The Issue The issues are whether Respondent failed to maintain a record of major incidents on two occasions, and if so, what penalty should be imposed.
Findings Of Fact Petitioner regulates assisted living facilities (ALFs) pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. Respondent is licensed as an ALF pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. On or about October 4, 1999, Petitioner received a telephone call alleging that Respondent was operating contrary to Rule 58A-5, Florida Administrative Code, in several respects. In response to the telephone complaint, Petitioner performed an unannounced inspection/survey at Respondent's facility on October 6, 1999. Petitioner performed record reviews, interviews, and observations during its October 6, 1999, inspection of Respondent's facility. The survey revealed that Respondent's business was deficient in several respects that are not relevant here. These deficiencies resulted in four citations. On November 10, 1999, Petitioner completed a follow-up appraisal/complaint investigation at Respondent's facility. During the survey, Petitioner reviewed randomly selected medical records of eight of Respondent's clients. The November 10, 1999, revisit resulted in Respondent being cited for several Class III deficiencies. The deficiencies included one citation for failing to maintain a record of a major incident involving an injury to a resident who required treatment by a health care provider. Specifically, Resident No. 5 fell on October 22, 1999, and fractured a leg. She was transferred and admitted to the hospital. At the time of the November 10, 1999, inspection, Respondent could not produce documentation indicating that it had completed a major incident report. Petitioner advised Respondent that it had until November 24, 1999, to correct cited deficiencies. On December 20, 1999, Petitioner conducted a revisit survey of Respondent's facility. The purpose of the inspection was to determine whether Respondent had corrected deficiencies cited during the November 10, 1999, inspection. This inspection included a review of medical records for eight randomly chosen residents. The December 20, 1999, survey revealed a repeat deficiency for failing to complete a major incident report of an injury to a resident who required treatment by a health care provider. Petitioner cited Respondent for failing to complete a major incident report for Resident No. 7 who fell on or about August 1, 1999. Resident No. 7 fell in her room but refused initially to go to the hospital. Two days later, Resident No. 7 was admitted to the hospital for observation due to her complaints of pelvic pain. She returned to Respondent's facility with a new health assessment dated August 3, 1999. The new health assessment revealed a decline in the resident's ability to perform daily living activities and changed her status from independent to requiring supervision in dressing, grooming, toileting, and transferring. Respondent did not complete a major incident report at the time of the resident's fall or upon her admission to and return from the hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $300 for repeated violations of Rules 58A-5.0131 and 58A-5.024, Florida Administrative Code, plus interest as specified in Section 400.419(6), Florida Statutes. DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 2nd day of May, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Tallahassee, Florida 32308 Mohamad Mikhchi Owner/President Northpointe Retirement Community 5100 Northpointe Parkway Pensacola, Florida 32514 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue The issues in the case are whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida. The Respondent operates a licensed nursing home at 2916 Habana Way, Tampa, Florida 33614. The facility is approximately 30 years old. It is not built to current standards. On March 13, 2002, the Petitioner inspected the Respondent facility. Based on the inspection, the Petitioner determined that there were life safety code deficiencies at the facility and cited the deficiencies as "tag numbers K 020, K 067, and K 130." The deficiencies were identified as Class III deficiencies. The Respondent did not dispute the inspection findings and submitted a Plan of Correction (POC) to the Petitioner, which approved the POC. The Petitioner conducted a follow-up inspection on April 25, 2002, and cited the facility for the same three tag numbers. TAG K 020 The Petitioner alleged in Tag K 020 that the Respondent failed to meet a standard that requires vertical openings between floors be enclosed with construction so as to provide fire-resistance of at least one hour. The purpose of the standard is to prevent fire from spreading through the floors of the facility via the laundry chute. The approved POC required that the specifically identified broken hardware and improper closing doors be repaired, that the doors be inspected on a monthly basis, and that the staff be trained to notify the facility's maintenance man if any additional hardware malfunctioned. During the March 13, 2002, inspection, the "fourth floor laundry chute corridor door" failed to function properly. (Emphasis supplied.) During the April reinspection, the "fourth floor laundry chute door . . . did not close to a positive latch, in that part of the latching hardware was missing to insure closure." The laundry