-SERVICE TRAINING. Facility administrators or managers shall provide or arrange for the following in-service training to facility staff:
Staff who provide direct care to residents, other than nurses, certified nursing assistants, or home health aides trained in accordance with Rule 59A-8.0095, F.A.C., must receive a minimum of 1 hour in- service training in infection control, including universal precautions, and facility sanitation procedures before providing personal care to residents. Documentation of compliance with the staff training requirements of 29 C.F.R. 1910.1030, relating to blood borne pathogens, may be used to meet this requirement.
Staff who provide direct care to residents must receive a minimum of 1 hour in- service training within 30 days of employment that covers the following subjects:
Reporting major incidents.
Reporting adverse incidents.
Facility emergency procedures including chain-of-command and staff roles relating to emergency evacuation.
Staff who provide direct care to residents, who have not taken the core training program, shall receive a minimum of 1 hour in-service training within 30 days of employment that covers the following subjects:
Resident rights in an assisted living facility.
Recognizing and reporting resident abuse, neglect, and exploitation.
Staff who provide direct care to residents, other than nurses, CNAs, or home health aides trained in accordance with Rule 59A-8.0095, F.A.C., must receive 3 hours of in-service training within 30 days of employment that covers the following subjects:
Resident behavior and needs.
Providing assistance with the activities of daily living.
Staff who prepare or serve food, who have not taken the assisted living facility core training must receive a minimum of 1-hour-in- service training within 30 days of employment in safe food handling practices.
All facility staff shall receive in- service training regarding the facility’s resident elopement response policies and procedures within thirty (30) days of employment.
* * *
(11) DO NOT RESUSCITATE ORDERS TRAINING.
Currently employed facility administrators, managers, direct care staff and staff involved in resident admissions must receive at least one hour of training in the facility’s policies and procedures regarding DNROs within 60 days after the effective date of this rule.
Newly hired facility administrators, managers, direct care staff and staff involved in resident admissions must receive at least one hour of training in the facility’s policy and procedures regarding DNROs within 30 days after employment.
There was evidence presented that indicated Mr. Dorra purchased a recognized program to provide in-service training for his employees. The problem here was not that the training was unavailable, but that the requirement for completion within
30 days was not strictly enforced. The Agency has proven the allegations related to this issue, as alleged in Counts IX and X of the First AC, and tag 81 and 90 cited during the October 18, 2016, survey and alleged in the Second Amended NOI.
Rule 58A-5.019(2) provides in pertinent part:
Within 30 days after beginning employment, newly hired staff must submit a written statement from a health care provider documenting that the individual does not have any signs or symptoms of communicable disease. The examination performed by the health care provider must have been conducted no earlier than 6 mnonths before submission of the statement. Newly hired staff does not include an employee transferring without a break in service from one facility to another when the facility is under the same management or or ownership.
1. Evidence of a negative tuberculosis examination must be documented on an annual basis. Documentation provided by the Florida Department of Health or a licensed health care provider certifying that there is a shortage of tuberculosis testing materials, shall satisfy the annual tuberculosis examination requirement.
The Agency has proven this violation, as alleged in Count XI of the First AC, by clear and convincing evidence. Here, it is not that the employee did not have a TB certification. Instead, the record shows that the TB documentation provided was not within the appropriate window of time.
With respect to background screening, section 429.174 states that the Agency shall require Level 2 background screening
as required in section 408.809(1)(e). Section 408.809 provides in pertinent part:
(e) Any person, as required by authorizing statutes, seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. . . .
(2) Every 5 years following his or her licensure, employment, or entry into a contract in a capacity that under subsection (1) would require level 2 background screening under chapter 435, each such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. . . .
Until a specified agency is fully implemented in the clearinghouse created under s. 435.12, the agency may accept as satisfying the requirements of this section proof of compliance with level 2 screening standards submitted within the previous
5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under chapter 651, provided that:
The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in s. 435.04 and this section;
The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and
Such proof is accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section using forms provided by the agency.
