Findings Of Fact By Joint Application for Works in the Waters of Florida filed April 14, 1993, Petitioner requested a dredge and fill permit. The application pertains to the construction of a 3245 square feet platform over a part of Doctors Bay in Naples. Petitioner intends to construct a home on the platform. The application explains that an existing dock covers 1200 square feet of the area proposed to be covered by the new structure. Petitioner offers in the application to enhance the habitat beneath the overwater structure by adding clean concrete rubble and pilings. The application assures that the material would provide suitable substrate and increase the surface area for encrusting organisms such as algae, barnacles, sea squirts, and oysters. The application states that Petitioner would riprap the shoreline and a deadend corner immediately west of the parcel in order to improve tidal flushing. According to the application, Petitioner would also plant mangroves near the deadend corner, as well as inside an atrium entrance to the home. The proposed structure would be located at the south end of a parking lot at the southeast corner of Park Shore Drive and Gulfshore Boulevard. West of the proposed structure is a narrow strip of land running alongside Gulfshore Boulevard. North of the proposed structure is a part of the narrow strip of land and the parking lot. The north and west sides of the proposed site are bulkheaded by vertical seawalls. The waters of Doctors Bay extend south and east of the proposed structure. To the south are a 10-slip dock and a fingerfill peninsula. To the east are several overwater structures covering about 25,000 square feet of water with each structure measuring about 50 feet by 500 feet. The structures are devoted to retail operations. The structure immediately east of the proposed structure is a restaurant owned by Petitioner. Doctors Bay is a Class II waterbody, although it is closed to shellfishing. The waterbody was originally a viable estuary, as part of a relatively shallow back bay and mangrove system. But, as a result of extensive development permitted mostly in the 1960s and 1970s, the waterbody bears little resemblance to the natural system that it once was. Vast areas of the estuary have been dredged and filled for the construction of structures and bridges. Tidal flushing has been impeded by the fill, as well as the uneven bottom left by the dredging projects. Tidal flushing in the area of the proposed project is impeded by the Park Shore Drive bridge to the north. The bay is nearly closed at the point of the bridge. The flushing problem is exacerbated at the proposed site due to prevailing currents and winds, which drive vegetative debris and trash into 90- degree corner of the bay at the site of the proposed structure. The water in this artificially created deadend corner of the bay is not without a source of agitation, however. In addition to runoff from the nearby parking lot, undetained stormwater from Gulfshore Boulevard is dumped into the deadend corner by a stormwater outfall. Not surprisingly, the waters of Doctors Bay violate water quality standards for dissolved oxygen (DO). Monthly DO readings from 1977 through 1989, which was the last year such date were collected, show a trend of water quality deterioration. The site closest to the proposed site violated the DO standard of four parts per million one month each year between 1977 and 1987. In 1988, the same waters violated the DO standard four months, and, in 1989, these waters violated the DO standard eight months. Almost all of the Moorings Bay system, of which Doctor Bay is a part, violated the DO standards for over six months of 1989. Sediments at the proposed site are sandy and silty with shell fragments and high concentrates of polychaetes, or marine worms. Open-water sediments are oxygenated with no presence of hydrogen sulfide. Sediments under existing platforms are not oxygenated and convey the rotten-egg odor of hydrogen sulfide. Microalgae exist on the open-water sediments and shell fragments, but not on those under the platforms. Transparency is much greater in the open water than in the shaded water. Pilings in the area hosted the typical encrusting organisms, such as oysters, barnacles, and periwinkles. As stated in Respondent's inspection report of July 7, 1993, a short- term impact of the proposed project would be the resuspension of nearby sediments from the turbulence of the pile-driving. Under the circumstances, it is unnecessary to address the other short-term concern expressed in the inspection report-the resuspension of heavy metals suspected to exist in the sediments due to the stormwater outfall. As stated in the inspection report, other impacts of the proposed project would include a reduction in transparency. Shading reduces the depth