The Issue The parties have agreed that the following issues are to be determined: Whether Section 246.215, Florida Statutes, requires Petitioners and similarly situated home health agencies to first obtain a license or authorization from the State Board of Independent Postsecondary Vocational, Technical, Trade, and Business Schools before offering a program of training. Whether Petitioner, Compassionate Care Health Services, Inc., and similarly situated home health agencies are exempt from the licensure requirement in Section 246.215, Florida Statutes, by application of the provision of Section 246.201, Florida Statutes, which states: ny school or business, regulated by the state or approved, certified, or regulated by the Federal Aviation Administration is hereby expressly exempt from ss. 246.201-246.231. . . . Whether Petitioner, Compassionate Care Health Services, Inc., and similarly situated home health agencies are exempt from the licensure requirement in Section 246.215, Florida Statutes, because they are excluded from the definition of "school" in Section 246.203(1), Florida Statutes, by application of the following underlined language within that definition: [S]chools offering only examination preparation courses for which they do not award a diploma as defined in subsection (6) do not fall under the authority granted in ss. 246.201-246.231; nor does a nonprofit class provided and operated entirely by an employer, a group of employers in related business or industry, or a labor union solely for its employees or prospective employees or members.
Findings Of Fact The parties stipulated that they desired a determination of the issues set forth in the Statement of the Issues to three sets of factual scenarios: Set A, Set B, and Set C. Each set of the factual scenarios has additional facts or presumptions which are common to that set. The facts set forth in paragraphs 2-8 below, are common to all the factual scenarios. Compassionate Care Health Services, Inc., (Compassionate Care) is a Florida corporation, whose principal place of business is located at 1600 Sarno Road, Suite 214, Melbourne, Florida 32935. Compassionate Care holds a license, issued pursuant to Chapter 400, Part IV, Florida Statutes, as a "home health agency," as defined in Section 400.462(4), Florida Statutes. The home health services provided by Compassionate Care include, but are not limited to, "home health aide" services. Compassionate Care offers a program of training which teaches the knowledge and skills needed for an individual to meet the qualifications and training requirements to be employed as a home health aide in accordance with the rules adopted by the Agency for Health Care Administration (AHCA), pursuant to Section 400.497(2), Florida Statutes. Compassionate Care selects individuals for enrollment in its training program from among those who apply. Compassionate Care charges and receives a monetary fee from each individual enrolled in the training program. Compassionate Care provides to each individual who completes the training program a transcript reflecting the individual's performance within the training program. The parties stipulated that for the purposes of Set A of the factual scenarios that it is presumed that the training program meets all requirements to be a "nonprofit class" within the meaning of Section 246.203(1), Florida Statutes. Further, the parties stipulated that at or prior to the time of enrollment in the training program and payment of the fee, each trainee is hired by Compassionate Care with a designated status of employee- trainee. Set A is divided into three factual scenarios: A-1, A- 2, and A-3. Factual scenario A-1 consists of the common facts set forth in paragraphs 2-9, supra, and the facts set forth in paragraphs 12-14, below. Prior to being hired as an employee-trainee, the applicant is determined by Compassionate Care to have passed the statutory background check. Upon being hired as an employee-trainee, the employee trainee receives a salary and benefits which comply with at least the minimum requirements under applicable labor laws. At the time an applicant is hired as an employee- trainee, there is established as an express term and condition of employment that if the employee-trainee successfully completes the training program, the employee-trainee will be reassigned to the employment status of home health aide and will have the same employment security and will receive assignments, salary, and benefits which are the same for all other home health aides employed by Compassionate Care, subject only to pay classifications and seniority rules that apply equally to all home health aides employed by Compassionate Care. Factual scenario A-2 is the same as factual scenario A-1, except the background check is not done until the employee- trainee has successfully completed the training program; and the terms and conditions of employment under which the employee- trainee will be reassigned to a home health aide position includes passing the statutory background check as well as successfully completing the training program. Factual scenario A-3 is the same as factual scenario A-1 except that the employee-trainee status is nominal, in that the employee-trainee receives no salary or benefits until reassigned to a home health aide position. The parties stipulated that for the purposes of Set B it is presumed that the training program meets all requirements to be a "nonprofit class" within the meaning of Section 246.203(1), Florida Statutes. Further for the purposes of Set B, the parties stipulated that no trainee has any employment status with Compassionate Care prior to or during the training program. Set B is divided into four factual scenarios: B-1, B-2, B-3, and B-4. Factual scenario B-1 consists of the facts set forth in paragraphs 2-8 and 17, supra, and the facts set forth in paragraphs 20 and 21, below. As a part of the written enrollment agreement or as a separate writing at or prior to the time of enrollment, Compassionate Care covenants that it will offer employment with Compassionate Care as a home health aide to each trainee who successfully completes the training program and passes the statutory background check. Each trainee who successfully completes the training program and who passes the statutory background check is, in fact, offered employment with Compassionate Care as a home health aide with rights to assignments, salary, and benefits which are the same for all other home health aides employed by Compassionate Care, subject only to pay classifications and seniority rules that apply equally to all home health aides employed by Compassionate Care. Factual scenario B-2 is the same as factual scenario B-1, except Compassionate Care offers employment as a home health aide to some, but not all, trainees who successfully complete the training program and pass the statutory background check. Compassionate Care asserts that its decision to not offer employment to all of the trainees who successfully complete the training program and pass the statutory background check is based on business circumstances which result in a need for fewer home health aides than had been anticipated or a determination that the trainees who are not offered employment are unsuitable because of personality, or temperament, or personal circumstances of the trainee other than specific instances of serious misconduct. Factual scenario B-3 consists of the facts set forth in paragraphs 2-8 and 17, supra, and the facts set forth in paragraphs 24 and 25, below. At or prior to the time of enrollment, each trainee is told in writing that "employment opportunities are available" to those who successfully complete the training program and pass the statutory background check and each trainee is given the opportunity to complete an employment application. Each trainee who successfully completes the training program, passes the statutory background check, and has completed an employment application, in fact, is offered employment with Compassionate Care as a home health aide. Factual scenario B-4 is the same as B-3, except that Compassionate Care offers employment as a home health aide to some, but not all, of the trainees who successfully complete the training program, pass the statutory background check, and complete an employment application. The parties stipulated that for the purposes of Set C, it is presumed that each trainee would be an "employee" or "prospective employee" within the meaning of Section 240.203(1), Florida Statutes. Further, the parties stipulated that the activities of the training program take place in Compassionate Care's principal place of business at 1600 Sarno Road, Suite 214, Melbourne, Florida. Set C is divided into four factual scenarios: C-1, C-2, C-3 , and C-4. Factual scenario C-1 consists of the facts set forth in paragraphs 2-8 and 27, supra, and the facts set forth in paragraphs 30 and 31, below. The activities of the training program take place during the normal business day while Compassionate Care is otherwise engaging in the business of being a licensed home health agency. The amount of the fee paid to Compassionate Care by trainees is calculated as the sum of the following factors: the actual cost to Compassionate Care of the books, workbooks, disposable medical supplies, and paper supplies provided to each trainee; each trainee's pro rata share of the salaries of training program instructors and of medical equipment rented exclusively for purposes or the training program; each trainee's pro rata share, based on hourly salary rate and hours spent teaching. Factual scenario C-2 is the same as C-1 except that additional cost factors are included in computing the amount of the fee paid by trainees. The additional factors include a portion of Compassionate Care's costs for rent and utilities. Factual scenario C-3 is the same as C-2, except that the training activities take place after the close of normal business hours of Compassionate Care's place of business at 1600 Sarno Road, Suite 214, Melbourne, Florida. Factual scenario C-4 is the same as C-2, except that the amount of the fee paid by the trainees represents a profit for Compassionate Care because it exceeds the sum of the cost factors addressed in factual scenarios C-1 and C-2.
The Issue The issue is whether the license of Rev. Harris to operate a foster home should be terminated by the Department for the reasons stated in the Department's letter of October 7, 1988.