chutes are contained within a small closeted area. There is a door from the corridor into the closet and another door inside the closet that opens to the laundry chute. The malfunctioning fourth floor doors identified in the March inspection and the April reinspection are different doors. The evidence establishes that the fourth floor corridor door cited in the March inspection was repaired according to the POC and was functioning properly at the time of the April reinspection. During the March inspection, the "first floor west stairwell exit door" did not "consistently" latch into its frame. This door was not cited in the April reinspection and it is reasonable to infer from the lack of re-citation that the door was apparently functioning properly at that time. During the March inspection, the hardware on the second floor "laundry chute access door" was broken and did not close automatically. During the April reinspection, the same door was again malfunctioning. The age of the facility apparently makes maintenance of laundry chute locks difficult. The chute doors were not built to current standards and some malfunctioning lock parts are difficult to replace. The problem on the second floor laundry chute access door was due to a broken spring. The Respondent's administrator and maintenance supervisor testified that the door had been repaired and had broken again. Their testimony was persuasive and is credited. During the April reinspection, the Petitioner found other doors that were not functioning properly. The additional doors include a third floor laundry chute door that "did not close to a positive latch" because of a missing lock mechanism. The Petitioner also found that a laundry chute door in the first floor laundry chute collection room was using only one of two locking devices and that hardware was missing from what is apparently the unused locking device. The evidence fails to establish that these items were not functioning properly at the time of the March survey or that they were not repaired on a timely basis after the April survey. As of the date of the hearing, the doors are inspected on a weekly basis in an attempt to maintain and repair broken parts on an expedited basis. TAG K 067 Tag K 067 alleges that the Respondent failed to meet a standard requiring that air handlers automatically shut down in the event of a fire alarm. The purpose of the standard is to prevent distribution of smoke through the facility via the air conditioning system in the event of a fire. During the March inspection, three of fifteen air handlers failed to shut down automatically when the fire alarm was set off. The specific handlers that failed to shut down were identified as two on the fourth floor and the "east" air handler on the second floor. The approved POC provided that the specified air handlers would be serviced to shut down when the fire alarm went off. The air system was serviced on April 4, 2002, after which the system functioned properly. During the April reinspection, the air conditioning compressor and fan in the fourth and second floors were not functioning at all, and therefore it was not possible to determine whether or not the air handlers would shut down as required. Because the system was not working, the test was not performed. The evidence fails to establish that this deficiency existed at the time of the April reinspection. At the hearing, the Respondent provided persuasive testimony and evidence establishing that the air conditioning system was subsequently returned to working order and that the system properly shut down upon activation of the fire alarm system. TAG K 130 Tag K 130 alleges that the Respondent failed to meet a standard requiring that electrical equipment be in accordance with the "National Electrical Code." During the March inspection, the Petitioner found that some electrical outlets were loose in the wall mounting boxes or did not have sufficient tension to retain electrical cord plugs. Also during the March inspection, the Petitioner found that some residents of the facility were using household-type extension cords. The approved POC provided that outlets would be repaired and extension cords would be removed. During the April reinspection, the Petitioner found that the cited deficiencies had been repaired but that household-type extension cords were in use in resident rooms other than those originally cited in March. As of the date of the hearing, room inspections are performed on a weekly basis to prevent improper extension cord use. Although the Respondent asserted that relatives of facility residents bring in the extension cords despite the instructions to the contrary, the evidence fails to establish that the facility is unable to prevent the use of household-type extension cords in residents rooms.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order imposing an administrative fine of $1,000 on the Respondent. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 30th day of May, 2003. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701 Donna H. Stinson, Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact The Respondent, Willia's Bahamas Home Care Center (Willia's), is an Assisted Living Facility (ALF) located at 125 W. Dixie Highway, Riviera Beach, Florida, with a standard license to operate an ALF for 24 residents. Petitioner, Agency for Health Care Administration (Agency), surveyed the facility on November 9, 1994 and cited deficiencies. A time frame was given to the facility for the correction of thirty deficiencies. As a result of the survey of November 9, 1994, the facility was issued a conditional license. On September 28, 1995, a fire inspector from the Riviera Beach Fire Department conducted an appraisal visit of the facility. Many deficiencies were cited and the facility was furnished with a letter dated September 29, 1995, listing the deficiencies and requesting that Willia's notify the Fire Department when the deficiencies were corrected so that the Fire Department could conduct a follow up inspection. During the September 28, 1995, visit, the fire inspector noticed that a lawn mower was in an inside room with a container of combustible liquid next to a gas water heater. This condition posed an immediate threat to the residents of the facility and the fire inspector had the facility move the lawn mower before he left the facility. The fire inspector also noted on the September 28 visit that the fire alarm system was not working. The fire alarm system had been out of service for some time and was not being monitored. There were no reports of testing or inspection of the fire alarm system. The lack of a working fire alarm system prevented immediate identification of a fire problem, the immediate alerting of the residents for escape, and the immediate notification to the fire department. On January 4, 1996, an employee of the Riviera Beach Fire Department, made a follow-up visit to Willia's. The fire alarm system was still non- functional and had been since July, 1995. The facility is a two-story building which does not have a sprinkler system. The lack of a functional fire alarm system posed a threat to the safety of the residents. On September 28, 1995, the Environmental Services' section of the Department of Health and Rehabilitative Services conducted an appraisal visit of the facility. Deficiencies were cited and the facility was furnished with an inspection report dated September 28, 1995, which listed the deficiencies. The following deficiencies were a threat to the health, safety, and welfare of the residents: 1) hot water at a temperature of 122 degrees Fahrenheit; 2) an extension cord that was too long which presented a trip hazard; and 3) protruding nails. On October 13, 1995, Environmental Services conducted a follow-up visit and found that the most serious of the deficiencies had been corrected. On September 28, 1995, the Agency conducted an appraisal visit of Willia's along with Nathan Wetiz, a member of the Ombudsman Council. Thirty one deficiencies were cited. Fifteen of these deficiencies had been previously cited during the November 9, 1994, visit by the Agency. The facility was given a statement of deficiencies along with a time frame for correcting the deficiencies. Some of the residents of the facility were entitled to receive personal funds from OSS/SSI. The records at the facility showed that the residents were being asked to sign for the funds two months before the funds were due to be disbursed. At the time of the September 28, 1995 appraisal visit both Mary Jane Battaglia, R.N. and Mr. Weitz found that residents' medications were being recorded in error. Medications were recorded as having been administered on the day after the survey. The records showed that residents were not being given their medications at the prescribed times. The nurse counted the medications of one resident and compared them with the medication record and found that there were medications which were not being given as prescribed. Such medications included Persantin which reduces blood clots and Verapamil which reduces the heart rate and prevents strokes. During the September 28 visit, Ms. Battaglia discovered that one resident was inappropriate for an ALF. This resident required the assistance of two people to help her stand. The resident was unable to propel herself in a wheel chair and had diminished vision. She had to be given her medications, which were being administered by unlicensed staff. The resident needed 24-hour nursing supervision. During the visit, Mrs. Mackey was observed being verbally abusive to the resident, telling her to shut up and calling her stupid. In addition to the deficiencies discussed in the preceding paragraphs, the following deficiencies were also cited. The weight records of the residents were being filled in without weighing the residents, thereby threatening the residents's health since there would be no way to track whether the residents were actually losing weight. One resident was being restrained by 3/4 bedside rails without a physician's order. Activities were not being provided for the residents. There was no documentation that the nutritional needs of the residents were being met. Menus were not being reviewed by a licensed dietitian. The posted menus were not being followed and the meals were not served on time. Two screw-in fuses were missing in the day room, which could lead to residents being shocked. On October 10, 1995, the Agency advised the facility that it was being placed under a moratorium. At that time Willia's had a census of nine residents. By letter dated October 17, 1995, the Agency gave written notification to the facility of the moratorium. A follow-up visit was conducted on November 29, 1995 by Joe Narkier and Nathan Weitz. Twenty deficiencies