at which photosynthesis takes place, By reducing transparency, the proposed project would likely reduce by at least 10 percent the compensation point, which is the point at which the production of oxygen by plants through photosynthesis is equal to the use of oxygen by plants through respiration by organisms. Also, the proposed structure would interfere with what little water movement exists in the area. Pilings would trap debris, whose decomposition in the water would further reduce DO levels. By letter July 12, 1993, Respondent required Petitioner to submit, among other things, reasonable assurance that the proposed mitigation would reduce the expected impacts of the proposed project and a plan or procedure to protect nearby waters. Petitioner proposes mitigation through the placement of riprap under the proposed structure, which is intended in part to ensure that trapped debris and trash remain above-water. Petitioner also proposes the planting of mangroves over a 140 square foot area, despite the presence of the seawall, and a 400 square foot area atrium in the structure. Aside from an upland relocation of the proposed project, no mitigation can provide the necessary reasonable assurances. Correctly concluding the same thing, Respondent informed Petitioner, by letter dated March 14, 1994, that his application was denied.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's application. ENTERED on December 22, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on December 22, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-12: adopted or adopted in substance. 13-14: rejected as unsupported by the appropriate weight of the evidence. 15-16: rejected as unnecessary. 17 (first sentence): adopted or adopted in substance. 17 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 18-19: rejected as subordinate. 20: adopted or adopted in substance. 21: rejected as subordinate. 22: rejected as subordinate and unsupported by the appropriate weight of the evidence. 23: rejected as subordinate. 24-25: adopted or adopted in substance. 26-27: rejected as unsupported by the appropriate weight of the evidence. 28-30: rejected as unnecessary. 31 (first sentence): rejected as subordinate and irrelevant. 31 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 32-33: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-4 (first sentence): adopted or adopted in substance. 4 (second sentence): rejected as irrelevant. 5-23: adopted or adopted in substance. 24-29: rejected as unnecessary. 30-31: adopted or adopted in substance. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Philip J. McCabe, pro se 8111 Bay Colony Dr. #204 Naples, FL 33963 Douglas M. MacLaughlin Assistant General Counsel 2600 Blair Stone Road, Room 654 Tallahassee, FL 32399-2400 J. Kendrick Tucker Huey Guilday Highpoint Center, Suite 900 106 E. College Ave. Tallahassee, FL 32302
The Issue Did Cristal commit deficient practices as cited in the Notice of Intent to Deny for Renewal Application justifying denial of its application for license renewal? May the Agency impose administrative fines and assess survey fees against Cristal for violations alleged in the Administrative Complaint that are proven? If so, what amount should the fines and fees be?
Findings Of Fact Agency for Health Care Administration The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of the statutes governing ALFs, codified in chapter 429, part I, and 408, part II, Florida Statutes, as well as the related rules in Florida Administrative Code chapters 58A-5 and 59A-35.3 The Agency conducts biennial inspections (commonly referred to as surveys) of ALFs to determine compliance with the regulatory requirements. § 408.811(1)(b), Fla. Stat. The Agency may also perform surveys to investigate complaints. Regardless of the catalyst for a survey, Agency surveyors document any non- compliance found in a Statement of Deficiencies upon completing the survey. Deficiencies are cited by a “tag” that describes the deficiency and is supposed to establish a correction period. The tag is a numeric or alpha-numeric identifier of the regulatory standard found deficient. "A deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency." § 408.811(4), Fla. Stat. A: I do believe that, yes. (Tr. Vol. IV, p. 273). 