Findings Of Fact During times material hereto, Respondent, Ray C. Dorman, is the owner and administrator of Scarlet Manor. Scarlet Manor is an adult congregate living facility at 13009 Lake Carl Drive in Hudson, Florida. The facility has a census of 40 beds and of that census, two residents are elderly patients and the remaining 38 residents are "hard core" mental patients who require intensive and specialized nursing care. Ray Dorman (Respondent) is named as the confirmed perpetrator of neglect (FPSS No. 90-091417) based on a finding that Respondent neglected a resident at the ACLF. A certified letter from Petitioner dated September 22, 1990, which was received by Respondent on September 27, 1990, advised Respondent that he could challenge the confirmed finding of neglect if he considered that the classification was inaccurate or that it should otherwise be amended or expunged. Although Petitioner maintains that Respondent failed to challenge the confirmed finding of neglect, Respondent and his wife, Winifred Dorman, credibly testified that on October 10, 1990, she accompanied Respondent to an HRS office in Clearwater to deliver a written request to challenge the finding of neglect. While the office which would have addressed Respondent's challenge (Mr. Morton's office) is situated in St. Petersburg, on that point, it appears that Respondent's wife was either unclear as to exactly where the Respondent's challenge to the confirmed classification was delivered and nothing more. Respondent's facility has been the subject of regular survey reports wherein it was determined that Respondent's facility was deficient in maintaining minimum licensure requirements based on inspection surveys dating back to September, 1989. Mrs. Diane Cruz, a human services surveyor specialist employed by Petitioner, was part of a three (3) member team of surveyors at Respondent's facility during late September, 1989. During the September, 1989 survey, it was determined that Respondent's facility was deficient in several areas including fiscal policies, facility records, client records, medication records, staffing, food service standards, maintenance and housekeeping standards, resident care, admission criteria and fire safety standards. In all of the cited areas, Respondent corrected the deficiencies and no cited deficiency was outstanding at the time of the hearing herein. Significantly, of the numerous deficiencies that Respondent was cited, only three of the deficiencies were repeat deficiencies during the annual 1990 annual survey. Respondent's facility is a fairly new and modern facility and Respondent prides himself in providing his residents the high degree of nursing services which the residents of his ACLF require. In this regard, in each instance wherein Respondent was cited for deficiencies, the matter was corrected by the time that the follow-up survey was conducted with only two exceptions. Regarding those exceptions, Respondent credibly testified that he had undertaken a good faith effort to correct the deficiency by the time of the follow-up survey. In any event, all of the cited deficiencies were corrected and Respondent has abided by the terms of any restrictions including the payment of any administrative fines which were imposed by Petitioner. Such conduct evidences that Respondent is conscientious in the operation of his adult congregate living facility and, to his credit, more than one of and Petitioner's witnesses testified that Respondent operates a good ACLF.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent a conditional license to operate Scarlet Manor as an adult congregate living facility. 1/ Afford Respondent an opportunity to challenge the confirmed classification naming him as the perpetrator in FPSS Report No. 90-091417 as soon as practical. DONE and ENTERED this 30th day of October, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1991.
Findings Of Fact On January 24, 1994, the Respondent, Aries Retirement Living, which is owned by W.T. Holding, Inc., filed an application for renewal of its license as an ACLF. The Aries application, completed by its administrator Patricia Holland, provided the following information: The mailing address for the administrator was completed as: 817 11th Street, West Palm Beach, Florida 33401. The mailing address for the corporate or limited partnership-corporate president or partner was: 817 11th Street, West Palm Beach, Florida 33401. At the time of the surveys (inspections) pertinent to these cases, Respondent had a conditional license to operate an ACLF for eight residents. The surveys were performed by two Agency employees who divided the review into two areas of expertise. Irwin Fried, a fire protection specialist, surveyed the Aries property for fire safety and physical plant regulation compliance. Meryl McDonald, a human services surveyor specialist, reviewed the property for all other areas of compliance. On March 14, 1994, and subsequently on June 1, 1994 and August 26, 1994, the financial records for the Aries facility were not available for review. Ms. McDonald requested the documents on each visit, but they were not provided by Aries until January 19, 1995. As a result, the Agency was unable to determine whether the facility was administered on a sound financial basis consistent with good business practice at the times of the surveys. Ms. McDonald also noted on the survey beginning March 14, 1994, that personal funds from one resident's account were used to purchase plastic gloves without the resident's consent. On December 7, 1994, the resident signed a consent for this appropriation of her funds. Despite requests from Ms. McDonald, Aries could not produce a certificate of liability insurance for review during the surveys. In this instance, Ms. McDonald asked Mr. Davis for the certificate but Aries did not present the information until January 19, 1995. For the survey and follow-ups