were cited including nineteen uncorrected deficiencies and a violation of the moratorium imposed on October 10, 1995. Eleven of these deficiencies were deficiencies which had been cited during the November 9, 1994 survey. At the time of the November 29 revisit, the following conditions still threatened the health, safety, and welfare of the residents. The fire alarm system still was not working. There was an inappropriate resident in the facility, who needed care beyond that which the facility was licensed or staffed to provide. Medication records were inaccurate. Semi-annual weights were still not being recorded for all residents. Menus were not being followed and meals were not being served on time. Another follow-up visit was conducted on January 10, 1996. The deficiencies which were noted in the November 29 visit had not been corrected. Administrative Complaint number 9-95-639 ACLF was issued against Willia's, fining the facility $2,400 as a result of twelve deficiencies which were found at the November 9, 1994 survey which were repeat violations found during the September 28, 1995 appraisal visit. No hearing was requested by the facility. A Final Order was issued by the Agency on December 1, 1995, imposing the fine against Willia's for the repeat deficiencies alleged in the administrative complaint. At the final hearing Mrs. Mackey, the administrator of Willia's stated that she was going to voluntarily surrender her license to the Agency. She tendered the license to the Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the imposition of the moratorium. DONE AND ENTERED this 15th day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 15th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5676 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact: Paragraphs 1-9: Accepted in substance. Paragraph 10: Accepted to the extent that the resident were signing for funds before the funds were due to be disbursed. Rejected that the residents were not receiving funds as hearsay. Paragraphs 11-12: Accepted in substance. Paragraph 13: The tenth sentence is rejected as hearsay. The remainder is accepted in substance. Paragraph 14: Accepted in substance. Paragraph 15: The eighth sentence is rejected as hearsay. The tenth sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 16: Accepted in substance. Paragraph 17: Rejected as unnecessary. Paragraph 18: Accepted in substance. Paragraph 19: Accepted in substance to the extent that Mrs. Mackey intended to voluntarily surrender the license for the facility. Respondent's Proposed Findings of Fact: The Respondent did not file proposed findings of fact. COPIES FURNISHED: Linda L. Parkinson Senior Attorney Agency For Health Care Administration Division of Health Quality Assurance 400 West Robinson Street, Suite S-309 Orlando, Florida 32801-1976 Willia Mae Mackey Owner/Administrator Willa's Bahamas Home Care Center 125 Old Dixie Highway Riviera Beach, Florida 33404 R. S. Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issue in the case is whether the alleged violations set forth in the Petitioner's Administrative Complaint are true, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is a state agency charged with the regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2004). The Respondent, Twistee Treat, is a restaurant located at 2301 South Jim Redman Parkway, Plant City, Florida. The Petitioner's official records indicate that Twistee Treat is owned by DWDC, Inc. At the hearing, Derek Scott stated that he is the owner. This discrepancy was not addressed at the hearing, but is immaterial. The Respondent holds License No. 3911021 (Permanent Food Service). Louay Bayyat is a sanitation and safety supervisor with the Division of Hotels and Restaurants. His duties include inspecting food service establishments for compliance with applicable law. On December 1, 2003, Mr. Bayyat conducted an inspection of Twistee Treat and issued an inspection report. In his December report, Mr. Bayyat noted several violations, among which were the three violations that are alleged in the Petitioner's Administrative Complaint: a hand-wash sink was not connected to pressurized water; a restroom door was not self-closing; and there was no restroom accessible to the public. The inspection report indicated that the violations had to be corrected by January 1, 2004. Mr. Bayyat conducted a "call back" inspection of Twistee Treat on January 12, 2004, and noted in his inspection report for that date that the three violations found during the previous inspection, identified above, had not been corrected. The Petitioner asserts that the hand-wash sink and public restroom violations are "critical" violations that pose imminent harm to the public. However, the Food Service Inspection Report, DBPR Form HR 5022-015, used by Mr. Bayyat and submitted into evidence by the Petitioner, suggests that the three alleged violations in this case are not critical violations. The form indicates by an asterisk the violations that are critical, and the three violations charged by the Petitioner are not marked with an asterisk. The December 1, 2003, inspection report was signed by Derek Scott, and the January 12, 2004, inspection report was signed by Sommer Kelly, the night manager for Twistee Treat. The Petitioner stipulated at the hearing, that signing the inspection reports is not an admission of the truth or accuracy of the