Conclusions Having reviewed the Administrative Complaint and Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the Provider, Hillcrest Residential ALF, Inc. d/b/a Hillcrest Retirement Residence (“the Provider”), pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Notice of Intent to Deny (Composite Ex. 1) with an Election of Rights form to the provider. The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2). Based upon the foregoing, it is ORDERED: Filed December 7, 2011 2:51 PM pibision of Administrative Hearings 1. The attached Settlement Agreement is adopted and incorporated by reference into this Final Order. 2. The Provider’s license to operate this assisted living facility (License Number 5389) is UNCONDITIONALLY SURRENDERED. 3. The Agency’s Notice of Intent to Deny is upheld and the Provider’s license renewal application is DENIED. 4, An administrative fine in the amount of $29,500.00 is imposed against the Provider and is STAYED in accordance with the terms of the Settlement Agreement. 5. The Provider is responsible for any refunds that may be due to any clients. 6. The Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. The Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this ? day of Decee bey » 2011. es ded Elizabeth/Dudek, Secr Agency for Health q ary g Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this 7o— tay of » 2011. aN Richard Shoop, Agency Cl Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Copies: Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Shaddrick Haston, Unit Manager Medicaid Accounts Receivable Assisted Living Unit Agency for Health Care Administration Agency for Health Care Administration (nteroffice Mail) (Electronic Mail) Shawn McCauley Patricia Caufman, Field Office Manager Medicaid Contract Management Areas 5 and 6 Agency for Health Care Administration Agency for Health Care Administration (Interoffice Mail) (Electronic Mail) Thomas J. Walsh II, Senior Attorney Monica Strickland, Esquire Office of the General Counsel 402 East 7th Avenue Agency for Health Care Administration Tampa, Florida 33602 (Electronic Mail) (U.S. Mail) Thomas M. Hoeler, Chief Facilities Counsel R. Bruce McKibben Office of the General Counsel Administrative Law Judge Agency for Health Care Administration Division of Administrative Hearings (Electronic Mail) (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2} The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact Cirilo Alvarez, at all times pertinent to the allegations in the complaint, operated an adult congregate living facility in Lake City, Columbia County, Florida, Briar's Haven Adult Care Center, under license number 03-12- 0128-BPS, issued by the Florida Department of Health and Rehabilitative Services. In late July or early August, 1982, Respondent, who is a psychiatric nurse specialist and who works full time at North Florida State Mental Hospital (Hospital) at Macclenny, Florida, took Woodrow Harrison, an elderly patient at that institution, into his home, Briar's Haven Adult Care Center, on pass status from the Hospital for periodic short visits. Ultimately, on July 30, 1982, Harrison was released from Macclenny and began living full time at Respondent's facility. On August 3, 1982, Sharon Stucky, a registered nurse case manager for the North Florida Mental Health Center (Center) in Lake City, Florida, did an intake interview with Harrison, who had just been released from the Hospital and who was living at Respondent's facility. Mr. Harrison was brought into the Center by Respondent's wife. Records from the Hospital pertaining to Harrison, which came to the Center, reflected that he suffered from a seizure disorder and a diabetic condition. His medication consisted of 300 mg. of Dilantin daily and 30 mg. of phenobarbital daily, and he was to receive a daily insulin injection. At the time of his release from the Hospital, he was furnished with a thirty-day supply of these medications. On the afternoon of August 13, 1982, Mr. Alvarez went into the Center with Mr. Harrison and asked to see Ms. Stucky. Respondent indicated that Mr. Harrison was having many physical problems. Earlier in the day, he had taken Harrison back to Macclenny to have him readmitted for seizures, incontinence, etc., even though he was taking his medications, but officials at the Hospital refused to admit him. Mr. Alvarez wanted him admitted to some facility in Lake City. Stucky, indicating she would have to talk with Harrison before taking any action, did so and felt she could see no change in his condition since her first interview of him on August 3, and she decided she could not justify having him recommitted to the mental hospital. Since Stucky wanted to find out if the seizures were the result of a physical problem, and she could not do a physical herself, she requested that Respondent take Harrison to a doctor for an examination. The Respondent again demanded that Harrison be admitted and, when Ms. Stucky refused, stated he would take Harrison to the hospital and leave him. Ms. Stucky talked with her supervisor to see if there was any way that Harrison could be readmitted to Macclenny, and it was determined there was not. When the information was related to Mr. Alvarez, he departed with Mr. Harrison. Respondent then took Harrison to the emergency room at Lake City's Lake Shore Hospital. After a chart was prepared on Harrison, Alvarez departed, leaving Harrison there without his medications. When Alvarez first took Harrison in, he was told there would be an hour wait before Harrison could be seen. Alvarez asked if Harrison could sit there and wait, and the person on duty said, "Yes." Once that was arranged, Respondent left without Harrison. According to a report of the doctor on duty, Harrison was confused and incapable of giving a complaint or history. As a result, evaluation of him was difficult, and his well-being was compromised. Respondent subsequently made no effort to get Harrison's drugs to him by delivering them to Ms. Stuckv, nor did he inquire where Harrison was. Respondent's actions in dropping Mr. Harrison off at the Lake Shore Hospital unsupervised, and