3 Unless otherwise noted, citations to Florida Statutes are to the 2018 codification, and citations to rules in Florida Administrative Code are to the 2018 versions. The rules were recently transferred to other chapters. There are no material differences between the 2017 and 2018 versions of the statutes and rules. Deficiencies must be categorized as Class I, Class II, Class III, Class IV, or unclassified deficiencies. § 408.813(2), Fla. Stat. In general, the class correlates to the nature and gravity of the deficiency. Class I violations present an imminent danger to residents. Providers must abate or eliminate Class I violations within 24 hours unless the Agency sets a different period. The law requires the Agency to impose a fine for Class I violations, even if they are corrected. § 408.813(2)(a), Fla. Stat. Class II violations directly threaten the health, safety, or security of residents. The Agency must levy a fine for a Class II violation even if it is corrected. § 408.813(2)(b), Fla. Stat. Class III violations indirectly or potentially pose a threat to the health, safety, or security of residents. An Agency citation for a Class III violation must specify the time within which the violation must be corrected. If a provider timely corrects a Class III violation, the Agency may not impose a fine. § 408.813(2)(c), Fla. Stat. Class IV violations do not threaten the health, safety, or security of residents. An Agency citation for a Class IV violation must specify the time within which the violation must be corrected. If a provider timely corrects a Class IV violation, the Agency may not impose a fine. § 408.813(2)(d), Fla. Stat. Cristal Palace Resort PB, LLC Cristal was, at all material times, an ALF in Palm Bay, Florida, operating under the Agency's licensing authority. Cristal's license authorized it to operate a 252-bed facility. Cristal was required to comply with all applicable statutes and rules. The Agency first licensed Cristal, located in a former hotel, to operate as a 252-bed ALF in May 2015. Cristal's license authorizes extended congregate care services, a higher level of services than under a standard ALF license. ALF licenses are valid for two years. Cristal applied to renew its ALF license with the extended congregate care specialty licensure. Nuri Dorra owns Cristal Palace. In his home country, Mr. Dorra is an architect. During a few periods of time, he served as Cristal Palace's administrator. Mr. Dorra has completed the training required to serve in that position. During the time period relevant to this matter, Cristal's census ranged from the mid-forties to the high fifties. Observations on Surveys, Notices of Deficiency, and Hearsay4 This dispute involves charges arising from four surveys conducted by the Agency. Referred to by the last day of the survey period, they are the May 10, 2017, survey; the July 13, 2017, survey; the September 14, 2018, survey; and the December 5, 2018, survey. Several surveyors participated in each survey. The surveyors created 30 documents referred to as Statements of Deficiency or surveyors' notes. (Agency Exs. 124 through154). All of them have two or more Agency employee names on them. The persuasive evidence does not prove who authored which part of most of the documents. Some witnesses testified about specific documents and statements in the documents. But in many cases they did not testify about or identify the specific portions of the documents that they authored. All of the surveyor notes and Statements of Deficiencies are hearsay accounts of what people told surveyors, descriptions of documents that surveyors read, and conditions surveyors observed. Often, the statements in the documents and in the testimony are vague and lacking detail about the circumstances in which the surveyor gathered the information. This undermines credibility and persuasiveness. The undersigned reminded the parties during the hearing of section 120.57(1)(c) and its prohibition against basing findings of fact solely upon hearsay unless it would be admissible over objection in civil actions. (Tr. Vol. I, p 24; v. II, p. 404; vol. IV, p. 661). Hearsay evidence is admissible to supplement or to explain other evidence. It is not sufficient alone to support a finding of fact, unless it would be admissible over objection in a civil action. Wark v. Home Shopping Club, 715 So. 2d 323, 324 (Fla. 2d 4 This part of the Conclusions of Law is placed here to illuminate the reasoning leading to many of the factual findings that follow. Much of Cristal's evidence suffers from the same hearsay issues. DCA 1998); See also Bellsouth Advert. & Publ'g Corp. v. Unemployment Appeals Comm'n, 654 So. 2d 292 (Fla. 5th DCA 1995). Out-of-court statements of testifying witnesses remain hearsay. Most hearsay issues involve an out-of-court statement that was made by one person and subsequently related in court during the testimony of another person. However, an extrajudicial statement made by the same person who is testifying also falls within the definition of hearsay. See Kenneth S. Broun, McCormick on Evidence § 251 (6th ed. 2006). The fact that the opposing party has an opportunity to cross-examine the witness about the prior statement does not remove the statement from the classification of hearsay. Powell v. State, 99 So. 3d 570, 573 (Fla. 1st DCA 2012). The only hearsay exception that might apply to the survey