statements contained in the reports, but merely an acknowledgement of receipt of the report. Hand-Wash Sink The purpose of the requirement to provide pressurized water to the hand-wash sink is for convenient and effective hand-washing by employees who handle food prepared for consumption by the public. The Respondent did not dispute that the hand-wash sink is not connected to pressurized water. Instead, evidence was presented through the testimony of Derek Scott and Don Scott, the previous owner of the Twistee Treat in Plant City and the owner of two other Twistee Treats in Lakeland, Florida, that no other inspector for the Division of Hotels and Restaurants had ever indicated that this hand-wash sink violates state law. Self-Closing Restroom Door The purpose of requiring restroom doors to be self- closing is to minimize the potential for spread of disease through insects and rodents. There is no dispute that, at the time of the December 1, 2003, inspection, the door to the restroom at the Twistee Treat was not self-closing. The violation was corrected, and there is now a device on the door to make it self-close. The only dispute concerned whether the violation was corrected before or after the January 12, 2004, inspection. The testimony of Derek Scott and Mr. Bayyat on this factual issue is contradictory, and there is no other evidence in the record that resolves the contradiction. Neither Derek Scott nor Mr. Bayyat was more credible than the other on this particular issue. Public Restroom Under state law, the number of seats at a restaurant determines the number of public restrooms that must be provided. Mr. Bayyat noted in his inspection reports that there were 13 tables with seating for 26 persons at Twistee Treat. Deborah Cribbs, a manager at Twistee Treat since 1997, stated that it would be impossible to have 13 tables at Twistee Treat because of the limited space available for tables. The Respondent's Exhibits 2 through 4, which are photographs taken in June 2005 of the Twistee Treat building and facilities, support the Respondent's position on this issue. The more credible evidence of the seating provided at Twistee Treat at the time of the inspections was the testimony of Derek Scott and Ms. Cribbs, who stated that there were five tables and 13 seats. There are now three tables and seven seats at Twistee Treat. There is a restroom at Twistee Treat, but it was disputed whether the restroom was available to the public, or only to employees. Mr. Bayyat's determination that there was no restroom available to the public was based on his belief that the only access to the restroom was through the kitchen. Derek Scott claimed that the public had access to the restroom through the back door of Twistee Treat. The back door of Twistee Treat is hidden from view by a fence. The fence creates a small enclosure within which are a walk-in cooler, a sink, a hose, and the back door of the building. There is no sign on the fence that informs a person that a public restroom is somewhere behind the fence. Because the back door is not visible to the public and there is no sign indicating how to gain access to the restroom, I find that Twistee Treat does not currently provide a restroom accessible to the public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order that finds the Respondent violated Florida Administrative Code Rules 61C-1.004(1) and 61C4.010(7)(e), and imposes an administrative fine of $300 against the Respondent. DONE AND ENTERED this 26th day of July, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 26th day of July, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Derek Scott Twistee Treat 2301 Jim Redman Parkway Plant City, Florida 33563 Derek Scott 1423 Ridge Green Loop, North Lakeland, Florida 33563 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for consideration herein is whether Respondent's license to operate an Adult Congregate Living Facility, (ACLF), should be disciplined because of the deficiencies outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent's Matt Holohan and Noelle D. Holohan, his wife, operated an ACLF, Holohan's, located at 7737 91st Street North in Seminole, Florida. The Department was and is the state agency responsible for licensing and monitoring the operations of ACLFs in Florida. On April 20, 1989, Alice Adler, a human services program analyst with the Department's Tampa OLC, performed an annual survey of the Respondent facility during which she reviewed the facility operation for compliance with the Department's minimum standards. During the course of the survey, Ms. Adler discovered several minor discrepancies which included a failure to insure that each person employed by the facility who might come into contact with potentially infectious material, was trained in infection control procedures for blood and other bodily fluids, (ACLF 408) and a failure to insure that leisure activities were documented on a leisure calendar to indicate activity and approximate time. There were no assurances given or shown that residents were provided with a minimum of one hour per day of social and leisure activity, Monday through Friday, (ACLF 1011). Ms. Adler's evaluation revealed that the facility did not have any infection control procedures in place nor was the Administrator able to demonstrate any evidence that the staff, one lady hired to clean the facility on a regular basis, had been