Findings Of Fact At all times here relevant Fountainhead Nursing and Convalescent Homes, Inc., Respondent, was licensed by the Department of HRS, Petitioner, as a nursing home. On a survey of the nursing home facilities conducted on April 8 and 9, 1980 five Class II deficiencies and twenty Class III deficiencies were reported on HRS Form 553D entitled Classification of Deficiencies for Nursing Home Licensure Requirements (Exhibit 1). These were designated HRS-1, 3, 14, 15 and 20 on Exhibit 1. Because of these Class II deficiencies Respondent was assigned a "C" rating. HRS-1 is a deficiency correctable within 72 hours. HRS-3, 14 and 20 are Class III deficiencies erroneously characterized as Class II deficiencies.
The Issue The issues are whether Respondent is guilty of caring for a resident beyond the scope of Respondent's license and whether Respondent failed to ensure that an employee timely obtained a tuberculosis test.
Findings Of Fact Respondent owns and operates a licensed assisted living facility (ALF) known as Harborview Acres in Port Charlotte. Respondent's ALF license does not include an extended congregate care license or a limited nursing service license--both of which authorize an ALF to provide additional services to its residents. Petitioner conducted an biennial survey of Respondent's facility on August 24, 1998. As a result of findings made during the survey, Petitioner cited Respondent for two deficiencies that are at issue in this case. The first cited deficiency is Tag A 006, which asserts that Respondent's license does not authorize the type of care that it was providing to one resident, who is identified as Resident 3. Petitioner's surveyors saw one meal during which Resident 3 refused to feed herself. She ate while a staffperson helped her eat, but, as soon as the staffperson walked away, Resident 3 began to spill food onto herself. Resident 3 was confined to a wheelchair and required assistance in transfers from and to her wheelchair. She required assistance in various activities of daily living, such as dressing herself, combing her hair, and bathing. However, unknown to the surveyor and staff, Resident 3 was ill with a urinary tract infection. A few days previously, she had been walking with a walker, but otherwise without assistance, and had been feeding herself. The record does not permit a finding that the condition of Resident 3 was such as to require services beyond the scope of Respondent's license. During the survey, one surveyor reviewed staff files and found that the documentation for Staff 3, who had been hired on July 12, 1996, revealed no tuberculosis test since August 17, 1997. Zia Butt, the administrator, admitted that the employee's test was overdue. As Ms. Butt explained, the employee had gone to the County Public Health Office for a tuberculosis test, but the office had been unable to conduct the test and told her to return in a week. Petitioner properly classified this deficiency as a Class III deficiency. The failure of a caregiver to obtain annual tuberculosis tests indirectly or potentially threatens the physical or emotional health, safety, or security of the residents of the facility. The surveyor gave Respondent until September 21, 1998, for Staff 3 to obtain a tuberculosis test. The record does not establish that Respondent failed to correct this deficiency within the time permitted. Likewise, the record does not establish the factual basis for the allegation that this is a repeated offense.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration dismiss the Administrative Complaint against Respondent. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 4th day of June, 1999. COPIES FURNISHED: Karel L. Baarslag Senior Attorney Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33906-0127 Zia Butt Administrator Harborview Acres, Inc. 4950 Pocatella Drive North Port, Florida 34287 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Respondent, ACLF, was inspected May 5, 1985, and some 29 Class III deficiencies were noted and a schedule of correction was established to have these deficiencies corrected by June 6, 1985. At a follow-up visit July 11, 1985, some 19 of these deficiencies had been corrected while 10 remained uncorrected. As a result of failure to timely correct these deficiencies Respondent was assessed a $1000 fine which was paid. A subsequent inspection of Respondent's facility was conducted on February 3, 1986, with the following previously reported violations uncorrected: No personnel policies and work assignments. No written work schedule for employees. No assurance staff trained in providing personal hygiene care. Written job descriptions not available for review. Employees not furnished written policies governing conditions of employment. Strong urine odor in rear bedroom. Additionally, eight new