Findings Of Fact The Reverend Melda Harris provided foster care to children in the custody of the Department of Health and Rehabilitative Services (the Department). She became the foster parent of four siblings, Clive Davidson (born 9/30/78), Iman Davidson (born 1/1/80), Joy Davidson (born 7/24/81), and Lucky Davidson (born 12/2/83). The older children had been placed with Rev. Harris in 1985, the younger two were placed with Rev. Harris in 1987. The Davidson children had been abused by their natural parents and had been removed from their care; the extent and nature of the abuse is not clear from the testimony. A letter from Howard Marcus and Dr. Harvey Parker to the Department dated June 21, 1988, indicates that the natural parents were physically violent, the parents were frequently separated, and that ultimately the natural parents disappeared. The oldest sibling, Clive, was approximately 9 years old. He was being seen by a therapist, Art Jones, M.S.W., who was of the opinion that Clive should be separated from his siblings because of aggressiveness (physical violence), but especially because he had attempted on at least two separate occasions to simulate intercourse with his seven year old sister, Joy, while clothed. Therapy at the Henderson Mental Health Center was terminated because the therapist was of the opinion that Clive's sexual problems and propensity to act out further with his sister could not be dealt with effectively while he remained in the same home as his sister. According to Dr. Parker and Mr. Marcus, Clive engaged another little girl in simulated intercourse with him. On that occasion, both were unclothed. Joy Davidson was in treatment at the Broward County Sexual Assault Treatment Center due to her experiences with Clive. Rev. Melda Harris is a deeply religious woman who brought all the children up in a religious atmosphere. The children were actively involved in Massonic organizations where they interacted with other children. Rev. Harris selected the movies the children would watch, and generally they would watch a religious television station in the Broward County area (Channel 45), although they were not exclusively limited to that form of television. The children were also seen regularly by Ann E. Vaughn, who was their guardian ad litem for a period of four years before they were placed with Rev. Harris. Ms. Vaughn continued in that role after their placement in the Harris foster home. Ms. Vaughn would visit the home without prior appointments, there is no reason to believe that what Ms. Vaughn saw was not typical of the interaction of Rev. Harris and the children at the foster home. Ms. Vaughn was of the opinion that all the children had love and affection for Rev. Harris and that she did not concentrate her affections only on the youngest child, Lucky. The children generally stayed in the fenced-in yard at the Harris home because drug activity in the neighborhood made it unsafe for them to play in the street and because of the heavy traffic in the street outside the home. Ms. Vaughn was also worried the children's natural father would occasionally slip into the area, and Rev. Harris was concerned about leaving the children outside out the fenced area of the residence due to fear that the father might try to kidnap them. The most serious problem which the Department had with Rev. Harris occurred on August 10, 1988, when she came to the HRS office with Clive, and asked to return him to HRS custody. The Department was adamant that if she was not willing to keep Clive, the Department would remove the other children from her home in order to keep the siblings together. The Department staff took offense at Rev. Harris' action. In view of the serious consequences which could arise from further incidents of sexual acting out by Clive against his younger sister, Joy, it was entirely appropriate for Rev. Harris to be concerned about his remaining in the home, especially when the social worker assigned as Clive's therapist had resigned from the case in May of 1988 out of a belief that "Clive's sexual problems and propensity for further acting out in that manner, could not be effectively dealt with so long as he remained in the same home as his sister." (Respondent's late-filed exhibit, page 4, letter of June 21, 1988, from Howard Marcus and Harvey C. Parker, Ph.D., to Deborah Owens.) It is also significant, however, that Rev. Harris' decision to return Clive to HRS is not listed as one of the grounds the agency cited in its October 7, 1988, letter stating the Department's decision to close Rev. Harris' foster home.
Recommendation It is recommended that a final order be entered by the Secretary of the Department of Health and Rehabilitative Services dismissing the allegations contained in the letter of October 7, 1988, which forms the basis for the Department's notice of intention to close Rev. Harris' foster home (and implicitly to revoke her license to operate a foster home), and that her license be fully reinstated. RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of July 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1338 Rulings on findings proposed by the Department: The description of the children is adopted in Finding of Fact 1. The description of Ms. Andrews is rejected as unnecessary. Generally rejected because the question whether the children were allowed to eat is not at issue based on the charging document the Department mailed to Rev. Harris. Based upon the testimony of the Department's witnesses, I do not, believe that the children were not allowed to eat for an entire day, although the children may have said that. Whether the children were allowed to play outside the home and were restricted to viewing a religious television station are discussed in Findings of Fact 3 and 4. and 4. Rejected as unnecessary and irrelevant to the charges filed. The "additional concerns" are not appropriate because they are not the basis for the charge filed. Moreover, locking the children in their bedrooms was a misguided but understandable precaution given the concern about sexual acting out by Clive. The children were permitted to play outside, in their yard, and they did visit with other children especially at religious functions they attended, and at school. The children were not limited to watching a religious television channel. See, Finding of Fact 3. The allegation that Rev. Harris showed favoritism to Lucky is rejected. See, Finding of Fact 4. Precisely what it means to "speak poorly to the natural parents in front of the children" is not clear (Department proposed finding 5E). It is unreasonable to believe that the family unit could have been strengthened. The relationship with the children's natural parents has been severed by their adoption, and the removal from the custody of the natural parents appears to have been entirely appropriate. Similarly, the allegation that statements made by Rev. Harris "created concern" is difficult to understand, since there is no indication that there is any legal standard to be applied which forbids conduct by foster parents which "creates concern" among Department staff. Obviously Clive had serious problems, over and above his sexual problems, as indicated by the records placed in evidence. Surely Rev. Harris was not required to ignore instances of lying or stealing. It is by no means appropriate to conclude that Rev. Harris breached "a confidentially standard" (whatever that might be) because Ms. Johnson-Gilcort wrote that Clive "rape his sister and was no good." Ms. Johnson-Gilcort did not testify, and is not clear that Ms. Johnson-Gilcort's characterization of Clive in the letter had its source in Rev. Harris. Adopted in Finding of Fact 5. Rejected as inconsistent with the charging document, the October 7, 1988, letter. The issues for hearing were not framed in the letter dated September 12, 1988. Rejected as irrelevant to the issues framed for hearing. 9 and 10. Adopted in the Preliminary Statement. Generally adopted in the Preliminary Statement. Adopted in the Preliminary Statement, although this is not an "appeal." The testimony of Rev. Harris is addressed and generally adopted in Finding of Fact 5. Rejected as argument and irrelevant. The question is not whether Ms. Harris received a letter of August 11, 1988, but whether the Department could prove the allegations made in its letter of October 7, 1988, which it drafted, and which framed the issues for hearing. Generally adopted in Finding of Fact 4. 16 - 18.Rejected as unnecessary. COPIES FURNISHED: Jacqueline S. Banke, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Room 513 Fort Lauderdale, Florida 33301-1885 Rev. Melda Harris 681 N.W. 37th Avenue Lauderhill, Florida 23311 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented in this case is whether Respondents' foster home license should be revoked.