trained in such procedure. The Administrator, Ms. Holohan, had received Administrator training, but no additional training in the area in question. When Ms. Adler asked to see the records of the facility regarding training, and reviewed the employee records, she was unable to find any evidence of either a program or some time of unorganized training. With regard to the deficiency dealing with leisure time activities, her review failed to uncover any program of any nature. Ms. Adler discussed the matter with Ms. Holohan, and with the residents, and none were able to describe to her any type of regularly scheduled activity. Throughout the course of her evaluation, Ms. Adler was accompanied by Ms. Holohan and when the survey was concluded, she conducted an exit interview with Ms. Holohan during which she discussed the deficiencies discovered and agreed with her on dates by which these deficiencies were to be corrected. At the time she left the facility, Ms. Adler delivered to Ms. Holohan an exit notice which contained instructions as to how to protest any of the cited deficiencies and which invited comments and questions regarding further activity. Ms. Holohan signed an acknowledgment of Receipt for that form. Thereafter, after returning to her office, Ms. Adler completed a deficiency report outlining all deficiencies including those listed here, which was forwarded to the facility. The deficiency report was accompanied by a cover letter which included Ms. Adler's name and address as the person to contact for clarification of any questions regarding the deficiencies noted or with a request for an extension of time for correction. No questions were received nor were any extensions requested. Ms. Holohan acknowledged receipt of the notice of deficiencies on May 12, 1989. On July 13, 1989, Ms. Adler made a follow up visit to the facility and found that neither of the two deficiencies cited here had been corrected. With regard to the first, no procedures had been established and no written documentation was made available for her to review. With regard to the activities calendar, nothing had been established to correct this deficiency either. At that time Ms. Holohan indicated she had only two residents, one of whom was blind. They kept themselves busy and she didn't feel any formalized program was necessary. Mr. Holohan stated that at the time of Ms. Adler's first visit they had a lady available as an employee to do the housecleaning. When they were told that it was necessary that this employee have a health certificate of freedom from communicable diseases and be trained in the handling of hazardous materials, these requests were passed on to the employee who quit immediately rather than comply with either request. Thereafter, for several weeks, Ms. Holohan did the housecleaning by herself. In July, 1989, the Holohan's hired a certified nurse's aide to clean the house, and other than that individual, Ms. Holohan remained the only person in contact with body fluids. This aide was, however, not given the required training and, thereafter, left the facility's employment. Since that time, they have hired three other people on a part time basis who have received the proper required training. At the hearing, Mr. Holohan offered a handwritten procedure for handling infectious materials signed by Ms. Holohan, which was delivered, subsequent to the second inspection, to Ms. Adler at the Department's Tampa office. When this document was submitted, the deficiency was determined to have been corrected. However, neither at the time of the first survey, nor at the time of the second, was this document presented as evidence of compliance. Consequently, it is clear that at the time of both survey visits, though the documentation may have existed, it was not presented as is required by the Rule, nor was any indication given that it existed. At both visits, Ms. Holohan indicated none was in effect. Had such a document been presented on either visit, it would have been accepted and the deficiency not memorialized. The Department does not have a pre-written procedure against which it measures the programs developed by the facility. The onus of responsibility is on each facility to develop the program pertinent to that facility which it needs and since no standards are set by law, it is up to the facility to determine and outline what it proposes to do. In almost every case, the Department has to accept the submission by the facility. In this case, when the handwritten procedure mentioned above was submitted to the Department, it was satisfactory and the requirement satisfied. With regard to the activities deficiency, according to Mr. Holohan, it did not seem important to record those items that were considered important to the Department. He contends, however, that though no formal program was memorialized, they did the following things which, he feels, constitute an appropriate activities program. They subscribe to three magazines each month; either Mr. or Ms. Holohan takes the residents to the mall whenever they can do so and the residents desire; and both at the breakfast and dinner meals, Mr. Holohan conducts a discussion of current events. According to Mr. Holohan, most activities center around the meal times. At breakfast, for example, the residents' horoscopes are read from the paper. Another activity is the feeding of the wild squirrels and birds