Class III deficiencies were noted with four classified as food service standards, three physical plant standards and one fire safety standard. Respondent submitted a schedule to correct these deficiencies (Exh. 3) indicating all deficiencies corrected prior to 2/27/86. No reinspection has been conducted by Petition to confirm these Class III deficiencies have been corrected. New discrepancies noted on February 3, 1986, included menu not posted where it could easily be seen by residents, menu not corrected as served, oven door broken off, potentially hazardous food at room temperature in kitchen, screen on front door torn, clothes closet door off track, vanity in bedroom had part of facing missing, exposed wiring in living room area, shower head missing in one bathroom, and two ceiling fans serviced by extension cord wiring. The menu was posted on the side of the refrigerator where it had been kept for three years and was readily visible to residents. Respondent testified the menu was corrected as served on the back of the menu, but the inspector contended such corrections must be on a separate paper. This testimony was not rebutted. The inspection on February 3, 1986, occurred shortly after the breakfast meal was served and all of the food had not been replaced in the refrigerator. This included one can of fruit that was the subject of this discrepancy. No inquiry was made as to how or when the screen was torn on the front door. Exhibit 3 indicates the deficiency was repaired February 10, 1986. All of these discrepancies were corrected by February 21, 1986 (Exh. 3). All discrepancies at any inspection relating to fire safety were timely corrected by Respondent. Respondent facility is operated by Mrs. Gilpin, her husband and adult daughter, who comprise the employees of the facility. Each testified that he/she has all of the certifications required to work in an ACLF and that each job description was included in the daily work schedule that was posted. It appears from the testimony that at times other employees have been utilized and Ms. Gilpin stated they fill out time cards showing time they commenced and stopped work and that their work schedule is included in the cleaning schedule they carry out. Respondent explained the strong urine odor as coming from the room occupied by a patient with a urostomy early in the morning before the room was cleaned. The death of this person subsequently solved the odor problem.
The Issue The issue is whether Petitioner, Madeline Smith, d/b/a Madeline L. Smith Boarding Home, (Smith) is entitled to relicensure as an Adult Congregate Living Facility (ACLF) or should be denied relicensure based upon intentional or negligent acts which seriously affect the health, safety or welfare of a resident or residents of the ACLF, as more particularly stated in the denial letter dated September 26, 1985. Petitioner presented the testimony of Madeline Smith, E'Lona Hogan, Carlos Martinez, Jo Ann Brooks, John Wade, Stephen Noulin, John Noulin and Dorothy Kaplan. Petitioner's Exhibits 1-16, 18-20, and 24 were admitted in evidence. Respondent, the Department of Health and Rehabilitative Services (DHRS), presented the testimony of James Valinoti, Phillip Drabick, Paul Grassi and Elizabeth Baller, together with Respondent's Exhibits 1, 2 and 4 which were admitted in evidence. The transcript of these proceedings was filed on June 19, 1986. The parties were to file proposed orders within 30 days of the filing of the transcript. On July 10, 1986, Petitioner filed a Motion for Extension of Time, requesting until after August 4, 1986, to file a proposed order. The motion was granted by order dated July 15, 1986, wherein the parties were granted to and including August 15, 1986, to file their proposed orders. Respondent filed its proposed recommended order on August 18, 1986. To date Petitioner has failed to file a proposed order. Accordingly, this Recommended Order is entered without reference to or consideration of a proposed order by Petitioner. All proposed findings of fact and conclusions of law filed by Respondent have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part hereof.
Recommendation Based upon 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 renewal of the ACLF license of the Madeline L. Smith Boarding Home. DONE and ORDERED this 15th day of September, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1986. COPIES FURNISHED: James A. Pearson, Esquire 2435 Hollywood Boulevard Hollywood, Florida 33020 Dennis Berger, Esquire Office of Licensure and Certification 5190 N. W. 167 Street Miami, Florida 33014 William Page, Jr., Esquire Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Respondent's Proposed Findings of Fact. Each and every proposed finding of fact of Respondent is adopted in substance in Findings of Fact 1, 2, 3, and 4.