Findings Of Fact Respondents were first licensed as a family foster home in April 1994. As a result of Respondents' obtaining a foster home license, the Department put in their care: M.A1.A and M.Au.A, brother and sister; and, J.H. and L.H., brother and sister. M.Au.A was nine years old and her brother M.A1.A was eight years old. J.H. was eight years old and his sister, L.H., was five years old. J.H. and L.H. were later adopted by their foster parents, Robert and Irene Holmes. J.H. was born September 2, 1991. He was, and is, a very troubled young man. Schizophrenia runs in his biological family and his mother abused chemicals during her pregnancy. He is diagnosed with Attention Deficit-Hyperactivity Disorder (ADHD) and has episodes of violence, aggression, unpredictability, poor impulse control, and agitation. He is likely to be pre-schizophrenic and, given his behavior, could develop full schizophrenia in the future. Even though only diagnosed with ADHD and in addition to stimulant medication prescribed for his ADHD, J.H. takes several psychotropic medications generally prescribed for manic and depressive behavior and other mood disorders. However, these drugs do not seem to fully control his behavior. Because of his aggression and severe behavior problems, J.H. has been involuntarily committed multiple times and has been repeatedly recommended for a residential, therapeutic foster home placement. Unfortunately, for various reasons, the Department has not provided J.H. a residential, therapeutic foster home placement. On October 7, 1999, the Department received an allegation of abuse against Respondents. The allegation involved J.H. The allegations involved alleged favoritism of L.H. over J.H., abandoning J.H. with teachers, emotional abuse, and not wanting him in their home. The Department's investigation, on very tenuous evidence, verified abuse for neglect - abandonment; neglect - failure to protect; abuse - other mental injury; neglect - inadequate supervision; and abuse - confinement/bizarre punishment. The report further found some indication of medical neglect and other physical injury-threatened harm. Because of the abuse report, the Department took L.H. and J.H. into shelter care on October 8, 1999, and filed a dependency action regarding J.H., Case No. 99-628-CJ. Additionally, based on the verified findings of the abuse report, the Department revoked Respondents' foster home license. By Order of the Circuit Court dated July 12, 2000, the dependency action was dismissed for lack of evidence and an utter lack of co-operation by Department's personnel and witnesses during the dependency action. J.H. was returned to Respondents' home and has remained with them to date. L.H. was returned to Respondents' home sometime before her brother's dependency action was concluded. Put simply, at the hearing, none of the allegations of the abuse report or facts supporting the verified findings were supported by the evidence since only uncorroborated hearsay was introduced at the hearing. Moreover, even though the evidence was hearsay, many of the allegations appeared from all the testimony to have been taken out of context and given meanings which were not warranted when their context was known. Significantly, the Department did not call J.H. to testify about any of these allegations. To the contrary, the testimony of various witnesses indicated that Respondents did, in fact, keep a very neat, tidy, and orderly foster household and that J.H. was not abused or neglected. The evidence presented by Respondents and the testimony of their witnesses indicate that J.H. was provided a safe environment. The teachers provided temporary care during the period of time alleged to be when Respondents were neglecting J.H. by being out of town. The witnesses, including the teachers, stated that the plan was that they would care for J.H. until the return of Respondents. Furthermore, there was never any indication that the child was mistreated or neglected or left without care by Mrs. Holmes after returning from a wedding out-of-state. Finally, there was no evidence of noncompliance with any treatment plan, that the multiple involuntary commitments were in any way mentally abusive of J.H., or that the quiet times J.H. needed to calm himself were intended to be time-out punishment or were inappropriate or bizarre punishments of J.H. Because the allegations of abuse were not established, there is no basis on which to revoke Respondents' foster home license. Therefore, Respondents are entitled to their foster home license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Children and Family Services enter a final order not revoking Robert and Irene Holmes' family foster home license. DONE AND ENTERED this 24th day of December, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 2001. COPIES FURNISHED: Keith J. Ganobsik, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Charles P. Vaughn, Esquire 120 North Seminole Avenue Inverness, Florida 34450-4125 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Should Respondent, Agency for Health Care Administration, rate Petitioner's, Beverly Healthcare Evans, nursing home facility license "Conditional" for the 60-day period of January 8 through March 5, 2001, pursuant to Section 400.23(7), Florida Statutes? In particular, did Petitioner commit the acts or omissions alleged in Tags F281, F326, and F426 as determined in Respondent's periodic survey concluded on November 15, 2000? Are Tags F281, F326, and F426 "Class III" deficiencies as defined in Section 400.23(8)(b), Florida Statutes (2000)? Did the results of Respondent's survey concluded on January 8, 2001, reveal "Class III" deficiencies that were uncorrected on or before February 8, 2001, the time specified by Respondent? If so, was Petitioner's "Conditional" rating for the 60-day period of January 8 through March 5, 2001, appropriate?
Findings Of Fact Evans is a nursing home located at 5405 Babcock Street, Northeast, Fort Myers, Florida, which is duly-licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, it is required to evaluate nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes. AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. This standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288, Florida Administrative Code, which provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. Non-certified facilities must follow the contents of this rule and the standards contained in the Conditions of Participation found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference with respect to social services, dental services, infection control, dietary and the therapies. AHCA conducted an annual survey of Evans on November 15, 2000, and alleged that there were three deficiencies. These deficiencies were organized and described in a survey report by "Tags," numbered F281, F326, and F426. The results of the survey were noted on an AHCA form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to this form as the HCFA 2567-L or the "2567." AHCA conducted a follow-up survey of Evans, which was completed on January 8, 2001. The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identified each alleged deficiency by reference to a Tag number. Each Tag on the 2567 includes a narrative description of the allegations against Evans and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number (Resident 1, etc.) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The ratings reflect the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There are three Tags (F281, F326, and F426) at issue in the case at bar, and, as a result of the November 15, 2000, survey, AHCA assigned each Tag a Class III deficiency rating. Tag F281 generally alleged that Evans failed to meet professional standards of quality, evidenced by examples of three residents, in violation of 42 C.F.R. Section 483.20(k)(3)(i), which provides: Comprehensive Care Plans The services provided or arranged by the facility must--- Meet professional standards of quality. Tag F326 generally alleged that Evans failed to ensure that a resident received a therapeutic diet, when there was a nutritional problem, in violation of 42 C.F.R. Section 483.25(i)(2), which provides, in pertinent part: (i) Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident--. (2) Receives a therapeutic diet when there is a nutritional problem. Tag F426 generally alleged that Evans failed to provide pharmaceutical services to meet the needs of the residents, evidenced by examples of three residents, in violation of 42 C.F.R. Section 483.60(a), which provides: Procedures. A facility must provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident. The November 15, 2000, survey cites three Class III deficiencies. AHCA's January 8, 2001, survey cites repeated (or failure to correct the three) Class III tag violations cited in the November 15, 2000, survey. Effective January 8, 2001, AHCA changed the rating of Evans' license from Standard to Conditional. Tag F281 - NOVEMBER 15, 2000 - SURVEY Tag F281, a Class III deficiency, generally alleged that Evans failed to meet professional standards of quality of care regarding three residents in violation of 42 C.F.R. Section 483.20(k)(3)(i). Glenn T. Boyles, a surveyor/pharmacist for AHCA and qualified as an expert pharmacist, testified that a nurse for Evans, on November 15, 2000, was observed not to have followed the professional standards and quality in preparing and administering medications for three residents. Boyles observed the nurse preparing the drug Colace for administration by removing the medications from the manufacturer's bottle and placing the medications into her hand before placing these medications into a soufflé cup. Boyles also observed the same nurse pre-pour two doses of Colace liquid for administration to two other residents. Medications are not to be pre-poured or touched with the fingers except when opening a capsule to empty the medication into a cup, which is not the case here. The correct number of tablets or capsules are to be poured directly into the medication cup. In a discussion with the Director of Nurses for Evans about the above observations, the Director of Nurses substantially acknowledged that the nurse's actions were an inappropriate standard of practice. Boyles opined that there was an increased risk of contamination; there was a potential for subsequent infectious conditions that would affect the resident; pre-pouring the medication increased the opportunity for the dosages to be contaminated by organisms of an infectious nature which could, in turn, be transferred to the resident; and