conducted on March 14, 1994, June 1, 1994, and August 26, 1994, the last Health Quality Assurance inspection report was not posted in the Aries facility. At the times of the survey and follow-ups, Aries did not produce proof of radon testing. According to Mr. Davis, the radon testing was completed in October, 1994 (again several months after the request was made). Ms. McDonald brought several inaccuracies or deficiencies in the admission and discharge register maintained by Aries to their attention at the March 14, 1994 survey. Such inaccuracies included that seven residents were living in the facility but only three names were noted on the admission register. Further, none of other residents allegedly living in building two were listed. These inaccuracies continued uncorrected at the June 1, 1994, and August 26, 1994 follow-up visits. At the time of the March 14, 1994, survey and the follow-ups of June 1, 1994, and August 26, 1994, Aries could not establish that its Disaster Preparedness Plan had been reviewed by the Palm Beach County Disaster Preparedness Authority. According to Mr. Davis, this requirement was satisfied by the time of hearing. The Aries contract did not clearly provide a 30 days prior written notice of rate increase at the times of the survey or follow-ups. The statement disclosing Aries' medication storage policy was not given to each resident on admission. This deficiency was cited at the March 14, 1994, survey and remained uncorrected on June 1, 1994 and August 26, 1994. However, as of December 8, 1994, Aries corrected this deficiency. Aries could not produce the required demographic data for all residents, and military service information was not included for any resident. This deficiency was cited at the March 14, 1994, survey and remained uncorrected on June 1, 1994 and August 26, 1994. At the time of the March 14, 1994, survey, it was noted that a nurse was transferring insulin from labeled containers to syringes for one resident's later use. This procedure, although cited by Ms. McDonald, continued uncorrected on the June 1, 1994, follow-up. Later, the resident changed to tablets, and the deficiency was changed to corrected as of the August 26, 1994, follow-up. Also with regard to medications, Aries could produce no records or documentation to show how medications were disposed of when the resident left the facility. This lack of documentation was noted on March 14, 1994, and remained uncorrected on June 1, 1994 and August 26, 1994. When Ms. McDonald surveyed the food supply, she noted that a one week supply of non-perishable food, based on the number of weekly meals the facility had contracted to serve, was not on hand. Nor was there enough water in storage for emergencies. Food supplies on hand lacked sufficient protein. This shortage was noted on March 14, 1994, and remained uncorrected on June 1, 1994 and August 26, 1994. Mr. Davis removed dented and bulging cans after the March 14, 1994 survey. Mr. Fried surveyed the Aries property on March 14, 1994, and found the following conditions: Hot water temperature for resident use was recorded at 126 degrees F at 12:30 p.m. on the dates of the survey. On January 19, 1995, this was still uncorrected. The structure had openings in the walls which were uncorrected on June 8, 1994. The facility had exposed water pipes and exposed electrical wires or missing plates which were uncorrected on June 8, 1994. The fire and smoke detector system did not interconnect the front and back buildings to warn staff of an emergency. This condition continued from April 11, 1994 through January 19, 1995. The doors to the sleeping rooms were not self closing and latching to reduce smoke circulation during an emergency. This condition was noted during the April 11, 1994, survey and was uncorrected on June 8, 1994. The Aries facility did not have a secondary means of egress from the upstairs of the front building. This condition was noted during the April 11, 1994, survey and was uncorrected on June 8, 1994. The exit lights were not illuminated in the front Aries building and two locks were noted on the upstairs front exit and downstairs rear exit. This condition was noted during the June 8, 1994, visit and remained uncorrected for the August 25, 1994, follow-up. Ms. Holland, the administrator for Aries at all times material to these cases, was not at the property during any of the surveys or follow-up visits. Ms. Holland is employed full-time at a hospital and spends irregular hours at the Aries facility. Mr. Davis was present for the March, 1994, survey but was not present for the subsequent visits. Aries employees attempted to reach Mr. Davis when survey or follow-up visits were made to the facility. At the times of the visits, both Ms. McDonald and Mr. Fried requested to speak to the Aries staff member in charge. All deficiencies noted were itemized to Aries personnel in discussion at the times of the surveys. Additionally, written notice of the alleged deficiencies was provided to Aries at its address of record. Respondent's allegations of poor mail delivery or lack of notice have not been deemed credible. The Respondent did not claim it had not received the deficiency notices until December 7, 1994. During the June and August, 1994, follow-up surveys, Aries did not claim it had not received the deficiency statement from the prior survey or follow-up. All deficiencies alleged in these cases are Class III violations.