The Agency only proved one violation alleged with respect to background screening, i.e., Count III of the First AC, and that violation was corrected within 30 days. However, it is noted that the Agency cited, but did not prove, multiple other issues with respect to background screening, so it should be clear to the facility that compliance in this area is a major concern of the Agency. This type of violation, which is an unclassified violation, could easily be solved with stronger management enforcement of personnel issues.
Informed Consent
Count VIII of the First AC alleged that the informed consent regarding assistance with medications from unlicensed staff, dated February 18, 2016, for a particular resident did not indicate whether or not the unlicensed staff, who provided assistance, would be supervised by licensed staff.
Rule 58A-5.024(3)(g) requires that certain documentation to be kept on the premises, including “for facilities that will have unlicensed staff assisting the resident with the self-administration of medication, a copy of the written
informed consent described in Rule 58A-5.0181, F.A.C., if such
consent is not included in the resident’s contract.” (Emphasis added). As noted in the Findings of Fact, neither the informed consent form for this resident nor the resident’s contract was offered into evidence. Both would be required, as well as the 1823 to establish that the resident needed assistance with his or her medications. That was not presented here.
Adverse Incident Reports
The Agency has cited Cristal Palace repeatedly for failing to file adverse incident reports with respect to two incidents occurring at the facility. Administrators at Cristal Palace did not believe either event to be an adverse incident. However, given the statutory definition for an adverse incident, the Agency was correct to cite the facility on this basis.
Section 429.23 governs the filing of adverse incident reports and provides in pertinent part:
Every facility licensed under this part is required to maintain adverse incident reports. For purposes of this section, the term, “adverse incident” means:
An event over which facility personnel could exercise control rather than as a result of the resident’s condition and results in:
Death;
Brain or spinal damage;
Permanent disfigurement;
Fracture or dislocation of bones or joints;
Any condition that required medical attention to which the resident has not given
his or her consent, including failure to honor advanced directives;
Any condition that requires the transfer of the resident from the facility to a unit providing more acute care due to the incident rather than the resident’s condition before the incident; or
An event that is reported to law enforcement or its personnel for investigation; or
Resident elopement, if the elopement places the resident at risk of harm or injury.
Licensed facilities shall provide within 1 business day after the occurrence of an adverse incident, by electronic mail, facsimile, or United States mail, a preliminary report to the agency on all adverse incidents specified under this
section. The report must include information regarding the identity of the affected resident, the type of adverse incident, and the status of the facility’s investigation of the incident.
Licensed facilities shall provide within
15 days, by electronic mail, facsimile, or United States mail, a full report to the agency on all adverse incidents specified in this section. The report must include the results of the facility’s investigation into the adverse incident.
With respect to the “missing narcotics” resident, alleged in Count XIII of the First AC, it could be argued that the events resulting in the call to law enforcement were not events “over which facility personnel could exercise control.” However, facility personnel did exercise control over the dispensing of medication to residents, and that is the issue about which the resident was complaining. While the facility claims it was not an adverse incident because law enforcement did not file a police
report, that is not the standard. All that is required is an event that is reported to law enforcement or its personnel for investigation. That standard is met here.
With respect to the day resident, alleged at Count II of the Second AC, the allegations were also proven. Here again, law enforcement was called, even though it is unclear who contacted them. In addition, this incident involved an elopement, which is defined in rule 58A-5.0131(16) as “an occurrence in which a resident leaves a facility without following facility policy and procedures,” something that clearly happened here. The facility’s belief that no adverse incident reports were required in connection to this event is simply wrong, and the Agency has proven this count by clear and convincing evidence. Nonetheless, procedures, including the installation of a magnetic self-locking door, have been implemented to resolve the issue.