there was an increased risk of administering the medications to the wrong residents. Evans' contention that hand washing by the nurse prior to administering medications and the length of time the Colace capsule was in contact with the nurse's hands resulted in minimizing the chance of actual contamination misses the mark of no hands on the actual medication to be administered and no pre- pouring as was the case here. Based upon Findings of Fact 11 through 16 hereinabove, AHCA has proved that Evans failed to follow policy and to meet the professional standards of quality in preparing and administering medications regarding the three residents who were subjects of Tag F281 as to the November 15, 2000, survey. TAG F281 - JANUARY 8, 2001 - SURVEY Tag F281, a Class III deficiency, generally alleges that Evans failed to meet professional standards of quality of care regarding Resident 2 and Resident 7. Resident 2 Lori Riddle, AHCA's surveyor, during the January 8, 2001, follow-up survey of the November 15, 2000, survey, conducted a survey involving Resident 2. A review of Resident 2's medical records revealed multiple diagnoses, one of which was convulsions, for which the anti-convulsant medication Dilantin was prescribed to be taken four times a day. The importance of taking the anti-convulsant medication Dilantin as prescribed is to maintain a therapeutic level of the drug in the body to prevent convulsions. Resident 2's medical administration record (MAR) reflected that the resident refused medication, by spitting out the Dilantin, on seven different occasions in December 2000 and on five different occasions in January 2001. Resident 2 was not taking the medication as prescribed, and there was no documentation by Evans' staff that the physician had been alerted to the fact that Resident 2 was not taking the prescribed medication. It was the responsibility of Evans' nursing staff to inform the physician that Resident 2 was not taking the prescribed medication, for whatever reason. Evans had no documentation or facility staff testimony evidencing the fact that a nurse contacted the physician concerning Resident 2 spitting out the prescribed medication, Dilantin. Dr. Dosani, resident physician, after completion of the January 8, 2001, survey, informed the surveyor that the doctor had been notified that Resident 2 was spitting out the prescribed medication, Dalantin. Jim Marrione, expert in nursing practices and procedures, opined that Evans failed to provide services that met professional standards of quality as to Resident 2 under the facts and circumstances presented at the time. Evans does not contest and, in fact, agreed that its staff did not document Resident 2's repeated spitting out of the Dalantin and, thus, was not in compliance of assuring the accurate dosage of prescribed medication. Failure to document Resident 2 spitting out the medication at the time it occurred, when coupled with the failure to document advising the resident's physician of the situation, resulted in Resident 2 not receiving medication four times a day. AHCA has proved the allegations regarding Resident 2, Tag F281 of the January 8, 2001, survey, regarding the failure to properly medicate the resident with anti-convulsant medication, Dilantin, four times a day. Resident 7 Jim Marrione, a surveyor and an expert in nursing practices and procedures, conducted a survey of Resident 7 during the survey of January 8, 2001. According to Marrione, Resident 7 suffered pneumonia and chronic airway obstruction and hypoxemia. In his opinion, Evans was out of compliance with standards of practice for the following reasons: (i) failure to document daily record of oxygen saturation rates as ordered by the physician on October 23, 2000; (ii) failure to document the monitoring of daily oxygen saturation on December 25 and 26, 2000; and (iii) failure to document the monitoring of daily oxygen saturation on January 3, 4, 5, and 6, 2001. Daily monitoring of the oxygen saturation rate indicated that the doctor wanted to make sure that the resident's saturation rate was maintained at an acceptable level. The potential harm that results from the failure to document the saturation rate is respiratory failure of the resident. This failure to document the daily oxygen saturation rate was beneath the professional standards of quality and in violation of the Nursing Practice Act. Evans' contention that other manifested physical symptoms would be more observable indicators of respiratory failure begs the question of quality care that is intended to avoid and prevent, when possible, respiratory failure in residents. The standard of care does not permit substitution of more observable indicators of potential respiratory failure. AHCA has proven Evans' failure to document the daily record of oxygen saturation rates; failure to document the monitoring of daily oxygen saturation on December 25 and 26, 2000; and failure to document the monitoring of daily oxygen saturation on January 3, 4, 5, and 6, 2001. TAG F326 - NOVEMBER 15, 2000 - SURVEY Tag F326, a Class III deficiency, generally alleges that Evans failed to ensure that Resident 6 received a therapeutic diet,1 when there was a nutritional problem, in violation of 42 C.F.R. Section 483.25(i)(2). Resident 6 Mary Maloney, an expert in nutrition, surveyed Resident 6 who had multiple diagnoses, including being severely underweight, chronic renal failure, diabetes, dysphagia (difficulty in swallowing), and other conditions that caused him to be much debilitated, bed bound and, therefore, requiring a specialized tube feeding formula for diabetes and a gastrostomy tube for the dysphagia. According to Maloney, Resident 6's ideal body weight (IBW) was 136 pounds; therefore, the care plan goal for this resident was weight increase. Evans' nutritional assessment for Resident 6 dated September 19, 2000, revealed that the resident weighed 122 pounds on September 9, 2000, and his caloric needs were 1,706 per day. The nutritional assessment dated September 25, 2000, assessed Resident 6's caloric needs at 1,6ll calories; however, the resident was only receiving 1,380 calories. Evans' dietician recommended increasing the tube feeding from 60ccs to 65ccs over a 23-hour period, providing 1,495 calories over a 24-hour period. The caloric increase recommended by Evans' dietician, in Maloney's expert opinion, did not meet Resident 6's caloric needs. Maloney opined that the initial assessment documented Resident 6 as underweight and did not include sufficient additional calories to promote weight gain (the target weight of 136 pounds). Even with the additional tube feeding increase to provide 1,495 calories, there was a deficit of 116 calories from the initial assessment of 1,611 calories. Inquiry was made of an Evans' dietician, Andrea, as to why Resident 6 was not receiving the calorie amount assessed (1,495 calories), to which she replied that Resident 6 had hemoptysis (spitting up blood). Review of Resident 6's medical records revealed only periodically excessive sputum and no documented episodes specifically related to hemoptysis. In the opinion of Maloney, not receiving enough calories for this resident, who was underweight and suffering with pressure sores, may have delayed healing of the pressure sores and resulted in a continued weight loss. Further, holistic consideration of Resident 6's debilitated condition, with the addition of a failure to receive sufficient calories, over time would not assist but would rather delay or defeat Resident 6's efforts to reach the resident's highest practicable condition. AHCA has proven, by a preponderance of the evidence, the allegations of failure of Evans to provide therapeutic diet for the nutritional problems suffered by Resident 6, Tag F326 of the November 15, 2000, survey. TAG F326 - JANUARY 8, 2001 - SURVEY Resident 7 AHCA surveyor, Jim Marrione, testified concerning Resident 7. Evans stipulated to the factual allegations contained in paragraph 2 of Tag F326 of the survey report of January 8, 2001, to wit: Based on the record review, observations and interview with the Dietician and staff nurse two (Resident 7 and Resident 10) of 13 active residents of the facility were sampled. Resident 7 was admitted to the facility with multiple diagnoses, including dysphagia (difficulty in swallowing). The medical orders on October 23, 2000, revealed that Resident 7 was to receive thickened liquids, nectar consistency, that the resident was capable of swallowing. The nectar-thickened liquids were a mechanically altered and therapeutic diet plan. Evans was to protect the resident from receiving any thin liquids that could cause him difficulty in swallowing. The potential for harm to this resident could have been choking if given non-thickened juices or water. On January 7, 2001, the surveyor observed Resident 7 being given non-thickened orange juice, and on January 8, 2001, again observed Resident 7 being given non-thickened water. Resident 10 Surveyor Norbert Smith's deposition testimony was admitted in lieu of his personal appearance. Evans objected to Smith's deposition testimony that was not related to and/or specifically contained in the 2567 survey report dated January 8, 2001. Resident 10 was admitted to the facility on May 24, 2000, whose diagnoses included dysphagia (difficulty in swallowing). The physician's order of September 23, 2000, required a "pureed" NCS (No Concentrated Sweets) diet, and the order of October 24, 2000, gives instruction to thicken all liquids to honey consistency for all meals, med passes, and activities. Smith observed Resident 10 on January 7, 2001, in the dining room, and at 12:40 p.m., observed the resident being served prune juice thickened by Evans' Quality Assurance Director (QAD) to the consistency of Jell-O and served soup that did not appear to be of honey consistency. The surveyor opined that the Mighty Shake (milk shake) being served Resident 10 did not appear to be honey-thickened. When Smith queried Evans' nurse about the Mighty Shake's thickness, she replied, "This is as close to honey thickened as they get." Smith inquired of Evans' QAD if the Mighty Shake and soup were honey thickened, and the QAD acknowledged she did not know. Evans' dietician became involved in this issue and confirmed that the soup served to Resident 10 was nectar- thickened and the Mighty Shake had to be further thickened to be considered honey-thickened. In the afternoon of January 7, 2001, Smith entered Resident 10's room and asked the staff nurse in the room at that time to check if the water on Resident 10's bedside stand was honey-thickened. Upon