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration enter a final order imposing an administrative fine in the amount of $8000.00. DONE AND RECOMMENDED this 5th day of April, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 5th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 94-5078 and 94-6908 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 13 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: The Respondent's "Proposed Order" was not in a format to readily review for proposed findings of fact. Paragraph 1 states: Petitioner has failed to meet its burden pursuant to Florida Statutes Section 400.419(1)(a) of communicating a recommended corrective action and informing the facility of the deficiencies prior to imposing violations and penalties. Such statement is rejected as a conclusion of law which is not established by this record. Paragraphs 1a. through 1e. are rejected as irrelevant, contrary to the weight of credible evidence, or argument. Paragraph 1f. is a restatement of law, not a fact and is rejected as such. Paragraph 2 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 3 is rejected as argument or conclusion of law not applicable to this case. Paragraphs 4a. through 4u., except as specifically found above, are rejected as contrary to the weight of the credible evidence or irrelevant. Paragraph 5 is rejected as argument or conclusion of law not applicable to this case. COPIES FURNISHED: Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Esther Zaretsky 1655 Palm Beach Lakes Boulevard Forum III, Suite 900 West Palm Beach, Florida 33401 Linda L. Parkinson Agency for Health Care Administration Division of Health Quality Assurance 400 W. Robinson Street, Suite S-309 Orlando, Florida 32801
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On November 20, 1985, License Number B03139 was issued to Swan Care Homes II to operate as an adult congregate living facility. This license was issued to Wayne Veccitto, who was a tenant of respondent and his wife. The expiration date of the license was May 19, 1986. Due to the facts that Mr. Veccitto had not made his rental payments in several months and the property was falling into disrepair, respondent evicted Mr. Veccitto on or about May 1, 1986. Respondent and his wife operated the facility during the month of May, 1986, and advertised for someone else to live in the facility and operate it. Neither the respondent nor his wife desired to personally operate the facility. According to the respondent, the Millers responded to his advertisement and began operating the facility around June 1, 1986. On June 9, 1986, the petitioner received an application dated June 6, 1986, from respondent's wife to operate the subject property as an adult congregate living facility. By letter dated June 16, 1986, respondent's wife was advised that her application for initial license was incomplete and that no further action on the application would be taken until the requested information was received. This letter further advised that it was unlawful to offer adult congregate living facility services or to advertise such services without having obtained a valid license. Respondent was aware of this correspondence but was not concerned because he knew the Millers were assuming the operation of the facility. On June 27, 1986, a representative of the petitioner conducted a complaint investigative visit to the facility. At that time, there were residents at the facility and a couple in charge of the facility who stated that they were working for the respondent. There was no valid license for the facility on June 27, 1986. By letter dated July 2, 1986, and received by the petitioner on July 7, 1986, respondent requested petitioner to rescind or void his application for licensure and to accept an enclosed application from Dorothy V. Miller for the same facility. The respondent and his wife have owned and/or operated approximately 12 adult congregate living facilities in Michigan and 5 or 6 in Florida.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent Louis E. Smith be found guilty of violating Section 400.407(1)(a), Florida Statutes, and that an administrative fine of $1,000.00 be imposed. Respectfully submitted and entered this 1st day of February, 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1988. APPENDIX (Case No. 87-1377) The proposed findings of fact submitted by the petitioner have been accepted and/or incorporated in this Recommended Order, except as noted below: 2. Last sentence rejected as immaterial. 5. Reference to Exhibit 2 is rejected. The proper Exhibit Number is 6. Also, no competent evidence to support the statement that Exhibit 6 was rejected by HRS. COPIES FURNISHED: Gaye Reese, Esquire Office of Licensure and Certification 7827 N. Dale Mabry Hwy. Tampa, Florida 33614 Louis E. Smith 6060 Shore Blvd. South Gulfport, FL 33707 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether or not Thomas Singleton, Jr. should have the ACLF license application denied for incidents alleged to have occurred on January 13, 1978, when the Respondent spoke with slurred speech and was inarticulate in trying to discuss matters of the care and protection of the residents of his licensed facility and further for the reason that later in the day on January 13, 1978, members of the Petitioners staff went to the licensed premises and found insufficient qualified staff to assure the safety and proper care of the residents; found that the Respondent, or the person acting in the official capacity was not on duty, alert and appropriately dressed; found that the administrator had failed to insure that the staff as mentally and physically capable of performing their assigned duties and found that the facility failed to have at least one staff member on call at all times for the benefit of the residents. Whether or not the Respondent, Thomas Singleton, Jr. should have his ACLF license application denied for allegedly issuing certain checks, to wit: check no. 138, dated January 13, 1978, in the amount of $40.00; check no. 149, dated January 13, 1978, in the amount of $10.00, drawn on the Atlantic Hank of Springfield and unpayable due to "insufficient funds"; and issuance of a check in the amount of $50.00, on January 15, 1978, and alleged to be nonpayable due to insufficient funds.