Finally, Count I of the Second AC charged the facility with violating rule 58A-5.0185(7)(f), which provides that “[t]he facility must make every reasonable effort to ensure that prescriptions for residents who receive assistance with medications with self-administration of medication or medication administration are filled or refilled in a timely manner.” The problem here is that the rule provides little guidance in terms of what constitutes “every reasonable effort.” Keeping in mind that penal provisions in disciplinary statutes and rules are strictly
construed in favor of the licensee, the Agency did not demonstrate that the efforts by the facility here, evidenced by multiple messages to both the physician and the pharmacy, did not constitute a reasonable effort.
Penalty
The Agency seeks to impose penalties for violations alleged in the First and Second ACs. Section 429.14 identifies the penalties that can be imposed in disciplinary proceedings against ALFs, and provides in pertinent part:
(1) In addition to the requirements of
part II of chapter 408, the agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in chapter 120 against a licensee for a violation of any provision of this part, part II of chapter 408, or applicable rules, or for any of the following actions by a licensee, any person subject to level 2 background screening under s. 408.809, or any facility staff:
An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.
A determination by the agency that the owner lacks the financial ability to provide continuing adequate care to residents.
Misappropriation or conversion of the property of a resident in the facility.
Failure to follow the criteria and procedures provided under part I of chapter
394 relating to the transportation, voluntary admission, and involuntary examination of a facility resident.
A citation for any of the following violations as specified in s. 429.19:
One or more cited class I violations.
Three or more cited class II violations.
Five or more cited class III violations that have been cited on a single survey and have not been corrected within the times specified.
Failure to comply with the background screening standards of this part,
s. 408.809(1), or chapter 435. (Emphasis added).
In the First AC, of the 20 counts alleged, the Agency proved three class III violations. Although all of them were eventually cleared by the Agency, it does not appear that they were cleared within the requisite time to avoid a fine. For those three class III violations, a fine of $1,500 is appropriate.
The Agency also proved three unclassified violations, one of which was cleared within 30 days. For these three violations, an additional $1,500 is appropriate.
Between the two Administrative Complaints, the Agency sought five survey fees. As noted in the Findings of Fact, the allegations with respect to Counts IV and VI in the First AC are identical, and inasmuch as the Agency did not identify what alleged deficiencies were the subject of a complaint, as required for the imposition of a survey fee pursuant to section 429.19(7), no basis for a survey fee has been shown. The Agency demonstrated a basis for the survey fee sought in Count XII of the First AC, for which a $500 fee should be imposed. The survey fee sought in Count XVII is a duplicate of Count XII. The Agency did not prove a basis for the survey fee in Count III of the Second AC.
The Agency seeks to revoke Cristal Palace’s license.
While admittedly there were some violations found, the violations actually proven pales in comparison to the plethora of violations charged and not proven. As noted in the Findings of Fact, Cristal Palace would benefit from a strong management team, but there is credible testimony that the facility is a beautiful one that provides a great opportunity for residents. Accordingly, revocation is not recommended.
Disposition of the Application for Renewal
With respect to the application for renewal, Cristal Palace bears the burden to prove that its renewal application meets the requirements for re-licensure. It points out, correctly, that the Agency has not identified any deficiency with its application for renewal. Everything listed in the Second Amended NOI addresses issues that predate the application.
As noted by Cristal Palace, the renewal process is governed by section 408.806, which provides in pertinent part:
(3)(a) Upon receipt of an application for a license, the agency shall examine the application and, within 30 days after receipt, notify the applicant in writing of any apparent errors or omissions and request any additional information required.
Requested information omitted from an application for licensure, license renewal, or change of ownership, other than an inspection, must be filed with the agency within 21 days after the agency’s request for omitted information or the application shall be deemed incomplete and shall be
withdrawn from further consideration and the fees shall be forfeited.
Within 60 days after the receipt of a complete application, the agency shall approve or deny the application.
(4)(a) Licensees subject to the provisions of this part shall be issued biennial licenses unless conditions of the license category specify a shorter license period.
* * *
(7)(a) An applicant must demonstrate compliance with the requirements of this part, authorizing statutes, and applicable rules during an inspection pursuant to s. 408.811, as required by authorizing statutes. (Emphasis added).