examination by the staff nurse, she determined that the water was not honey-thickened. Smith defined "dysphagia" as a condition where one's windpipe does not cover when swallowing, as it should. Therefore, when people suffering with dysphagia drink a liquid, unless thickened, that person could choke or aspirate and possibly die. Evans' two contentions: (1) AHCA's November allegation concerned "adequate diet to maintain acceptable nutritional status," was purportedly corrected; and (2) AHCA's January allegations of non-thickened liquids is different from the November allegation or at best is de minimus, are inadequate. AHCA has proven by a preponderance of evidence the allegation that Evans failed to thicken all liquids to honey consistency for all meals, med passes, and activities with regard to Resident 10 and, therefore, did not ensure that the resident received a therapeutic diet as ordered by the physician. TAG F426 - NOVEMBER 15, 2000 - SURVEY Tag F426, a Class III deficiency, generally alleges that Evans failed to provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents, in violation of 42 C.F.R. Section 483.60(a). Glenn T. Boyles, AHCA's surveyor/pharmacist, gave testimony regarding allegations of paragraph 1 of Tag F426 of the November 15, 2000, survey report. According to Boyles, based upon his observations, record review and interviews with staff, he determined that Evans did not provide pharmaceutical services to meet the needs of three residents. Boyles testified that in his opinion a nurse failed to wait the federally prescribed amount of time (five minutes) between administering eye drops, and did not properly measure the prescribed amount of Abuterol solution (eye drops) for administration. The above-observed deficiencies created the potential for harm to the resident that would be more than minimal because the physician had ordered the resident to receive the medication's effect of two eye drops. The improper administration caused the resident to receive the medication's effect of only one eye drop. The improper administration also created the potential for harm because the physician had ordered a prescribed amount of solution to be used, and the nurse, when preparing the medication, did not properly measure the amount prescribed by the physician. In paragraph 2 of Tag F426 of the survey report, Boyles found two instances of non-compliance by Evans. First, Evans stocked an expired tube of ointment and allowed the expired medication to remain in the medication room. In doing so, Evans did not take steps to limit the possibility that the resident may receive a less than full potency antibiotic ointment. An outdated and expired antibiotic would not be as strong in combating the infection for which it was prescribed. Second, Evans failed to return medications prescribed for a resident who left the facility two months before the survey. The failure to return medication violated Evans' policy that states a medication form must be completed within 15 days of discharge (of a resident), and the policy sets out the procedure to be taken (return or destroy) with medications based on the class of the medication. In Boyles' opinion, the potential for harm is that Evans did not preclude the diversion to a resident or staff for whom the medications were not intended. Evans did not dispute the above Findings of Fact numbered 49 through 53, contending that the SOM guidelines contained no directive to surveyors to cite medication administration error as violations of the Tag, but rather directed surveyors to determine whether Evans' system provides that Evans' pharmaceutical services result in medication being available to residents. The requirement is clear that Evans must provide pharmaceutical services (including procedures that ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident. AHCA has proved by a preponderance of the evidence that Evans failed to provide pharmaceutical services (including procedures that ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents hereinabove cited. In paragraph 3 of Tag F426 of the survey report of November 15, 2000, Boyles reported (subsection A) that Evans failed to administer medications from September 20, 2000, to October 28, 2000, to a resident on dialysis. In the opinion of Boyles, this omission resulted from the failure of Evans' staff to comply with the physician's instructions that they "may" omit the resident's medications on days the resident underwent dialysis treatment, i.e. Tuesday, Thursday, and Saturday. Boyles further opined that Evans was to "hold" (not administer) these medications three days a week before the dialysis treatments. Boyles opined that Evans' nurses disregarded the physician's "hold" medication instructions and gave the medication before dialysis treatment on the above days. In Boyles' opinion, the medication and its effect was subsequently removed by the dialysis treatment. Further, Evan's staff did not re-administer the medication after each dialysis treatment, and thereby, did not ensure the accurate administration of medication as called for by 42 C.F.R. Section 483.60(a). Regarding paragraph 3 of Tag F426 of the survey report (subsection B) of November 15, 2000, Boyles reported that Evans was non-compliant for its failure to ensure accurate administration of drugs to Resident 4. This resident's physician prescribed the drugs Vasotec (for hypertension) and Diflucan. Both drugs, after being administered, were removed by the resident's dialysis treatment on Tuesdays, Thursdays, and Saturdays. Boyles opined that Evans, knowing the drugs were removed by dialysis, should have given Resident 4 supplemental doses of the prescribed drugs on Tuesdays, Thursdays, and Saturdays, after dialysis treatment. Boyles opined that the potential harm would be the negative effect that the absence of the anti-hypertension medication would have on the resident's ability to excrete urine, an added complication to the resident's dialysis treatment. As to paragraph 3 of Tag F426 (subsection A) Evans contends that the physician's order stated "may" withhold medications on dialysis days and that Boyles' opinion that Evans should have withheld medication until after dialysis treatment (or administered medication after dialysis treatment) would be in violation of the physician's order. Evans points to the fact that on October 28, 2000, the physician clarified the order to indicate that Evans should "not" (with) hold administration of medications on dialysis days. Evans' position hereinabove does not address the failure to ensure "accurate" administration of drugs to Resident 4. Should Evans' nursing staff doubt, question or be confused regarding the intent and meaning of the physician's instructions or content of the order, they were under professional obligation to seek clarification from the physician so as to maintain the required standard to ensure accurate administration of drugs on dialysis days. Accordingly, AHCA has proven by a preponderance of evidence that Evans failed to provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents in paragraphs 1, 2, and 3 of Tag F426. TAG F426 - JANUARY 8, 2001 - SURVEY In the January 8, 2001, survey report, Tag F426, ACHA determined that Evans failed to provide pharmaceutical services to meet the needs of the residents, in violation of 42 C.F.R. Section 483.60(a). It was alleged by AHCA that Evans failed to comply with the regulations because Evans did not ensure accurate dispensing and administrating of drugs to meet the needs of each resident. The surveyor observed expired drugs in the A Wing and B Wing refrigerators. AHCA further alleged that Evans did not ensure that residents received their medications within one hour before and after the scheduled medication time. Lori Riddle, surveyor, testified that Evans' nurse was still passing out medications to residents at 12:00 noon. Evans does not dispute that morning medication for the A Wing were to be administered at 9:00 a.m. Mariana Yingling informed Riddle that she was an "Evans" nurse, paid by Evans. She admitted that even though the medications were not timely administered, she signed off as having given the medications at 9:00 a.m. Nurse Yingling acknowledged that as an Evans' nurse, she believed she was to be held to the same standards of nursing as a regular full-time employee responsible for ensuring compliance with Evans' policy: to wit, medications are to be administered within one hour before and one hour after the scheduled time, which was 9:00 a.m. for the A Wing and the B Wing. In Riddle's opinion, the potential for harm to residents if the drugs were not timely administered would be that the effectiveness of the drugs would be affected. If drugs were administered too close in time, there would exist a potential for toxicity and other related side effects. It is undisputed that four residents did not receive their medication in a timely fashion in violation of Evans' own policy. AHCA has proven by a preponderance of the evidence that Evans failed to provide pharmaceutical services (including procedures that ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents as alleged under Tag F426. Evans does not dispute the above facts in Tag F426. On January 8, 2001, Jim Marrione, a registered nurse surveyor, saw medication in the medication room of the A Wing that expired "after 12/21/00." Marrione was informed by an Evans' nurse that the drug belonged to a resident who had died "last week," confirming that the drug should have been discarded as required by Evan's policy. On the above date, Marrione looked in the refrigerator of the B Wing medication room and found that two bottles of Ri Max, an over-the-counter antacid, were stored in the refrigerator and had expired on "12/00." Marrione opined that the potential for harm existed with the expired medications because of their lost of potency, which deprived the residents of the intended full benefits of the medications. Evans did not dispute the allegations regarding the expired medications in the refrigerators located in the A Wing and in the B Wing of the facility. Accordingly, AHCA proved, by a preponderance of the evidence, that Evans failed to ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals to meet the needs of each resident by Findings of Fact 62 through 69 hereinabove.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered in which Respondent assigns Petitioner a Conditional license for the period of January 8, 2001 through March 5, 2001. DONE AND ENTERED this 8th day of October, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2002.