which come to the house. These above cited activities were not, however, listed on any formal activity report nor were they scheduled in advance, as is required, because they were considered to appear too trivial. Nonetheless, according to Mr. Holohan, the facility has an activities report as is required by the Department. Be that as it may, at neither the first nor second survey was such a report, required by the Department, kept and available. Mr. Holohan claims he is almost "insulted" by the Department's suggestion that his facility's activities are not what they should be. He claims to have spent approximately $1,500.00 in redoing the patio for the residents, and he also takes them on trips to the park and to concerts when the residents indicate they want to and are capable of going. No evidence was presented, however, as to how often this was actually done over the past year, for example. The key, however, is the residents' physical ability to participate in these activities, but Mr. Holohan claims he is ready to provide the service when requested. In addition, he purchased a four door automobile so that he would be able to take the residents more comfortably to wherever they wanted to go.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Secretary issue a Final Order herein imposing an administrative fine of $250.00. RECOMMENDED this 2nd day of July, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 2nd day of July, 1990. COPIES FURNISHED: Edward A. Haman, Esquire DHRS - Office of Licensure and Certification 7827 North Dale Mabry Highway Tampa, Florida 33614 Noelle M. Holohan Administrator Holohan's 7737 91st Street North Seminole, Florida 34647 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether Respondent, New Life Charities, Incorporated, Owner and Operator, Janae House Group Home (New Life or Janae House or Respondent), violated one or more of the group home licensure standards as alleged by the Agency for Persons with Disabilities (APD or Petitioner) in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Janae House is a group home owned by New Life located at 17130 Southwest 41st Court, Ocala, Florida 34473. It is licensed as a group home by APD. As a group home licensing agency, APD has multiple employees assigned to monitor group homes and their employees. In monitoring a group home's compliance with applicable licensing standards, APD also reviews findings of group home investigations conducted by the Department of Children and Families (DCF). The Complaint charges Janae House with two Class I violations of group home licensing standards from reported incidents allegedly occurring in 2013 and 2015. The Complaint further alleges that in 2014, Janae House was responsible for numerous other violations of group home licensing standards, including 10 alleged Class II violations and 25 alleged Class III violations. CLASS I VIOLATIONS Florida Administrative Code Rule 65G-2.0041(4)(a) includes as Class I violations "all instances where the Department of Children and Families has verified that the licensee is responsible for abuse, neglect, or abandonment of a child or abuse, neglect or exploitation of a vulnerable adult." The two alleged Class I violations against Respondent stem from 2014 DCF investigations of alleged incidents occurring in 2013 and 2014, respectively. According to Count I of the Complaint, Janae House's first alleged Class I violation occurred in 2013 and was verified in a February 2014 DCF investigative report prepared by Charles Bory. Mr. Bory conducted the investigation in person and testified at the final hearing regarding his investigation. At the time of the report, Mr. Bory was an adult protective investigator for the Department of Children and Families. Mr. Bory's investigation concerned an allegation that a New Life employee caused Janae House resident RB to fall and injure his shoulder. During the investigation, Mr. Bory spoke with the owner of New Life, Kevin Rivers, who denied the allegation, stating that the allegation was "crazy," that resident RB had tried to escape, fallen while doing so, and hurt his shoulder in the fall. Mr. Bory later interviewed the alleged perpetrator, a former staff member of New Life, who admitted that he and resident RB fell to the ground while he was holding resident RB and trying to stop resident RB from leaving. Given the staff member's admission, Mr. Bory found that the allegation was verified. Mr. Bory's testimony and the investigative report support the allegation, which is found to have occurred. The other alleged Class I violation is from a 2014 incident alleged in Count III of the Complaint. As to this second alleged Class I violation, although APD submitted DCF's investigative report, the investigator who conducted that investigation did not testify. Rather, APD called the investigator's supervisor, who advised that the investigator was no longer employed by DCF and was unavailable. The investigator's supervisor further testified that he did not know if any of the information in the investigative report was true. Under the circumstances, it is found that the investigative report for the 2014 alleged incident is hearsay and prepared in anticipation of litigation. Further, that 2014 investigative report is not corroborative of other evidence and the evidence is otherwise insufficient to find a Class I violation stemming from the 2014 incident.2/ CLASS