notes and Statements of Deficiencies is the public records exception of section 90.803(8), Florida Statutes. Proving that this exception applies requires establishing a predicate. That includes proving the documents set forth matters observed pursuant to duty imposed by law as to which matters there was a duty to report. For the most part, the survey notes are the joint work product of several surveyors. For most of the notes there is no persuasive evidence proving who authored which part of the documents. Many of the documents also recount and rely upon statements made by either residents or staff of Cristal. A hearsay statement that includes another hearsay statement is admissible only when both statements conform to the requirements of a hearsay exception. Juste v. Dep't of Health & Rehab. Servs., 520 So. 2d 69 (Fla. 1st DCA 1988); Harris v. Game & Fresh Water Fish Comm'n., 495 So. 2d 806 (Fla. 1st DCA 1986). The public records exception does not include factual findings of an investigation. Lee v. Dep't of Health & Rehabilitative Servs., Fla. 698 So. 2d 1194, 1200 (Fla. 1997). In the facts of this case, the AHCA surveyors were conducting an investigation after the first effort to revoke or deny Cristal's license failed. This was no routine re-licensure exercise. The surveys were inextricably bound up with a complaint investigation. For this reason too, the survey notes and deficiency findings do not satisfy the hearsay exception. Also, the predicate for admission under the exception requires proof of who prepared the record and that the person who prepared it personally observed the events described. Kimbrough v. State, 852 So. 2d 335, 336 (Fla. 5th DCA 2003). For many of the surveys and statements of deficiency, due to the documents having multiple authors, the Agency did not establish the required predicate. For these reasons, no findings of fact are based solely upon matters described in the surveyor notes or statements of deficiencies. See Carter v. State, 951 So. 2d 939, 943 (Fla. 4th DCA 2007); Reichenberg v. Davis, 846 So. 2d 1233 (Fla. 5th DCA 2003); Scott v. Dep't of Prof'l Reg., 603 So. 2d 519 (Fla. 1st DCA 1992). Investigative reports, including the Statements of Deficiency and survey notes here, present another evidential problem. Much of the information recited in them is gathered from other sources, not the personal observations of the author. They also often include or depend upon hearsay. Rivera v. Bd. of Trs. of Tampa's Gen. Emp't Ret. Fund, 189 So. 3d 207, 213 (Fla. 2d DCA 2016). Application of the hearsay rule is no mere legal technicality. The hearsay rule is one of the oldest and most effective means of ensuring decisions that determine people's lives and fortunes are based on reliable information. The Fifth District Court of Appeal described the importance of the rule as follows: Rules governing the admissibility of hearsay may cause inconvenience and complication in the presentment of evidence but the essence of the hearsay rule is the requirement that testimonial assertions shall be subjected to the test of cross examination. 5 Wigmore on Evidence, § 1362 (Chadbourne Rev. 1974). As stated by Professor Wigmore, the hearsay rule is "that most characteristic rule of the Anglo-American law of evidence -- a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world's methods of procedure." 5 Wigmore on Evidence, at § 1364. Dollar v. State, 685 So. 2d 901, 903 (Fla. 5th DCA 1996). Survey Ending May 10, 2017 Tag 8 – Residents 9 and 14 – Alleged violations of rule 58A-5.0181(2) and section 429.26(4)-(6): The rule establishes admission criteria for an ALF. Facilities document compliance with the criteria by obtaining and maintaining an accurate and complete report of a health assessment of the resident from a licensed health care provider completed within 60 days before admission or within 30 days of admission. This ensures that residents meet specific admission criteria. The health assessment form for Resident 14 did not document the type of assistance the resident required for bathing. The form did not indicate whether the resident had a communicable disease. The form indicated that the resident required 24-hour nursing or psychiatric care. Rule 5A-5.0181(2) provides that residents requiring 24-hour licensed professional mental health treatment do not qualify for admission to an ALF. The form is dated February 2, 2017, more than 60 days before the survey. For this resident, Cristal violated the rule. Section 429.26(4) through (6) imposes similar requirements. The Agency also proved that Cristal violated the statute. The deficient health assessment document for Resident 14 posed an indirect or potential risk to this resident. It is properly classified as a Class III violation. Agency proposed finding of fact 10 said nothing about Resident 9's