only calling to check on his status somewhat later, constitute an intentional abandonment which could have seriously affected Harrison's health, safety, and welfare. Somewhat later the same day, Respondent called Lake Shore Hospital to find out what Harrison's status was, but Harrison had already been placed in another adult care facility by Ms. Stucky when the hospital called her and told her of Harrison's situation. Respondent did not make any other calls. Ms. Stucky visited Harrison daily at this new facility and administered his insulin shot. He appeared to be doing well there and wanted to remain, but on August 17, 1982, he was readmitted to Macclenny, where he currently resides. Harrison is incapable of taking care of himself. He has a poor memory and is somewhat retarded and childlike, according to Stucky. He has no concept of time and could not administer his medicines to himself. He could not understand the need to take his medicine or remember to take it if he could. Since Mr. Harrison was dropped off at Lake Shore without either his medicines or a change of clothing, Stucky made several telephone calls to the Respondent to retrieve them. Mr. Alvarez was always out when she called, and Stucky talked with several different females who answered the phone and with whom she left messages requesting him to call her back. Alvarez did not return any of the calls, but he states he never received them. This is rossible since, he says, neither his mother nor his wife, two of the people at home who may have received the original calls from Stucky, speaks much English. Respondent provided Mr. Harrison with all the clothes he had except those he was wearing when he came from Macclenny. Upon the advice of individuals at Macclenny who he could not remember to identify, Respondent applied for Social Security benefits to support Harrison while he was at Respondent's facility. Because Harrison had no family, Respondent sought the counsel of the legal aid office in Lake City to see if he could be appointed Harrison's legal guardian and was told he could not. In late January or early February, 1983, Respondent received one Social Security check in the amount of $1,900 made out to Harrison and Mrs. Alvarez. This check was not cashed because Harrison was no longer with the Respondent, but was returned to the Social Security Office. Harrison's medicines that were in Respondent's possession when Harrison was taken to the hospital were discarded. Respondent worked with Harrison at Macclenny for about a year before taking him to his own facility. During that time to his knowledge, Harrison never had any seizures. Respondent gave him his medications at Macclenny and knew he needed drugs. When he took Harrison to his facility, he took Harrison's drugs as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Secretary of the Department of Health and Rehabilitative Services enter a final order revoking the Adult Congregate Living Facility License of Cirilo Alvarez, doing business as Briar's Haven Adult Care Center. RECOMMENDED this 1st day of April, 1983 in Tallahassee, Florida. ARNOLD H. POLLOCK 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 1st day of April, 1983. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 NW 13th Street, 4th Floor Gainesville, Florida 32601 Mr. Cirilo Alvarez Post Office Box 2392 Lake City, Florida 32055 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether a $1,500 administrative fine should be levied against respondent on grounds that it failed to timely correct four Class III violations of nursing home standards.
Findings Of Fact On August 25-26, 1980, the Department inspected Richey Manor, a licensed nursing home located at 505 Indiana Avenue, New Port Richey, Florida. Various deficiencies were identified and discussed with the nursing home staff. Thereafter, on October 24, 1980, the Department sent Richey Manor a written citation which listed the deficiencies noted in August, classified them, and set dates by which they were required to be corrected. The deficiencies pertinent to this proceeding were: (1) funds of deceased patients were not deposited in an interest-bearing account, (2) the nurse call system in patient Room 14 was inoperable, (3) the dry wall ceiling in the south entrance corridor was damaged, and (4) specific `products and disinfectants required by Richey Manor's approved infection control policies were unavailable. 2/ The citation identified these as Class III deficiencies. The first three were required to be corrected by September 25, 1980, the fourth by October 25, 1980. (Testimony of Fullerton; P- 2.) Class III deficiencies are those violations which have an indirect or potential relationship to the health, safety, or security of the nursing home patients. Three of the deficiencies fulfill these conditions: a workable nurse call system and infection control program have an obvious potential relationship to the health of the patients; vermin may gain access through the hole in the dry wall and have similar adverse effects. However, as now conceded by the Departments the failure to deposit funds of deceased patients into an interest- bearing account does not indirectly or potentially relate to the health, safety, or security of patients. (Testimony of Fullerton.) Richey Manor timely corrected or attempted to correct three of the four deficiencies noted. During August, 1980, it hired Tampa Sound Company to repair the nurse call system; two visits were required and the repairs were satisfactorily completed by November. An infection control committee was formed to revise and update the infection control policies. By November, 1980, the policies had been revised; supplies and equipment necessary for their implementation were then available. During August, 1980, the hole in the ceiling: at the entry way was repaired; however, the repair was inadequate. By January 12, 1981, the hole in the ceiling had reopened. The fourth deficiency remained uncorrected: no action was taken by Richey Manor to place funds of deceased patients in an interest-bearing account. (Testimony of McGlawn, Fullerton; P-1, R-1, R-2.)