II VIOLATIONS Rule 65G-2.0041(4)(b) classifies Class II violations as violations that "do not pose an immediate threat to the health, safety or welfare of a resident, but could reasonably be expected to cause harm if not corrected." In October 2014, APD Investigator Michael McKenna found a broken window at the Janae House that had been improperly repaired, with glass still lying in the yard and in the window frame. Given the fact that the Janae House is a behavioral home, a broken window with exposed broken glass presents a direct risk that a resident may hurt themselves or another. Mr. McKenna advised owner Kevin Rivers about the window and its danger during the October 2014 visit. On a return visit in November 2014, Mr. McKenna noted that the window was broken again, and that, for a second time, jagged glass was left in the window. When Mr. McKenna spoke to Mr. Rivers again, Mr. Rivers' response was that the investigator was intentionally looking for items to note. During her visit to Janae House on August 8, 2014, APD licensing supervisor Joyce Leonard observed that there was no carbon monoxide detector in the home and that the smoke detector needed a battery. Ms. Leonard also observed that the pantry door in the kitchen was broken. Mr. Rivers was advised of these deficiencies. Two months later, during a monitoring visit to Janae House on October 29 and 30, 2014, Investigator McKenna observed that there was still no carbon monoxide detector in the home and that the smoke detector lacked a battery. During that same visit, Mr. McKenna also observed broken doors and holes in the wall. In cases where a behavioral analyst is not available for residents needing behavioral services, APD regulations require a short one- or two-page sheet of procedures from the residents' health care provider for group home employees to follow in case of problematic behaviors. While monitoring Janae House on February 24, 2014, APD Senior Behavior Analyst Scott Traynor noted that, although Janae House resident JR had the need, no behavior analyst was available for resident JR. There was also no behavior procedure sheet specific to resident JR. CLASS III VIOLATIONS Rule 65G-2.0041(4)(c) classifies Class III violations as "statutory or rule violations related to the operation and maintenance of the facility or to the personal care of residents, other than Class I or Class II violations." When Joyce Leonard visited Janae House on August 8, 2014, Ms. Leonard observed that there was garbage strewn throughout the front yard. On his October 29 and 30, 2014, visit, Michael McKenna discovered that there was no physical exam on file for resident JR, there were no financial records of residents’ personal funds available for review, a Janae House staff member was administering medication to residents even though there were no current medication administration training credentials on file, and there was no communication log for Janae House staff. During that same visit, Mr. McKenna observed exposed light bulbs in their fixtures, filthy rugs throughout the home, a dryer was full of lint, numerous wasps nests on the outside of the building, and various debris littered throughout the grounds. New Life owner, Mr. Rivers, was made aware of these deficiencies at the time and advised that he would correct them. Corrections, however, were not made. Upon Mr. McKenna’s return to Janae House on November 20, 2014, there were no financial records available for review for resident KJ’s personal funds, no documentation of an annual dental visit for resident KJ, no weekly schedule for staff, and light bulbs were still exposed. During Scott Traynor’s visit to Janae House on February 24, 2014, he found that a board-certified behavior analyst was not monitoring at least 50 percent of Janae House staff each month as required, and that Janae House did not have site-specific reactive strategy procedures for staff to implement, if needed. He also discovered that, despite ADP’s request, the behavior analyst for Janae House resident DJ did not present resident DJ's behavior plan to the local review committee for review, and that Janae House staff was not conducting quarterly or semi-annual quality assurance meetings to review reactive strategies and develop strategies for behavioral incident reduction. APD also alleged that, during her review and investigation, former APD Medical Case Manager Victoria McKenna discovered that Janae House had violated a number of medical regulations. Ms. McKenna, however, did not testify. Rather, APD attempted to prove the alleged medical violations by submitting reports and notices of violations allegedly observed by Ms. McKenna and by offering the testimony of Michelle Young, a current APD medical case manager, who testified that notices of noncompliance are the same regardless of who does them. However, as in the alleged Class I violation that was only supported by an investigative report, it is found that the notices of violations prepared by Ms. McKenna, without more, are hearsay, prepared in anticipation of litigation, and insufficient to prove the alleged medical violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order finding that Respondent violated the group home licensing standards as concluded above and revoking Respondent’s group home license. DONE AND ENTERED this 14th day of July, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2016.