The Issue The issue is whether revocation of the foster home care license of Petitioner was properly based upon his abuse of a child in his care.
Findings Of Fact Under Sections 409.175(3)(a) and 409.175(4)(a), Florida Statutes, the Department of Children and Family Services is the state agency responsible for licensing and monitoring foster care homes. Under Section 409.175(8), Florida Statutes, the Department has authority to deny, suspend, or revoke a foster home license. At all times material to this case, Petitioner, Steven A. Schick, was a licensed foster care parent in Pasco County, Florida. C. B., a 13-year-old male, was a foster child in Petitioner's care from late November 1999 until his removal from Petitioner's foster care home on or about January 6, 2000, by the Department of Children and Family Services. At the final hearing, and after questioning, C. B. was found competent to testify. On more than one occasion, usually late at night, Petitioner entered C. B.'s room and fondled his genitals. On at least one of these late night visits, C. B. felt what he believed to be Petitioner's mouth touching his genitals. C. B. explained that initially he was afraid to report these incidents to adults for fear that they would not believe him. He did not report these incidents to the Department because he feared a return to the Personal Enrichment through the Mental Health Services (PEMHS) program facility. C. B. is presently taking Aderol, a depression medicine, and he was taking his medication during the late night visits to his room by Petitioner. C. B. told his friend, A. B., and A. B.'s mother about Petitioner's late night visits on or about January 6, 2000. An abuse report was called into the Department, who called the police. The police arrived at Petitioner's residence approximately 11:00 p.m. on January 6, 2000, interviewed C. B., A. B., A. B.'s mother, and the Petitioner. C. B.'s testimony did not vary significantly from the testimony of Deputy Bradford Seltman, the first police officer on the scene, or from the allegations contained in the Abuse Report #2000-3014. Petitioner denied the allegations made by C. B. during C. B.'s seven-week stay in Petitioner's home as a foster child. Petitioner offered uncorroborated speculation on C. B.'s motive in making the abuse allegations, to wit: C. B. became resentful after he became aware that Petitioner was going to adopt another boy; C. B. had a fight at school resulting in an in-school suspension; C. B. and A. B. having been caught viewing an internet sex site and ordered by Petitioner to stop and go to bed; C. B. wanted to spend the night at A. B.'s house and when ordered by Petitioner to come home he became angry, and C. B., having many opportunities, did not mention those allegations to any adults prior to January 6, 2000. C. B., in his testimony, admitted the truth of the several incidents testified to by Petitioner. C. B. refuted, however, Petitioner's assertion that those incidents were the reason he told A. B. and A. B.'s mother of the sexual encounters that had occurred over the seven-week period of time he was in Petitioner's care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services, enter a Final Order revoking the foster care license of Petitioner, Steven A. Schick. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2001. COPIES FURNISHED: Keith J. Ganobsik, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Nicholas L. Ottaviano, Esquire Sharp, Ottaviano, & Barnes 24710 U.S. Highway 19 North, Suite 104 Clearwater, Florida 33763 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
The Issue Whether Respondent, a licensed assisted living facility (ALF), committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to regulate ALFs licensed pursuant to Chapter 400, Florida Statutes. At all times pertinent to this proceeding Ms. Rodriguez was an owner and administrator of Respondent, an ALF licensed by Petitioner. Respondent operates in Broward County, Florida. At all times pertinent to this proceeding, ALF administrators were required to receive core training administered by the Florida Department of Elder Affairs. At the time she took the core training, Ms. Rodriguez was not required to pass a final examination. Section 400.452(2), Florida Statutes, provides, in part, that effective July 1, 1997, all persons taking the core training must pass a competency examination to be administered by the Department of Elderly Affairs. 4. Effective April 20, 1998, Rule 58A-5.0191(1)(e), Florida Administrative Code, provides that any ALF administrator who did not attend mandatory periodic training updates must retake core training and must pass the competency examination. In 1998 and 1999, Ms. Rodriguez failed to attend mandatory training updates. On April 11, 2000, Maryanne Clancey conducted a survey of Respondent's facility. Ms. Clancey cited two Class III deficiencies that are pertinent to this proceeding. The first deficiency was Ms. Rodriguez's failure to attend mandatory core training updates. That failure justified the first Class III deficiency cited by Ms. Clancey. The second deficiency was the Respondent's failure to maintain an accurate up-to-date Medication Observation Record (MOR), which is required for each resident of an ALF. Ms. Clancey's determination that Respondent's MOR was inaccurate was based on the records for a resident of the ALF who will be referred to as Resident 1. Resident 1's record reflected that he had received certain prescribed medications at 9:00 a.m. on the morning of April 11, 2000. There was a conflict in the evidence as to whether Resident 1 was available to take his medicine at 9:00 a.m. on April 11, 2000. Ms. Clancey testified that she had been told by staff that Resident 1 was in the hospital that morning. Ms. Rodriguez testified Resident 1 had gone to the hospital during the early morning hours on April 11, 2000, but that Resident 1 had returned from the hospital by 9:00 a.m. that day. There was no other evidence as to whether Resident 1 had or had not taken his prescribed medicine that day. Based on the conflict between equally credible testimony, it cannot be determined that Resident 1 was not at the facility at 9:00 a.m. on April 11, 2000, as alleged by Petitioner, and it cannot be concluded that Resident 1 did not take his or her prescribed medicine that day. The alleged Class III deficiency pertaining to medical records should not be sustained based on the allegation that Resident 1 could not have taken his prescribed medicine as reflected on the MOR. The Class III deficiency pertaining to the medical records did not depend alone on the allegation that Resident 1 could not have taken his prescribed medicine on April 11, 2000. Ms. Clancey also observed that Resident 1's MOR for the month of March 2000 reflected that Resident 1 had received Cyprohepatadine three times a day for the entire month. There was no indication that Resident 1 had been administered Prozac. Ms. Clancey determined from Resident 1's pharmacist that Resident 1's physician had discontinued Cyprohepatadine on March 28 and had ordered Prozac on March 15. Ms. Rodriguez admitted that Resident 1's medical records failed to reflect those changes. The inaccuracies in Resident 1's MOR justified the second Class III deficiency cited by Ms. Clancey. Respondent was ordered to correct both Class III deficiencies by May 10, 2000. George Tokesky is the ALF Program Manager for the Department of Elder Affairs in Broward County, Florida. Ms. Rodriguez contacted Mr. Tokesky after Ms. Clancey's visit to determine what she needed to do about the core training. Mr. Tokesky explained to her that she would have to retake the core training program and pass the competency examination. Ms. Rodriguez took the core training program from June 6 to June 13, 2000, but she failed the competency examination. As of the final hearing, Ms. Rodriguez had not passed the competency examination. On June 27, 2000, Leonard Meerow conducted a follow-up visit at Respondent's facility to determine whether the facility had corrected the Class III deficiencies that Ms. Clancey had cited. The first Class III deficiency cited by Ms. Clancey pertaining to Ms. Rodriguez's core training had not been corrected. Mr. Meerow observed continued Class III deficiencies pertaining to medical records during the follow-up visit. Specifically, MOR records for three residents reflected that each resident had been administered his or her hour of sleep medication. The entries had been made before 4:00 p.m. Ms. Rodriguez admitted that these entries were incorrect. The second Class III deficiency cited by Ms. Clancey pertaining to medical records had not been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent failed to timely correct two Class III deficiencies. Petitioner should assess an administrative fine against Respondent in the amount of $1,000 per violation. DONE AND ENTERED this 21st day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2001.