Recommendation That the Department impose a total fine of $500 against Richey Manor for the two violations which were not adequately and timely corrected. DONE AND RECOMMENDED this 10th day of December, 1981, in Tallahassee, 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 December, 1981.
Findings Of Fact The Board presented testimony which established that on July 29, 1975, it was discovered that supplies of morphine were missing from Fourth Floor South of Hollywood Medical Center. As a result of this discovery a more thorough inventory of narcotic drugs was conducted and it was determined that a box of morphine had been opened, its contents removed and the box resealed. This matter was reported to the administration of the hospital who caused an investigation to be conducted by Investigations Unlimited, Inc. Richard Gottlieb, an employee of investigations Unlimited, Inc., (IUI) conducted polygraph investigations as instructed by Gerald Slocum, owner and president of IUI. The hospital had directed Slocum to polygraph all persons who had had access to the narcotics storage of Fourth Floor South. Among the dozen or so employees polygraphed was Jean Conklin who was the head nurse on Fourth Floor South. Conklin was advised by her supervisor that all employees with ,access were to be polygraphed and that she (Conklin) was next. Conklin was not advised that she could refuse, that any evidence or statements obtained could be used against her or that she had a right to remain silent. Following her first examination, Gottlieb determined that Conklin's test indicated deception. On the day following the first test, Conklin was again polygraphed. On both occasions, Conklin signed a document designated "Authority for Polygraph Examination". A copy of the authorization executed for the second examination was introduced as Exhibit C. Following the second examination, upon being advised that she had been found to be "lying", Conklin was encouraged by Gottlieb to give a statement. Gottlieb testified that this was a standard procedure and part of the polygraph examination and the Hearing Officer finds that the taking of Conklin's statement was a part of the examination. Conklin prepared two statements on July 31, 1975, received into evidence as Exhibits A and B. In these statements Conklin admitted taking a tube of morphine inadvertently about 2 months prior to the discovery of the missing drugs. Instead of returning the drug, Conklin took it herself for what she described as severe back pain. Subsequently, Conklin signed out for additional morphine for a patient when the patient did not require morphine and took them for her own use. She did this approximately 8 times. About two weeks prior to the date the statement was given, Conklin stated she took 10 tubexes of morphine from a previously sealed box on Fourth Floor South and then resealed the box. She used two of the tubexes and threw the others away the night before the second polygraph examination. She further admitted taking morphine from the bottles and replacing it with sterile water. Respondent, Conklin, presented the testimony of her psychiatrist, Gilbert Berken. Berken testified that he had first met Conklin while in the Air Force stationed at Kesseler, Air Force Base where he was on the psychiatric staff and Conklin was a nurse. At that time he observed that she was a conscientious, efficient Registered Nurse. He later treated Conklin in 1972. At that time Conklin was very agitated and had a disturbed sleep pattern. She stated that she felt as if ants were crawling over her. Dr. Berken's initial diagnosis was acute anxiety reaction, but following her hospitalization he diagnosed her condition as agitated depression, psychotic depressive occurrence. He felt that the cancer and radiation treatment which Conklin had had was a significant stress which contributed to her psychotic condition. Dr. Berken stated that he had treated Conklin by heavily sedating her. This relatively heavy sedation continued from February 12, 1972 until March, 1972 being gradually reduced. Ore March 3, 1972 Conklin advised him she was discontinuing medication and that she was doing well. On March 10, 1972, she had a recurrence, however, and started back on medication. Dr. Berken did not see Conklin again until May 23, 1973. At that time Conklin experienced a recurrence of sleep disturbances. At that time Berken prescribed lithium carbonate to facilitate the action of the drugs which he was giving Conklin. He did not see Conklin again until August 1, 1975. When Conklin saw Dr. Berken in August, 1975 she advised ham that she had been fired, deservedly so, for self-medication with morphine for sleep disturbance. Shortly afterward Conklin was hospitalized when outpatient treatment failed. Dr. Berken's diagnosis was acute depressive neurosis, severe with agitation. Dr. Berken stated that in his professional opinion that Conklin's condition had existed for several months prior to his seeing her. The sleep disturbance, which Conklin had treated with the morphine, was an outgrowth of the depression. The morphine assisted Conklin to sleep, acting as a sedative, but it also masked the depression. He again treated Conklin's condition with drugs, but stated that