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 issues in DOAH Case No. 10-0528 are whether the allegations set forth in the Administrative Complaint dated December 4, 2009, are correct, and, if so, what penalty should be imposed. The issue in DOAH Case No. 10-1672 is whether the application for license renewal filed by Avalon's Assisted Living LLC, d/b/a Avalon's Assisted Living and d/b/a Avalon's Assisted Living at Avalon Park (hereinafter Avalon I), should be approved. The issue in DOAH Case No. 10-1673 is whether the application for license renewal filed by Avalon's Assisted Living II LLC, d/b/a Avalon's Assisted Living at Southwest (hereinafter Avalon II), should be approved.
Findings Of Fact Avalon I is a six-bed assisted living facility (ALF), operating at 1250 Willow Branch Drive, Orlando, Florida, 32828, and holding license number 10813 with Limited Nursing Services licensure. Avalon II is a six-bed ALF operating at 13230 Early Frost Circle, Orlando, Florida, 32828, and holding license number 11318 with Limited Nursing Services licensure. Avalon I and Avalon II are operated by a limited liability company owned by Chiqquittia Carter-Walker and Robert Walker. Mrs. Carter-Walker acts as the administrator of the facilities. On July 23, 2009, the Agency conducted an inspection of Avalon I and determined that there were three "Class II" deficiencies, commonly cited as "tags" in reference to applicable regulatory standards. Tag A029 alleged that the training certifications, contained within the facility's personnel files to document the provision of required employee education, were false and that the training had not been provided. The training certificates for one Avalon I staff member were not accurate and falsely indicated that the referenced employee received training that had not been provided. The falsification was deliberate and was not erroneous. The inaccurate documentation of employee training misstated the qualifications of the ALF staff, falsely indicated that the staff was adequately trained, and presented the potential for harm to the health of the residents. The Agency correctly identified the deficiency as Class II. Tag A427 was based on regulatory provisions that permitted a terminally ill resident, no longer meeting the criteria for continued ALF residency, to remain in the ALF under certain conditions. The July 23, 2009, inspection indicated that such a resident continued to reside at Avalon I without compliance with relevant conditions. The conditions under which the terminally ill resident was permitted to remain at the ALF required that the hospice coordinate the care and provision of additional medical services and that an interdisciplinary care plan be developed and implemented by the hospice in coordination with the ALF. The July 23, 2009, inspection revealed that the interdisciplinary care plan failed to adequately designate responsibility for the various kinds of care required by the resident. The inspection revealed that a terminally ill resident remained in Avalon I without receiving appropriate medication for pain management even though such medications had been authorized. Although the ALF had undertaken the responsibility of administering the pain medication, there were occasions when no Avalon I staff member authorized to administer the pain medication was present at the ALF. Patient records indicated that the hospice representative attempted at several junctures to contact Mrs. Carter-Walker by telephone to resolve the problem and that Mrs. Carter-Walker was not accessible to the hospice representative. The resident unnecessarily suffered pain because the issue was not resolved in a timely manner. The failure to provide a terminally ill resident with appropriate pain medication resulted in a direct threat to the physical and emotional health of the resident, and, therefore, the Agency correctly identified the deficiency as Class II. Tag A700 reflects standards for resident care and requires that appropriate services be provided to residents. The July 23, 2009, inspection indicated that one resident was not being provided a nutritional supplement and that two residents were not being provided appropriate pain-relieving medications. As to the provision of nutritional supplementation, one resident with a history of weight loss had been prescribed a daily can of "Ensure" nutritional supplement. According to the facility records, the supplement had not been acquired by the ALF and had not been provided to the resident. As to the residents who were not receiving proper pain medication, one of the two was the terminally ill resident referenced in relation to Tag A427. As stated previously, the resident unnecessarily suffered pain because medication was not appropriately administered, which resulted in a direct threat to the health of the resident. Therefore, the Agency also correctly identified the