Section 408.811(1)(b), likewise, provides that “[i]nspections for relicensure shall be conducted biennially unless otherwise specified by authorizing statutes or applicable rules.”
Here, there is no evidence that the Agency conducted a biennial inspection in response to the application for renewal. It chose instead to rely on surveys conducted previously, but points to no authority that allows it to bypass this statutory directive.
The Agency cannot expect precision-like compliance from the facility and ignore its own responsibilities under its statutory scheme. It does not identify any authority to deny an application for renewal without conducting an inspection in
connection with the application, and the undersigned has found
none.
Indeed, section 408.806 requires that the applicant
show compliance during the inspection. Given that requirement, the application is incomplete at this time, not because of any deficiency identified with the facility’s application, but because of the failure by the Agency to complete the application renewal process before issuing the NOI.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order with respect to the Administrative Complaints docketed as Case Nos. 17-2149 and
17-2164 imposing $3,000 in administrative fines and assessing a survey fee in the amount of $500. It is further recommended with respect to Case No. 17-3849, that the Second Amended NOI be vacated and that the Agency complete the application review process by conducting a renewal inspection as required by sections 408.806 and 408.811, before taking agency action with respect to Cristal Palace’s renewal application.
DONE AND ENTERED this 29th day of June, 2018, in Tallahassee,
Leon County, Florida.
S
LISA SHEARER NELSON
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2018.
ENDNOTES
1/ The Agency’s exhibits consist of 17 survey Statements of Deficiency. Each has a cover sheet identifying the exhibit number and the survey date for the exhibit. Agency Exhibit 3’s cover sheet indicates that it is a survey dated October 21, 2015.
However, the document itself indicates that it is a revisit to complaint investigation #2015007966, which was conducted on March 1, 2016, and the date the survey was completed is also identified as March 1, 2016. Attached to this exhibit are ALF/AFCH Employee Review notes completed by Ms. Bulger on
October 21, 2015, with an event ID H4LM11. These notes appear to be identical to those attached to Exhibit 2, which has a different complaint number.
2/ Rule 58A-5.0185(4), cited by the Agency with respect to
Count I, specifies that with respect to medication administration, a staff member licensed to administer medications must be available to administer medications in accordance with a health care provider’s order. Rule 58A-5.0185(4)(c) specifies “medication administration includes conducting any examination or testing, such as blood glucose testing, or other procedure necessary for the proper administration of medicine that the resident cannot conduct personally and that can be performed by licensed staff.” Section 429.256 further defines what services
can be performed by unlicensed staff under the auspices of assistance with administration of medication. Whether a nurse is required with respect to insulin depends on whether an individualized dose must be drawn or whether pre-filled syringes are used where the dosage is already set. The 1823 for this resident indicated both a set dosage and a sliding scale dosage.
3/ Section 120.57(1)(c) specifies that hearsay is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions. There are statements in the surveys that the Agency may argue are statements of a party opponent, but the undersigned believes that to make such an argument, the Agency needed to identify these people by name and establish their job duties and that the statements made were made within the scope of their responsibilities. Lee v. Dep’t of HRS, 698 So. 2d 1194 (Fla. 1997).
4/ The 1823 for resident 5 lists 13 different medications, whereas the single page from the resident’s MOR lists only nine, and there is no more room on the page for additional medications to be listed.
5/ There was a passing mention to not having a satisfactory health department report, but that, standing alone, provides no information upon which a violation can reasonably be found.
6/ The facility was in inactive status during June 2015.
7/ The Agency states in its Proposed Recommended Order that “the surveyor brought the missing record to the attention of Cristal’s administrator/designee. Cristal was given the opportunity to locate the record but did not produce such documentation during the Agency’s survey visit.” The actual testimony was “[w]hen we review a resident record and if the information is not contained within the record, we discuss it with – with the person that the facility has designed [sic] that day to assist with the process. We give that person the opportunity to try to locate additional documentation that is not contained in the record. If at the end of the time of the–-during the end of the survey that documentation is not available to us, then we determinate that documentation is just not available.” While it may be inferred from the surveyor’s testimony that the question was asked of the administrator and the document not furnished, the question was not actually asked.