Findings Of Fact Thomas Singleton, Jr. is the holder of ACLF License No. P-4-l6-0089C held under the provisions of Chapter 400, Part II, Florida Statutes. This is a form of temporary license for operating adult congregate living facilities. Mr. Singleton is also an applicant for a permanent license for operating an adult congregate living facility. Carolyn Bothwell, is a social worker with the Department of Health and Rehabilitative Services, who specifically works in the field of aging and adult services. Some of her clients were residents of Tom's Rest Home, 1834 Silver Street, Jacksonville, Florida, which is owned and operated by Thomas Singleton, Jr. On January 10, 1978, Ms. Bothwell received a call from Mr. Singleton In which Mr. Singleton expressed some consternation about trying to collect money owed by one of his former boarder's at Ton's Rest lone. In Ms. Bothwell's opinion, Mr. Singleton's speech was slurred and he seemed very different than for prior contacts with him. On January 15, 1978, Mr. Singleton came to her office to further discuss the problem about the payment by the boarder. His appearance was disheveled and his speech was incoherent. In this conversation of January 13, Singleton also mentioned that his wife had left him and that he wanted Ms. Bothwell to be at the boarding home when he told the boarders of his wife's departure. Ms. Bothwell went to the location of the boarding hone around 12:00 noon on the date, January 13, 1978, in the presence of other members of the Department of Health and Rehabilitative staff. When she arrived at the boarding home, she discovered that the boarding home was locked and the boarders were on the front porch, locked out of the hone. Mr. Singleton had difficulty remembering why he had gone to meet with Ms. Bothwell earlier that day and made no mention of the fact that his wife had left. In Ms. Bothwell's opinion he appeared very vague and confused. Ms. and the other members departed the premises a short time later. On that same date, January 13, 1978, June K. Frye, a District Program Specialist, with the Department of Rehabilitative Services dealing with adult congregate living facilities, spoke with Mr. Singleton. This conversation apparently took place in the morning. In the course of the conversation Ms. Frye mentioned that she had called Mr. Singleton to advise him of an upcoming reinspection on the question of considering his probationary license status. Ms. Frye felt that Mr. Singleton was incoherent and unable to give concrete information about the license situation. She asked to speak to someone else at the facility but Mr. Singleton was unable to assist her in that request. Prior to this conversation with Mr. Singleton, Ms. Frye had never noticed any slurred speech or inability on the part of Mr. Singleton to respond to requests or to give information. Later that afternoon, Ms. Frye, in the presence of Mr. Otto G. Hrdlicka, went to the facility at 1834 Silver Street. When they arrived they found that Bertie Mae Baldwin was in charge of the facility. Mr. Singleton's wife was not at the-facility and Mr. Singleton was on the bed in his room, out of contact with the boarders. Several attempts were made to awaken Mr. Singleton, but none of those attempts were successful. It should be mentioned that Mrs. Baldwin was hired as a housekeeper whose hours were from 9:00 a.m. to 3:00 p.m. each day and at the time of the visit by Mrs. Frye and Mr. Hrdlicka, Ms. Baldwin was preparing to leave the facility. Ms. Baldwin had no responsibility in terms of cooking the food or attending to the overall needs of the boarders in the home. Testimony was also given in the course of the hearing that Mr. Singleton had written a check for insufficient funds to April Russel on January 15, 1978. This check was in the amount of $50.00. Restitution was made on the check, however. Testimony was also given that Mrs. Frye had been approached by Marion Thomas, a cab driver who claimed that Mr. Singleton had written him checks on January 13, totaling $50.00, for which there were no sufficient funds. Again restitution was made for those checks. A representative of the Atlantic Hank of Springfield, Jacksonville, Florida, testified in the course of the hearing and indicated that the operating account of Mr. Singleton for his business Tom's Rest Hone had been closed out in February at a time when the account was overdrawn $151.90. Subsequent to the January 13, 1978, incidents at the rest home, the boarders have been moved and placed in other facilities. Part of the motivation for such removal was due to the fact that some of the patients had cone to the boarding home after being released from the Northeast Florida State Hospital, at Macclenny, Florida, an institution for the treatment of patients with mental illness. It was felt by the program coordinators of the adult congregate living facilities that Mr. Singleton would be unable to properly care for those individuals and others in his boarding home and in view of the fact that no other employees were in a position to take care of the needs of the individual boarders, the decision was made to remove them from Tom's Rest Hone. Mr. Singleton gave testimony in the course of the hearing and indicated that he had suffered a severe stomach disorder beginning in April, 1977 and had undergone an operation to remove part of his colon. He says this caused him to take a number of pills as treatment. In addition he indicated that he had had some domestic problems with his wife. He also stated that on January 19, 1978 through January 23, 1978, he received psychiatric treatment in a local hospital, in Jacksonville, Florida, for his condition. He described the condition as a collapse of his nerves, which was brought on, according to Mr. Singleton, by failure of the treating physician who dealt with his colon problem to respond to a need to control his blood pressure. The events of January 13, 1978, and the state of Mr. Singleton's finances have lead to a complaint letter of