she had been able to come off medication due to a deepened religious faith. Dr. Berken further stated that in his professional opinion that Conklin's taking the morphine was not consistent with her general conduct and personality. Based upon his prior knowledge of Conklin and tests he had conducted with her in 1972, Conklin had a very well developed sense of honesty and integrity. He concluded therefore, that her behavior in taking the morphine was not consistent with her general conduct, and that the probability of a recurrence of her misconduct was not appreciably higher than the probability of a person initially acting in such a manner. Dr. Berken stated that he had last seen Conklin in February 1976 prior to the first hearing in the case, At that time she handled the stress well, was not experiencing any difficulties sleeping, and was able to support her emotional needs by prayer. Dr. Berken stated that Conklin was symptom free, that she was a very fine nurse, very competent, and that in his opinion she would not turn to self- medication if she should have a recurrence of her problem. Dr. Berken stated that there was no evidence of morphine addiction while she was hospitalized in August, and that he would trust her with drugs, would trust her to administer drugs to his patients, and would hire her if he needed a nurse. Berken also stated that Conklin was aware of the nature of the authorization to be polygraphed which she signed despite her neurosis. Miriam Anderson was called by the Respondent. She is Director of Nursing at Greynolds Park Manor Rehabilitation Center where Conklin was currently employed. Miriam Anderson is a Registered Nurse with 31 years of experience. She stated that she had hired Conklin with knowledge of the charges pending against her. Conklin had begun work in October, 1975 as a staff nurse under careful observation. Subsequently she was promoted to night supervisor, and had been promoted again to Day Supervisor. Anderson stated that Conklin was a competent, efficient nurse who she trusted with supervision of nursing care to the patients at Greynolds Park. Conklin was daily trusted with administration of narcotics and Anderson had no questions about Conklin's ability to handle that responsibility. Anderson further stated that she felt cases such as Conklin's had to be considered on an individual basis, and that in her experience some people made mistakes, realized it, and were better for it. Anderson said that Conklin was a good nurse, a trustworthy employee and had a job at Greynolds for as long as she wanted it. George Leader, the administrator of Greynolds Park Manor, was called by Respondent. Leader supported Anderson's testimony regarding Conklin. In response to the Hearing Officer's inquiry, he stated that he would be happy to work with the Florida State Board of Nursing to provide any supervision needed of Conklin if she were placed on probation. Mrs. Jo Ann Mann, the Director of Nursing of Hollywood Medical Center, was called by the Respondent. She stated that Conklin, up until the incident in question, had been a very good head nurse. Based upon the hospital records which she examined, Mann stated that there had been drugs tampered with and taken from Conklin's floor. Based on the evidence presented, the Hearing Officer finds that Conklin did take the drugs and use them to self treat her neurotic depression. Further, Conklin was aware of the nature of her acts when she took the drugs. Such conduct is contrary to the high standards of trust and responsibility expected of a Registered Nurse. However, it is equally clear that while Conklin realized what she was doing, that she was suffering from a severe mental depression which ultimately required her hospitalization for treatment. Her treating physician's professional opinion is that she is currently free of symptoms and that a recurrence of such behavior is no greater than a person who has never indulged in such conduct, taking drugs for self-treatment. Her present employer and supervisor stated that Conklin's conduct has been exceptional and that she is a trusted employee who has been placed in a supervisory position because of her abilities. The question presented is what action should be taken? If a purely punitive view is taken, most certainly Conklin's conduct would warrant severe action. However, the thrust of the provisions of Ch. 464 are regulatory. Punishment is the purpose of the criminal law, and while the courts recognize that actions by professional regulatory bodies may be punitive, that is not their prime function. Section 464.011, F.S. which states the purpose of Ch. 464 states: "In order to safeguard the life, health, and welfare of the people of this state and to protect them from unauthorized, unqualified, and improper application of services by individuals engaging in the practice of nursing, it is necessary that a proper regulatory authority be established and adequately provided for. To this end, it is the policy of the state to regulate the practice of nursing through the State Board of Nursing, which shall have the power to enforce the provisions of this Chapter. Regulation deals with the removal from practice of persons who are unqualified by virtue of lack of training