deficiency cited as Tag A700 as Class II. The second resident had a history of hypertension and hypothyroid issues and had been prescribed a daily Ibuprofen (400mg) for pain. The Avalon I medication records indicated that, on some days, the medication had been provided twice daily to the patient, and, on other days, it had not been provided at all. The evidence establishes that the deficiencies identified in Tags A427 and A700 indicate a failure of the ALF to provide appropriate care and service to the residents of the facility. According to the uncontroverted testimony of Agency investigators as documented by the reports of their inspections, numerous lesser deficiencies were identified at Avalon I between 2007 and 2009, constituting a continuing pattern of inadequate performance and a failure to meet relevant standards. On August 5, 2009, an inspection conducted by the Agency at 1812 Crown Hill Boulevard, Orlando, Florida, 32828, indicated that an unlicensed ALF was operating at that address. On August 5, 2009, the Agency's investigator observed five individual residents in Avalon III. The investigator reviewed health assessments for the residents, all of whom required assistance with activities of daily living, including personal hygiene, ambulation, and meals. Medications for the residents were stored in a central area. The investigator reviewed medication observation records, indicating that the residents self-administered medications with observation by the Avalon III staff. Signage was present at Avalon III that identified Mrs. Carter-Walker as the administrator of the Avalon III facility. During the August 5, 2009, inspection, Mrs. Carter- Walker arrived at Avalon III and identified herself as the administrator of the facility. The investigator was familiar with Mrs. Carter-Walker and knew her as the administrator for Avalon I and Avalon II. Mrs. Carter-Walker identified herself as the Avalon III administrator to other care providers, including a clinical social worker, a registered nurse providing contract health care services to facility residents, and Administrators at other local ALFs. According to the testimony of an employee of Avalon III, there had been residents in the Avalon III location since at least June 16, 2009, at which time the staff member began to work at the facility. She worked five days per week, providing the resident services identified herein. During that time, there were always at least three residents in the facility. The same residents were present on a day-to-day basis. There is no evidence that such residents were transported out of the facility during the evening or that they did not otherwise remain at the Avalon III location overnight. A licensed practical nurse present at the Avalon III location on August 5, 2009, was the person who permitted the Agency's investigator to enter into the facility. The nurse was at the location to provide personal care assistance to a terminally ill resident receiving care through an agreement between the Mrs. Carter-Walker, as the facility administrator, and the hospice. After Mrs. Carter-Walker arrived at the Avalon III location, she was apparently unhappy that the nurse had permitted the investigator to enter the facility, and directed the nurse to leave immediately without providing further assistance to the resident. On the day of the investigation, the Agency investigator issued a "Notice of Unlicensed Activity/Order to Cease and Desist" to Robert Walker and Chiqquittia Carter-Walker for the Avalon III operation. Mr. Walker arrived during the inspection and identified himself as an owner to the Agency investigator. On August 14, 2009, the Agency received an application for licensure of an ALF at 1812 Crown Hill Boulevard, Orlando, Florida, 32828. The application, submitted by Robert Walker as the administrator, referenced the Avalon I and Avalon II as affiliated with Avalon III through ownership. Both Mr. Walker and Mrs. Carter-Walker submitted affidavits of compliance with background screening requirements as part of the Avalon III application. At no time was Avalon III licensed as an ALF. There was no evidence that the Avalon III residents were related to Mrs. Carter-Walker or her husband. There was no evidence that Avalon III was exempt from, or otherwise not required to comply with, relevant ALF licensing requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order revoking the licenses of Avalon I and Avalon II, denying the applications for license renewal filed by Avalon I and Avalon II, and assessing an administrative fine in the amount of $3,000 for the specific Class II deficiencies identified herein. DONE AND ENTERED this 28th day of January, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 28th day of January, 2011.
The Issue Whether respondent committed the violations alleged in paragraphs 3(b), (c), (d) and (e) of the Administrative Complaint.