January 19, 1978. Mr. Singleton has received that letter and been given an opportunity to respond to it. The complaint letter falls into two broad categories. The first category pertains to the matters of January 13, 1970 and the second category pertains to the financial situation of Mr. Singleton. Under the matters of January 13, 1978, the Department of Health and Rehabilitative Services has alleged violations of Chapter 10A-5.06(5)(b)(2); 10A-5.00(1), (4)(a), and (6), Florida Administrative Coda, and Section 400.414(2)(a)(d) and Section 400.441(2), Florida Statutes. Those provisions read respectively: 10A-5.06 Operational Standards. Facilities shall offer close supervision and living conditions as is necessary to the condition of the resident. This includes supervision of diets as to quality and quantity, and watchfulness ever the general health, safety and wellbeing of residents. There shall be daily awareness of the residents by designated staff of the facility as to the apparent well-being of the individuals with sufficient provision for contacting the resident's physician, if the resident has not already done so, at any time there appears to be significant deviation from his normal appearance or state of health and well-being. Appropriate notice of such instances shall be recorded in the personal records of the individual. * * * (5) The minimum personnel staffing for adult congregate living facilities shall be: * * * 2. There shall be at least one staff member on call at all times when residents are in the facility. 10A-5.09 Personnel Standards. The administrator of a facility shall: Provide such qualified staff as are necessary to assure the safety and proper care of residents in the facility. * * * (4) Assure that each person serving in any official capacity in the facility shall: (a) Be on duty, alert and appropriately dressed during the entire tour of duty. In smaller facilities it is permissible for the administrator to he on call during normal sleeping hours. * * * (6) Insure that the staff is mentally and physically capable of performing their assigned duties. They shall be free of any communicable diseases which would present the hazard of transmission to resident or other staff member. If any staff member is found to have or is suspected of having such disease, ha will be removed from his duties until the administrator determines that such risk no longer exists. 400.414 Denial, suspension, revocation of license; grounds. * * * Any of the following actions by a facility or its employee shall be grounds for act ion by the department against a facility: An intentional or negligent act materially affect- ing the health or safety of a resident of the facility * * * (c) Violation of the provision of this act or of any minimum standard or rule promulgated hereunder. 400.441 Rules establishing minimum standards. Pursuant to the intention of the Legislature to provide safe and sanitary facilities, the department shall promulgate, publish, and enforce rules to implement the provisions of this act, which shall include reasonable and fair minimum standards in re- lation to: * * * (2) The number and qualifications of all personnel having responsibility for the care of residents. It is established through the evidence that at all times on January 13, 1978, when the events as described took place, those boarders who had been assigned to Tom's Rest Home were living in that facility. Therefore, an examination of the events of January 13, 1978, as reported above, in view of the requirements set forth in the Florida Administrative Code which are related herein; demonstrates that Thomas Singleton, Jr. was in violation of those conditions and is subject to the penalties for such violation, to include revocation of the temporary licence ACLF License no. P-4-l6-009C and the denial of an unrestricted license. Moreover, the financial disarray of Mr. Singleton's business account for Tom's Rest Home, which was shown in the months of January and February, 1978, demonstrates a violation of Rule 10A-5.08(1), Florida Administrative Code, which reads: 10A-5.08 Fiscal Standards. The administrator of a facility shall maintain fiscal records in accordance with the requirements of Chapter 400 F.S., Part II. There shall be a recognized system of accounting used to accurately reflect details of the business including residents' "trust funds" and other property. The fiscal and "trust fund" records shall reflect a verified statement. The facility shall: Be administered on a sound financial basis consistent with good business practices. Evidence of issuance of bad checks or accumulation of delinquent bills for such items as salaries, food, or utilities shall constitute prima facie evidence that the ownership lacks satisfactory proof of financial ability to operate the facility in accordance with the requirements of Chapter 400 F.S., Part II. This would also establish a sufficient basis for denying any application for an unrestricted license, because it would show that the applicant has failed to demonstrate satisfactory proof of financial ability to operate and conduct the facility as required by Section 400.411(2), Florida Statutes.
Recommendation It is recommended that the permanent license to operate an ACLF facility as requested by Thomas Singleton, Jr. be denied. DONE AND ENTERED this 17th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert M. Eisenberg, Esquire Department of HRS Post Office Box 24l7F Jacksonville, Florida 32231 Thomas Singleton, Jr. Ton's Rest Hone 1834 Silver Street Jacksonville, Florida 32206
The Issue Whether respondent should be administratively fined $500.00 for allegedly operating an Adult Congregate Living Facility without obtaining a license in violation of Section 400.407(1) Florida Statutes (1981).