As an aside, it is noted that this case was made much more difficult by the Agency’s repeated failure to identify staff and
residents in the Transcript, so that the incidents could be more readily matched with the Administrative Complaints and with the survey documents.
8/ Clearly, this date must be wrong, as the Administrative Complaint was filed in January 2017, and referred to DOAH in April 2017. This particular concern was pointed out to counsel in
a telephone conference, but the Administrative Complaint was never amended to address this or any other issues.
9/ Ironically, immediately prior to her testimony regarding the discharge log, Ms. Pellot stated that while at a facility, they can make copies of documents or jot things down, and that now with Iphones they can scan copies of documents. It is unknown whether the surveyors used that technology here, because virtually none of the documents about which they testified were offered into evidence. Had they done so, results may have been different.
10/ The facility did not prove that an outing was actually scheduled for that day. The question regarding her knowledge, however, underscores the fact that an admission/discharge log will not always identify who is going to be in a facility where independence is supposed to be encouraged, at any given time.
11/ She also testified that the resident was not receiving ECC because he was wheelchair bound and had a catheter. There was no testimony to explain why these factors were a barrier to receiving ECC.
12/ Of course, any statement by Ms. Grainger, the person
Ms. Mobley called, would be hearsay. The reference is included not for the truth of whether the plan was acceptable, but to show Ms. Mobley’s efforts to make sure that the plan that had been prepared comported with the rules.
13/ One has to wonder if she was expecting them to supply documentation spontaneously prior to it being requested. She did not testify that the information requested was not provided.
14/ Rule 58A-5.0191(4)(a) provides that “[d]ocumentation 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 a provider approved by the Department of Health shall satisfy this requirement” that a staff member who has completed courses in first aid and CPR and holds a valid card documenting completion of the courses must be in the facility at all times.
The rule also specifies that staff members with certain kinds of licensure, such as nurses, emergency medical technicians, or paramedics, are considered to have satisfied all or part of this requirement. Because the record does not identify the role of the staff member, there is no way to determine whether the requirement was met through licensure.
15/ Mr. Dorra emailed the surveyor at 9:02 a.m. the next morning, detailing his efforts and what steps he had taken in response to both the fraud on the account and her request for documentation.
16/ Rule 58A-5.0185 was amended, effective May 10, 2018, after the hearing in this case. The version referenced in this proceeding is the one in effect beginning March 13, 2014, because in disciplinary proceedings, the rule in effect at the time of the conduct is the rule applied, as opposed to any amended version of the rule later adopted. See McCloskey v. Dep’t of Fin. Servs.,
115 So. 3d 441 (Fla. 1st DCA 2013); Jordan v. Dep’t of Prof’l Reg., 522 So. 2d 450 (Fla. 1st DCA 1988).
17/ There are references in the record to the requirement that the law does not allow unlicensed personnel to draw up insulin, and that providing insulin through a needle requires a nurse.
However, there is no evidence to determine whether this insulin was pre-loaded or not.
COPIES FURNISHED:
Thomas J. Walsh, II, Esquire
Agency for Health Care Administration Suite 330D
525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed)
Nicola Brown, Esquire
Agency for Health Care Administration Suite 330H
525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed)
John E. Terrel, Esquire John E. Terrel, P.A. Suite 11-116
1700 North Monroe Street Tallahassee, Florida 32303 (eServed)
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Stefan Grow, General Counsel
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Justin Senior, Secretary
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Shena Grantham, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Thomas M. Hoeler, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
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 |
|---|---|---|
| Aug. 14, 2018 | Agency Final Order | |
| Jun. 29, 2018 | Recommended Order | The Agency proved a limited number of class III and unclassified violations warranting fines and a survey fee. The Agency did not complete its statutory obligation with respect to the license renewal. |