Findings Of Fact Respondent, Kinder Kastle Day Care Center (Kinder Kastle), located in Bradenton, Florida, is licensed to operate as a child day care facility under Chapter 402, Florida Statutes, and Chapter 10M-12, Florida Administrative Code. On June 17, 1987, and on July 17, 1987, Kinder Kastle was inspected by Laura D. Winfrey to determine whether Kinder Kastle was in compliance with the provisions of Chapter 402, Florida Statutes, and Chapter 10M-12, Florida Administrative Code. When Ms. Winfrey inspected Kinder Kastle on June 17, 1987, there was one staff person in the room with 10 babies between one year and 18 months old. On July 17, 1987, when Ms. Winfrey reinspected the facility, there was one staff person responsible for nine babies between the ages of one year and 18 months. The staff person present in the room advised Ms. Winfrey of the children's ages. During the inspection of June 17, 1987, Ms. Winfrey noted that the exit lights were not turned on. At the time of reinspection on July 17, 1987, the exit lights still were not lit. However, the rooms where the exit lights were located had windows. Therefore, because the facility was only used during the daytime, the exit lights were visible even when they were not turned on and the regular lighting was off. Ms. Pillsbury, the respondent, testified that she had attempted to have the exit lights fixed in early July, so they would be continuously lit, but due to equipment that had to be ordered and other difficulties, the lights were not permanently turned on until October of 1987. During both inspections, Ms. Winfrey noted that respondent was using two different types of baby gates to block interior doorways. Ms. Winfrey considered that one of the gates was unsafe because it was not approved by the Consumer Product Safety Board. 1/ The gate had a bar and clip type mechanism and had to be moved to the side to allow exit from the room. Ms. Winfrey remembered seeing a bulletin from the Consumer Product Safety Board regarding that particular type of gate; however, she could not remember what was in the bulletin concerning the gate. Ms. Winfrey felt that the gate might be a hazard because it is not permanently attached to the wall. If it were removed from the doorway and set aside, Ms. Winfrey felt that the gate could fall and injure a child. The "approved" gate is of latticed design, consisting of hinged wood slats. The gate is permanently attached to one side of the door and opens and shuts in accordion fashion. Because of the manner of opening and closing, it is very easy for children to get their fingers pinched in the gate. The slats in the accordion gate are not as sturdy as those in the other gate and are more easily broken. There was no competent evidence presented to establish that the accordion gate was safer or more effective than the other gate respondent was using. When Ms. Winfrey inspected the facility on both occasions, she requested random samples of children's files to determine whether they contain the information required. On June 17, 1987, none of the files contained statements outlining respondent's disciplinary policies signed by the children's parents. On July 17, 1987, Ms. Winfrey inspected four files from each age group, and only four of the files had disciplinary policy statements signed by the children's parents. Ms. Pillsbury stated that of the files checked on the second visit, many of the children had not been back to the day care center since the first inspection. However, Ms. Pillsbury picked the files to be inspected by Ms. Winfrey. Ms. Pillsbury stated that all parents did get a copy of a disciplinary statement; however, there was nothing in the files documenting that this had been done. Respondent did not dispute the allegation that she failed to submit a fingerprint card, affidavit of good moral character and Abuse Registry Form within the required time frames in violation of Section 402.3055(3), Florida Statutes, and Rule 10M-12.002(1)(b)2. and (1)(e), Florida Administrative Code. On June 17, 1987, Ms. Winfrey advised Ms. Pillsbury of the violations she observed and informed Ms. Pillsbury that the violations needed to be corrected by July 17, 1987, when the facility would be reinspected. Kinder Kastle has been cited for violations on previous occasions and has paid an administrative fine.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent violated Rule 10M-12.002(1)(b)2. and (1)(e), Florida Administrative Code, Rule 10M- 12.002(5)(a)1., Florida Administrative Code, and Rule 10M-12.008(2)(f)2., Florida Administrative Code, as alleged in paragraphs 3(a), (b), and (e) of the Administrative Complaint; dismissing the charges set forth in paragraphs 3(c) and (d) of the Administrative Complaint; and imposing a total administrative fine of $135 to be assessed as follows: $30 for the Class III violation, $30 for the Other violation, and $75 for the Class II violation. DONE AND ENTERED this 19th day of January, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 19th day of January, 1988.