Findings Of Fact Respondent, Edith Bartholomew is licensed to operate a boarding house in her home located at 201 Gould Road, Dade City, Florida. (Testimony of Cruz, R-1.) On March 24, 1982, Dr. Frederick Timmerman, Chairman of the Long Term Care Ombudsman Committee, and Diane Cruz, Adult Congregate Living Facility Licensure Specialist, inspected respondent's boarding home. Six residents, unrelated to respondent, were receiving meals, care, and lodging at respondent's home. Five residents were present during the inspection. Dr. Timmerman talked with each patient for the purpose of determining their physical and mental condition and the kind and level of physical services provided them. Only one of the five residents was capable of caring for herself during an emergency, the other four were incapable of taking care of themselves during an emergency and required physical services beyond room and board. (Testimony of Timmerman, Cruz.) Respondent explained that she kept the residents' medication locked in a kitchen cabinet. At mealtime, she would retrieve their medications from the cabinet and distribute them to the residents making sure they took the correct amount. (Testimony of Timmerman.) Respondent also admitted that she assisted her residents in bathing. The residents confirmed to Dr. Timmerman that she helped them bathe. There is conflicting evidence on whether the residents are capable of caring for themselves during emergencies, whether respondent dispenses medications to them, and whether she helps them to bathe. The testimony of Dr. Timmerman is considered the most credible and worthy of belief. He is a professional physician with no discernable bias or interest in the outcome of this proceeding. Dr. Timmerman told respondent to apply for an Adult Congregate Living Facility License, a request that had previously been made by other Department personnel. Respondent declined, responding that it involved too much paperwork. (Testimony of Timmerman.) Respondent has consistently operated a home which furnishes excellent care and services to its residents. For a reasonable fee, she provides food, lodging, personal services, and loving care to the elderly people who reside there. Department officials are convinced that she provides a valuable and essential service; they have even recommended that older persons be placed in her facility. She has always been courteous and cooperative with Department personnel. (Testimony of Cruz, Timmerman.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be fined $500.00. DONE and RECOMMENDED this 10th day of November, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1982.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In August of 1987, the petitioner submitted an initial application for licensure as an adult congregate living facility. With advance notice to the petitioner, a survey team from the Department of Health and Rehabilitative Services' Adult Congregate Living Facility Program went to the petitioner's facility on September 28, 1987, to conduct a survey to ensure that the facility was in compliance with the minimum standards for licensure. The then- administrator, Kevin Nance, and the owner of the facility, Minnie Nance, were present while the survey was being conducted. The survey conducted on September 28, 1987, resulted in a finding of some 44 Class III deficiencies. A Class III deficiency or violation is defined as a condition or occurrence related to the operation and maintenance of a facility or to the personal care of residents which the Department determines indirectly or potentially threatens the physical or emotional health, safety or security of facility residents. The deficiencies found related to administration, management and staffing standards, admission criteria and resident standards, food service standards, resident and personnel records and fire safety standards. Prior to leaving the facility on September 28, 1987, the HRS survey team conducted an exit interview with Kevin and Minnie Nance, discussed the deficiencies found during the survey, and mutually arrived at dates upon which the deficiencies were to be corrected. It was agreed that the deficiencies should and would be corrected on or before various dates, ranging from October 1, 1987, to November 28, 1987, depending upon the nature of the particular deficiency. The Nances were requested to write down the deficiencies found, as well as the times for correction, and they were informed that a written report of the survey would be received in several weeks. They were informed that additional time could be granted to correct specific deficiencies if a written request were received by HRS prior to the original date set for the correction. They were further informed that an unannounced revisit would be conducted after the dates of correction to determine if the deficiencies had been corrected. In the early part of November, 1987, the written report of the survey was sent to the petitioner. This report listed each of the deficiencies found, as well as the required date of correction. A Statement of Acknowledgement of Receipt, dated November 11, 1987, and signed by Charles W. Nance as the Administrator, was returned to HRS on November 13, 1987. The HRS survey team revisited the facility on January 7, 1988, and found that some thirty deficiencies previously cited on September 28, 1987, had not been corrected and that three or four more had been only partially corrected. At that time, petitioner was informed that its application for initial licensure as an adult congregate living facility would be denied. Petitioner does not dispute the existence of the deficiencies initially found on September 28, 1987, nor did petitioner offer testimony to rebut the respondent's testimony regarding the uncorrected deficiencies. Instead, petitioner attempted to explain the still uncorrected deficiencies with testimony that the Administrator of the facility on September 28, 1987, was no longer the Administrator in January of 1988, that Minnie Nance and Charles Nance did not become aware