or conduct those who would constitute a hazard to the public. In the instant case, the evidence is equally clear that Conklin's conduct was inconsistent with her general personality, that the problem which gave rise to the conduct is gone, and probability of recurrence is no greater than that of a nurse who has never had such a problem. Certainly her training and abilities, either before or after her misconduct are not in question. A reading of Subsection 3 of Section 464.21, F.S. indicates a general thrust to grant the Board great latitude in tailoring disciplinary action to fit the circumstances. The Board may suspend judgment and penalties, suspend judgment and penalties on probation, suspend or limit the right to practice, revoke or deny reissuance, or take such other action as the Board may deem proper and in the interest of the public health. Other than punishing Respondent it would appear that little would be accomplished by revoking or suspending the license of Jean Conklin. Such punishment would not act as a further deterrent to Conklin, who according to expert testimony would not have any greater likelihood of repeating her conduct than another nurse to commit the same act the first time. It would not remove a person of little ability from practice but would, according to the testimony, deprive the profession of a very competent member.
Recommendation The Hearing Officer would, therefore, recommend that the Board of Nursing impose a penalty of revocation, indicating the seriousness with which it views the actions of the Respondent, and thereafter suspend imposition of the penalty placing the Respondent on probation for the maximum period allowed by law, the conditions of said probation to be established in the discretion of the Board as it may deem appropriate for the best interest of the public. DONE and ORDERED this 8th day of June, 1976, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether an administrative fine of $500 should be imposed against Respondent for violation of Section 400.191(5)(a), Florida Statutes, as set forth in Administrative Complaint, dated March 13, 1979.
Findings Of Fact Respondent Four Freedoms Manor is an extended care nursing home facility licensed by Petitioner pursuant to the provisions of Chapter 400, Florida Statutes. It is located at 42 Collins Avenue, Miami Beach, Florida. (Testimony of Begley) On February 12, 1979, Donna Ehrlich, a staff attorney with Legal Services of Greater Miami, Inc. and a member of the District XI Nursing Home Ombudsman Committee visited a resident in the home. She inquired at the administrative office as to whether a summary of the last state inspection report was posted on the premises. She was referred to the office of the administrator, Jorge Hernando, who told her that the summary was not posted but that he would look for the full inspection report and show it to her later in the day. When she returned thereafter, he still had not found the report and told her he would call her when he did locate it. She was not contacted by Hernando during the ensuing week and, on February 20, 1979, she reported the matter to Petitioner's Office of Licensure and Certification in Miami, Florida. A nurse consultant with that office thereafter visited the nursing home to inquire into the matter. She and several of Respondent's employees searched various offices and the lobby bulletin board area, but were unable to find the report summary. She reported this fact to her supervisor and an administrative complaint was filed against Respondent for the deficiency on March 13, 1979. By letter of March 20, 1979, Respondent informed Petitioner that the inspection summary had been found under a number of photos of patient activities on a bulletin board in the lobby area. Respondent thereafter requested an administrative hearing to resolve the matter. (Testimony of Ehrlich, Begley, Petitioner's Exhibits 1-2). Respondent's administrator testified at the hearing and confirmed that the inspection summary had been posted on the bulletin board in the lobby at the time of Ms. Ehrlich's visit, but that it had been inadvertently covered by activity signs by unknown persons. He further stated that he had telephoned Ms. Ehrlich's office on the day of her visit and left a message for her to call back. The inspection summary had been posted only in the lobby area, but it has since been posted also in the admitting office and at the information desk. The administrator also testified that deficiencies arising out of the inspection had been corrected and that it was difficult to prevent individuals from obscuring the posted summary with other notices and the like. (Testimony of Hernando)
Recommendation That Petitioner impose an administrative fine of $100 against Respondent Four Freedoms Manor for violation of Section 400.191(5)(a), pursuant to Sections 400.121 and 400.102(1)(c), Florida Statutes. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of November, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1979. COPIES FURNISHED: Leonard Helfand, Esquire District Legal Counsel Department of HRS 401 Northwest 2nd Avenue Miami, Florida 33128 Jorge Hernando, Administrator Four Freedoms Manor Forty-Two Collins Avenue Miami, Florida 33139