The Issue In its petition, Florida Psychiatric Centers (FPC) alleges that HRS seeks to grant a CON to Florida Residential Treatment Centers, Inc. (FRTC), based on the agency's unpromulgated policy that ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (Petition, page 2, paragraph 6.) FPC argues that the policy is a "rule" and is invalid as a rule because it has not been adopted pursuant to Section 120.54, F.S., and because it conflicts with Sections 381.493, F.S., and 381.494, regarding need criteria. Further, FPC argues the "rule" is arbitrary and violates due process because the agency predetermines need regardless of the availability of like and existing services. HRS and Intervenor, FRTC, argue that the policy is incipient and needs not be promulgated. Further, the policy does not obviate a determination of need. HRS and FRTC claim that FPC lacks standing to bring this action, as its facility is a hospital and not the same as an intensive residential treatment program. HRS admits that the alleged policy has not been promulgated under Section 120.54, F.S. The issues for determination in this proceeding are summarized as follows: Whether FPC has standing to bring this action; Whether HRS has a policy regarding CON approval of intensive residential treatment programs, and whether that policy is a "rule"; and If the policy is a rule, is it an invalid rule?
Findings Of Fact FPC is a partnership which has received CON #2654 to construct a 100- bed psychiatric hospital in the Plantation/Sunrise area of West Broward County. The facility is under construction and will include 80 short-term psychiatric beds (40 geriatric, 15 adolescent, and 25 adult beds) and 20 short-term substance abuse beds. FPC anticipates an average length of stay of approximately 28 days for adults and less than 60 days for adolescents. FRTC is owned by Charter Medical Corporation. It proposes to build and operate a 60-bed intensive residential treatment program for children and adolescents in Broward County. The proposed facility will treat children and adolescents in need of psychiatric services. Its anticipated average length of stay is approximately one year. If it is awarded a certificate of need, FRTC intends to obtain licensing by HRS pursuant to Chapter 395, F.S., and Chapter 10D-28 F.A.C. No other facility licensed as an intensive residential treatment program, as defined in subsection 395.002(8), F.S. (1987), is available in Broward County. On March 11, 1987, HRS issued CON #4851 to FRTC for its 60-bed facility. A challenge to that CON is pending in DOAH consolidated cases #87- 2046/87-2400/87-2401. FPC is a petitioner in the case, with Florida Medical Center and South Broward Hospital District. Section 395.002(8), F.S., defines "Intensive Residential Treatment Programs for Children and Adolescents as: . . . a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of 18 having psychiatric disorders in order to restore such patients to an optimal level of functioning. When completed, FPC will be accredited by the Joint Commission on Accreditation of Hospitals; it will provide 24-hour care and will have the primary function of diagnosis and treatment of patients with psychiatric disorders and problems of substance abuse. Unlike the other psychiatric hospitals in Broward County, FPC will have a campus-like setting and separate buildings for the various services. FPC will not be a locked facility. With the exception of the length of stay, the services provided by FPC for its adolescent patients will be essentially the same as an intensive residential treatment program, as defined above. Until recently, HRS has had very few CON applications for intensive residential treatment programs. HRS has considered that these programs must undergo CON review only if they seek licensure as a specialty hospital. In considering need for intensive treatment programs, HRS does not consider unlicensed residential treatment programs to be like and existing services because HRS is not required to review unlicensed facilities; HRS would not have any way of knowing all the programs in operation and would have no control over the services offered. This policy is similar to the policy HRS employed in conducting CON review of ambulatory surgery centers. In those cases, HRS did not consider the outpatient surgery being performed in physicians' offices. Because the legislature has created a special definition of intensive residential treatment facility, and because the State Health Plan seeks a continuum of mental health services, HRS presumes there is a need for a reasonably sized intensive residential treatment facility in each planning district. This presumption can be rebutted with evidence in a given case, such as the fact that the district has few children with mental illnesses, or that such programs have been tried and failed, or that parents in the area prefer to send their children outside the district. Moreover, any applicant for a CON for an intensive residential treatment facility must evidence compliance with the myriad criteria in Section 381.705, F.S. (1987), and in Chapter 10-5, F.A.C. Although there is no specific bed need methodology adopted by HRS for intensive residential treatment facilities, other psychiatric services, such as long-term psychiatric care, are also evaluated without a numeric bed need methodology. HRS has applied its presumption of need policy in intensive residential treatment program CON reviews at least since 1983. One reason why the policy has not been adopted as a rule is that there have been so few applications in that category. In the experience of Elizabeth Dudek, Health Facilities and Services Consultant Supervisor, the first level supervisor for CON review, there were merely three applications of this type prior to a recent batch of three more applications. FPC's Petition to Determine Invalidity of Agency Rule(s) alleges that HRS' policy is ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (paragraph 6) FPC further alleges that HRS construes Chapter 395 as requiring it to ". . . automatically approve at least one residential treatment center in each DHRS health planning district regardless of whether the statutory criteria for need in Section 381.494(b), F.S. [renumbered and amended as Section 381.705, F.S., in 1987] would be met by the applicant." (paragraph #7) These allegations were not proven in this proceeding and are rejected in favor of the less rigid presumption of need policy described in findings of fact #7 and #8, above.
The Issue The issue in this case is whether the Petitioner's license rating for all or some of the time between February 26 and June 1, 1998, should be conditional or standard.
Findings Of Fact When surveyed by AHCA on February 24 through 26, 1998, Spanish Gardens had a license which would expire and have to be renewed on May 31, 1998. The facility had a license rating of superior. For the preceding year (from June 1, 1996, through May 31, 1997), the facility had a license rating of standard. During the survey, a disabled resident told a surveyor that the resident recently had complained to a nurse at the facility that a certified nurse assistant (CNA) had roughly handled the resident while transferring her into her bed, causing redness on the resident's arm, but that the facility did nothing about it. The surveyor viewed the resident's arm to verify the alleged incident. The surveyor also found a nurse's note for February 18, 1998, which mentioned the resident's complaint. On inquiring, the surveyor found that neither the administrator of the facility nor the director of nursing knew about the complaint and that the facility had not telephoned the Central Abuse Registry Hotline (the abuse hotline.) The "Guidance to Surveyors - Long Term Care Facilities" defined "abuse," in pertinent part, as "the willful infliction of injury . . . with resulting physical harm or pain." The surveyor decided to report the alleged incident to the facility's administration and to telephone the abuse hotline herself. The nurse's note stated that the resident first alleged that incident occurred on February 16, 1998; when the CNA, who also was present at the time the complaint was made, stated that he was not working on that day, the resident alleged that the incident had occurred the following day or, directing her comment to the CNA, "whenever you were here." The nurse noted a small red area on the inside of the resident's arm. The resident denied having any complaint of pain. The resident then told the nurse, "I just wanted to tell on him (the CNA)," and laughed. The survey team did not interview the nurse although she was on-duty during part of the time the survey team was at the facility. In fact, the nurse had made a professional judgment that the evidence before her did not give her reason to believe that any abuse had occurred. The survey team also interviewed a group of residents, several of whom complained that the staff at Spanish Gardens was slow to answer the call button located in residents' rooms. It was difficult if not impossible for Spanish Gardens to defend itself against the specific allegations that it had ignored residents' calls for assistance. AHCA never identified the residents who had made the complaints. However, AHCA presented no evidence that any resident was harmed or suffered medically in any way from staff's response time when called for assistance. Slow response to calls for assistance is a common complaint in nursing homes and does not in itself prove neglect. There are a number of reasons why the speed of staff's response may not satisfy a resident. Often, unbeknownst to the resident, staff is attending to the call of another resident whose needs are judged to be a higher priority. Other times, again unbeknownst to the resident, the resident's call for non- emergency assistance may require the attention of a particular staff member who may not be available at the time. The evidence was that Spanish Gardens responds reasonably quickly to residents' calls for assistance. Subject to higher priorities, the nearest staff member responds and assists when able; sometimes, another staff member with special expertise, knowledge, or skills must be summoned. Spanish Gardens does not ignore residents' complaints regarding staff response time. The evidence was that meetings have been held to allow residents to raise complaints of various kinds. Predictably, these included