of the specific nature of the deficiencies until late November of 1987, and that the holiday season prevented them from securing the necessary labor and assistance to correct the physical deficiencies. Petitioner also presented testimony that on the date of the unannounced revisit, January 7, 1988, Charles Nance was not present and that all the administrative paperwork was in his locked apartment and thus unavailable for review by the survey team. In light of the facts that at least Minnie Nance was present during the initial September survey and the exit interview, that Charles Nance signed as the Administrator on November 11, 1987, and acknowledged that he received the written report of the survey from HRS, and that petitioner never requested an extension of the time required for correction of the deficiencies, these explanations by the petitioner are neither credible nor sufficient. Also, no documentation was offered at the hearing concerning the existence of records contained in the locked apartment of Charles Nance on January 7, 1988.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure as an adult congregate living facility be DENIED, without prejudice to petitioner to submit a new application at such time as compliance with the relevant standards and criteria for licensure can be established. Respectfully submitted and entered this 18th day of November, 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1677 The proposed findings of fact submitted by the parties have been carefully considered and are accepted, incorporated and/or summarized in this Recommended Order, with the following exceptions: Petitioner 5 - 7. Rejected as contrary to the greater weight of the evidence. 8. Rejected as not established by competent, substantial evidence. 10 and 11. Rejected as not established by competent substantial evidence. COPIES FURNISHED: Gregory L. Fisher, Esquire 149 Central Avenue St. Petersburg, Florida 33701 Edward A. Haman, Esquire Senior Attorney Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondent, L. D. Terry, operates a thirty-bed adult congregate living facility under the name of Golden Paradise at 1200 Old Dixie Highway, Delray Beach, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. On June 9, 1986 James Valinoti, an HRS inspector, conducted a routine annual license renewal inspection of respondent's facility in the presence of the facility's administrator, Katherine Stevens. The inspection focused on all aspects of the facility's operations, including safety, physical plant, recordkeeping and sanitation. It was Valinoti's purpose to determine if the facility was in compliance with various requirements of Chapter 10A-5, Florida Administrative Code (1987) During the course of his inspection, Valinoti observed the following deficiencies: The facility did not document and place in its records the services delivered by a third party contractor (nurse) as required by Rule 10A-5.024(1)(a)4., FAC. The facility employed three or more staff but did not maintain a record of personnel policies, including state- ments of work assignments for each position as required by Rule 10A-5.024 (1)(a)5., FAC. The facility did not maintain a time sheet for all employees as required by Rule 10A-5.024(1)(a)7., FAC. The respondent failed to assure that there was at least one staff member within the facility at all times who had a certification in an approved first aid course and that the staff was free of communicable diseases as required by Rule 10A-5.019(5)(f), FAC. The facility failed to furnish each staff member with a copy of written policies governing conditions of employment including the work assign- ments of his position as required by Rule 10A-5.019(5)(h), FAC. The resident contract did not contain a refund policy if transfer of ownership, closing of facility or resident discharge should occur as required by Rule 15.024(1)(b)1., g., FAC. The facility failed to note in the residents' records the disposition of drugs after a resident had left the facility as required by Rule 10A- 5.0182(3)(a)7., FAC. The facility had no policies or pro- cedures for assisting residents in the making of appointments or providing transportation to and from appropriate medical, dental, nursing or mental health services as required by Rule 10A-5.0182(8) and (9), FAC. The facility did not participate in continuing in-service education on an annual basis at a minimum as required by Rule 10A-5.020(1)(c), FAC. The dietary allowances were not met offering a variety of foods adapted to the food habits, preferences and physical abilities of the residents, and prepared by the use of standardized recipes as required by Rule 10A-5.020 (1)(g), FAC. There was evidence of rodent dropping in the food storage room in violation of Rule 10A-5.020(1)(n)1. and 5., FAC. The facility did not assure that food service employees were free of communicable disease as required by Rule 10A-5.020(1)(n)15., FAC. Linoleum in the facility was peeling causing a tripping hazard and sinks and toilets were rusted in violation of Rule 10A-5.022(1)(a),(c), and (g), FAC. With the exception of item (a), which was unclassified, all deficiencies were Class III violations. After the inspection was completed, Valinoti discussed the deficiencies with the administrator and suggested ways to correct them. A letter was then prepared by the HRS area supervisor on July 23, 1986 and mailed the same date to Terry with a copy of the Classification of Deficiencies. That document provides a description of each deficiency, the class of deficiency and the date by which the deficiency must be corrected. Except for a requirement that the deficiency pertaining to rodent droppings be corrected immediately, Terry was given thirty days, or to August 23, 1986, in which to correct the cited deficiencies. Terry acknowledged he received a copy of the letter and attachments. On September 24, 1986 Valinoti reinspected respondent's facility. He found that none of the items had been fully correct. By letter dated September 29, 1986 HRS advised Terry of its findings and warned him that a "recommendation for sanction" would be made. It advised him further that another inspection would be made after October 29, 1986. On October 30, 1986 Valinoti made a second follow-up visit to respondent's facility. Valinoti found that all items had been corrected except item (j). The results of his inspection were reduced to a written report on November 13, 1986, a copy of which was sent to Terry. A year later, an administrative complaint against respondent was issued by HRS. Terry acknowledged, through admissions or testimony at hearing, that most of the allegations were correct but offered mitigating testimony as to why certain corrections were not made on a timely basis. When he purchased his facility in 1982, it was in a state of disrepair through neglect by the previous owner. Since then, he has attempted to upgrade the facility through a series of repairs and renovations. He currently has nineteen residents, most of whom were referred from a nearby mental health center. A mental patient is more difficult to care for, and this type of patient is prone to tear up furniture and equipment. Terry pointed out that he has only three employees, and they fully understand their duties and responsibilities. For this reason, he did not have documentation outlining their job assignments. When the June 9 inspection was made, Terry contended that HRS was in the process of implementing new rules, which he did not identify, and which he claims he did not understand. As evidence of his good faith, Terry pointed to the fact that all deficiencies except one were corrected by October 30, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of twelve Class III violations and one unclassified violation and that he be assessed a $1,250 civil fine to be paid within thirty days after the date of the final order entered in this matter. DONE AND ORDERED this 5th day of October, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1989. COPIES FURNISHED: Leonard T. Helfand, Esquire North Tower, Room 526 401 Northwest Second Avenue Miami, Florida 33128 John W. Carroll, Esquire Post Office Box 31794 Palm Beach Gardens, Florida 33410 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner, Morton Francis, operates Francis Villa, an ACLF at 1398 Northeast 156th Street, North Miami Beach, Florida. He and his wife are the sole staff at the facility. His present license to operate that facility has an expiration date of July 30, 1981. Prior to that date Mr. Francis applied for relicensure by Respondent, Department of Health and Rehabilitative Services. On September 17, 1981 he was informed by the Department that his application for relicensure had been denied for the following reasons: (a) the location of Francis Villa is net zoned by the City of North Miami Beach for the operation of an ACLF; (b) three of the files for residents at Francis Villa lacked sufficient medical information to determine if they had received a physical examination within 30 days of their admission to the facility; (c) the facility did not have a written procedure to be followed for emergency care during evacuation in the event of a disaster; (d) the facility had no documentation indicating that the staff is free of communicable diseases; (e) the facility did not have an up-to-date diet manual approved by the Department; (f) while menus were planned and posted in a frame on the wall at the facility they were not dated and no record indicates that the menus have been kept on file for the past six months; (g) there was no thermometer in the kitchen refrigerator; (h) in the bathroom on the west side of the facility there were no non-slip safety devices or hand rails in the bathtub used by the residents; (i) in three files reviewed by the Department during its licensure survey there was no written agreement between the resident and the facility specifying the conditions when the resident would be moved to a more appropriate residential setting; and (j) the files failed to contain the demographic data required by the Department. The foregoing deficiencies given for the denial of relicensure did in fact exist on July 7, 1981 in Petitioner's facility. They were discussed with him at that time during a relicensure survey. Reinspections were conducted on August 12, 1981, September 3, 1981, and finally on November 24, 1981. The above deficiencies in Petitioner's facility were not corrected by November 24, 1981. By the time of the final hearing Petitioner had installed a thermometer in his kitchen refrigerator and had installed non-slip safety devices and hand rails in the bathtub on the west side of the facility. Petitioner is unwilling to correct the remaining deficiencies until such time as he can be assured that his facility will be relicensed. At the final hearing Mr. Francis attempted to shift responsibility for some of his facility's defects onto the Department because he allegedly lacked information about how to handle patient records, etc. The evidence reflects that the Department has held training sessions for operators of ACLF's and has prepared forms available to Mr. Francis which may be utilized by operators in maintaining the required patient records. See Section 400.452, Florida Statutes (1981).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order denying Mr. Francis' application for the relicensure of his Adult Congregate Living Facility located at 1398 Northeast 156th Street, North Miami Beach, Florida. DONE and RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982. COPIES FURNISHED: Martha F. Barrera, Esquire Long Term Care Office Department of Health and Rehabilitative Services 1320 South Dixie Highway Coral Gables, Florida 33146 Mr. Morton Francis c/o Francis Villa 1398 Northeast 156th Street North Miami Beach, Florida 33162