complaints regarding staff response time. Spanish Gardens has attempted to address these as well as the other complaints raised in these meetings. The survey team could not find the abuse hotline telephone number posted anywhere in the facility. When the survey team asked to see the facility's written policies on prevention of abuse and neglect, they were shown a document entitled "Suspected Abuse/Neglect of Residents." The document stated the facility's policy: "Any or suspected abuse/neglect of residents shall be referred immediately to the Administrator for investigation." It also stated the facility's procedures: Any staff, family member, friend, who suspects possible abuse/neglect of a resident shall report to the Administrator and Director of Nursing Services immediately. An incident report shall be completed to include all pertinent information of the alleged abuse/neglect. The Director of Nurses or the Administrator will notify the Abuse Hotline (1-800-96-ABUSE). An in house investigation with concerned parties and action to be taken will be conducted. Since the facility is charged with the responsibility of protecting the resident it will be necessary to terminate employee(s) that may be involved if allegations are found to be substantiated. If it is found that it is a family member, or friend who is responsible for the abuse/neglect, such finding shall be turned over to area adult protection agency. It may be necessary to report any substantiated abuse/neglect to appropriate regulatory agencies in accordance with their established policy regarding abuse/neglect. The survey team was not satisfied with the written policy and procedure presented because it did not require staff to report and call in all allegations or complaints of abuse or neglect but rather only known abuse, "suspected" abuse, or "suspected possible" abuse. In an attempt to satisfy the survey team, the facility produced a document entitled, "Adult Abuse Public Law No. 299 Policy," which related to a law prohibiting: battery; placing a dependent in danger to life or health; abandoning or cruelly confining a dependent; and exploiting a dependent by misuse of the dependent's resources. The facility also produced a document entitled, "Grievance Procedure," which informed residents and their family and friends to express concerns to the Charge Nurse, the Director of Nursing, the Department Supervisor, and the Executive Director. It also included two telephone numbers for the Ombudsman, neither of which was the abuse hotline telephone number. The survey team did not review any employee or resident files for additional documentation; nor did the facility produce any for the survey team's review. In accordance with normal procedure, the survey team reported the results of the survey on a federal Health Care Financing Administration (HCFA) form 2567 (the 2567). Under the Statement of Deficiencies "Tag" F224, the 2567 alleged violations of 42 C.F.R. Section 483.13(c)(1)(i) for failure to "develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property" and for "use [of] verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion." For purposes of the 2567, the survey team gave the alleged deficiency a federal scope and severity rating of "G." The federal scope and severity ratings range from "A" (for the least serious) to "L" (for the most serious). A deficiency with a rating of "G" is not considered "substandard quality of care" under the federal scope and severity rating system. For purposes of the 2567, the survey team also gave the alleged deficiency a state classification of Class II. The state classifications are from Class I (for the most serious) to Class III (for the least serious). See Conclusion of Law 28, infra. Based on the 2567, AHCA replaced the facility's superior license with a license having a conditional rating from February 26 through May 31, 1998, when the license would expire and have to be renewed. In response to the 2567 and conditional rating, Spanish Gardens requested a formal administrative hearing, as well as an informal dispute resolution (IDR) conference. At the IDR, the facility's new administrator informed the IDR panel that, since at least 1994, all employees (including himself when he began his employment, coincidentally, during the survey conducted February 24 through 26, 1998,) were required to sign an "Abuse, Neglect, and Exploitation Policy." It states: It is the policy of this facility to protect it's [sic] residents from abuse, neglect, and exploitation by providing a safe and protected environment. Any person who knows or has reasonable cause to suspect that a resident is an abused, neglected or exploited person shall immediately report such knowledge or suspicion to the Control Abuse Registry (Toll Free Telephone Number 1-800-342-9152) and to the Facility Administrator. The statewide toll-free telephone number for the Control Abuse Registry shall be posted on the Facility Bulletin Board and in each Employee Lounge. Employees who commit acts of abuse, neglect, and/or exploitation are subject to criminal prosecution and/or fines. Employees who witness acts of abuse, neglect, and/or exploitation are required to report them immediately. Failure to report can also result in criminal prosecution and/or fines. * * * No employee of this facility will be subjected to reprisal for reporting abuse, neglect or exploitation. . . . Any employee who has been reported for abuse, will be suspended from work until any and all investigations have been completed. If the investigation confirms the employee committed an act of abuse, neglect, or exploitation, that employee shall be terminated immediately. . . . All employees of this facility will be inserviced on this policy and the consequences of abuse, neglect and exploitation during their initial orientation and alt least once annually. A complete copy of the Florida law on Abuse, Neglect, and exploitation [sic](Section 415, Florida Statutes) [sic] is on file in the Administrator's office and available for inspection upon request. Spanish Gardens also produced at the IDR conference a copy of a Resource Contact List that included a telephone number for the abuse hotline. The facility's administrator testified at final hearing that the list was given to all residents at the time of admission. However, he was not employed at the facility prior to the survey, and it is not clear from his testimony that the list was in use as described at the time of the survey. Notwithstanding the additional information presented to it, the IDR panel declined to rescind the Petitioner's conditional rating. The panel did not believe that the "Abuse, Neglect, and Exploitation Policy" was in effect at the time of the survey; in fact, it was. The IDR panel also decided that, even if the policy had been in effect, it did not require employees to report and call in all allegations or complaints of abuse or neglect but rather only known abuse, reasonably suspected, or suspected abuse. Finally, the panel decided that, if construed to require employees to report and call in all allegations or complaints of abuse or neglect, the "Abuse, Neglect, and Exploitation Policy" was not being followed since the resident's complaint was not either reported to the facility's administration or telephoned to the abuse hotline. The "Guidance to Surveyors - Long Term Care Facilities" states in part: The intent of this regulation [42 C.F.R. § 483.13(1)(c)] is to assure that the facility has in place an effective system that regardless of the source (staff, other residents, visitors, etc), prevents mistreatment, neglect and abuse of residents, and misappropriation of resident's property. Over the years, Spanish Gardens has reported eighteen incidents of suspected abuse or neglect to the abuse hotline. No abuse or neglect has been substantiated in any of these incidents. Never before has Spanish Gardens been cited in a survey for any deficiency relating to abuse or neglect of residents. As required, regardless whether a facility agrees with the Statement of Deficiencies in a 2567, Spanish Gardens submitted a Plan of Correction. The facility's Plan of Correction stated that it does not constitute an admission or agreement with the alleged deficiencies. The Plan of Correction reported that Adult Protective Services had investigated the alleged abuse called in by the surveyor on February 26, 1998, and had concluded that the allegation was unfounded. Otherwise, the Plan of Correction essentially stated that written policies for prevention of abuse, neglect, and exploitation were in place and that the facility's administration would conduct inservices with staff and conferences with residents and the Resident Council to ensure that the policies were understood and followed. The Plan of Correction also stated that it had again posted the abuse hotline telephone number in four different places, one behind the locked glass bulletin board. The Plan of Correction stated that it would be completed by March 26, 1998, and the evidence was that the Plan of Correction was completed by the time promised. On May 1, 1998, a team from AHCA re-surveyed Spanish Gardens and satisfied itself that the Plan of Correction had been completed and that the alleged deficiency had been corrected. On May 13, 1998, AHCA notified Spanish Gardens of the results of the re-survey. However, AHCA took no action with respect to the facility's license until June 1, 1998, when AHCA renewed the license with a standard rating for the period from June 1, 1998, through May 31, 1999. Although the Petitioner's license rating had been superior, it only requests that its license rating for the period from February 26 through May 31, 1998, be made standard. See Petition for Formal Administrative Hearing and Proposed Recommended Order of Spanish Gardens.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding a Class III deficiency and assigning a standard rating to the Petitioner's license for the time period from February 26 through May 31, 1998. DONE AND ENTERED this 18th day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 18th day of September, 1998. COPIES FURNISHED: Donna Stinson, Esquire R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 Karel Baarslag, Esquire Agency for Health Care Administration Regional Services Center 2295 Victoria Avenue, Room 309 Fort Myers, Florida 33901 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