health assessment form. This charge is deemed abandoned. Tag 53 – Resident 10 – Alleged violation of rule 58A-5.0185(4)(d): The rule requires that a facility performing clinical laboratory tests for residents, including blood glucose testing, must comply with the federal Clinical Laboratory Improvement Amendments of 1988 (CLIA) and chapter 483, Part I, Florida Statutes. The rule further requires the facility to maintain its federal CLIA certificate at the facility. The requirements do not apply if a third party is assisting the resident perform the test. Agency surveyor Robin Williams observed a nurse, Coralie Prince, contracted to serve residents at Cristal, assisting Resident 10 with testing the resident's blood glucose using an Accu-Chek machine. The Agency depends upon hearsay to prove Cristal did not have a CLIA certificate. The Agency did not prove a violation of rule 58A-5.0185(4)(d) by a preponderance of the evidence. Tag 54 – Resident 9 – Alleged violation of rule 58A-5.0185(5): The Agency's PRO, in finding of fact 12, states that Tag 54 asserts a violation of the health assessment rule. It does not. The Tag 54 violations described in the Notice to Deny involve allegations of failure to maintain medication observation records (MORs). Also, rule 5.0185(5), cited in Agency proposed finding of fact 12 governs medication records. The Agency has not identified record evidence to support the tag. Tag 55 – Resident 8 – Alleged violation of rule 58A-5.0185(6): Agency proposed finding of fact 13 asserts this tag charges a violation of the rule's requirement that residents who possess their medications must keep them in a secure place out of sight of other residents. Tag 55 does not. It charges failure to properly handle discontinued medications. The Agency did not identify evidence proving a violation of rule 58A-5.0185(6). Tag 56 – Resident 10 – Alleged violation of rule 58A-5.0185(7): The rule requires that all centrally stored medications that are separated from their original packaging be labeled with the resident's name and the drug's identifying information. Cristal's medication cart contained three separate sets of medication pens containing insulin. None were labeled with a resident's name or drug identity. The labeling requirement is important. Without the label the residents are at risk for receiving the wrong medication. This violation presented an indirect or potential risk to residents. The Agency properly classified it as a Class III violation. Tag 93 – Alleged violation of rule 58A-5.020(2): The rule establishes food service standards. Rule 58A-5.020(2) requires facilities to date and plan menus at least one week in advance, and post them conspicuously or otherwise make them easily available to residents. The facility may substitute items of comparable nutritional value for menu items. Facilities must keep the menus, with substitutions noted, on file for six months. During the survey period Cristal had a menu posted. But it was not dated. Cristal maintained undated menus it called "rolling menus," labeled Week 1, Week 2, Week 3, and Week 4. These are no substitute for dated menus. Unless the first date that the Week 1 menu was served is known and unless there was never a deviation from the sequence, you could not know what food was offered on any date. The rolling menu explanation, also, does not fit the calendar because not all months have four weeks or begin on the same day. The menu for the noon meal served on May 8, 2017, included a tossed salad. Cristal did not offer residents a tossed salad at that meal. The Agency proved the violation. Findings of Fact 168, 169, and 181 in Cristal I also found Cristal violated this rule. Cristal's violation of the rule was an indirect or potential risk to residents properly classified as a Class III offense. Tag 152 – Physical Plant/Safe Living Environment – Alleged violation of rule 58A-5.023(3): among other things the rule requires a facility to provide "a safe living environment pursuant to section 429.28(1)(a), Florida Statutes." Section 429.28(1)(a) says that residents have a right to "[l]ive in a safe and decent living environment, free from abuse and neglect." During the survey period, some facility carpeting was stained and dirty. Decorative borders on walls were scuffed. Some were missing. A witness testified that one posted elevator permit was expired. The expiration date is unknown. The Agency offered no documents or photographs to show the permit was expired. The outdoor pool contained an unidentified dark black liquid. The pool enclosure displayed a sign stating that the pool was closed for maintenance. The indoor pool, which was not closed off, had unidentified white, bubbly particles floating on top. At least one kitchen air conditioning unit was not working during the days of survey. As kitchens usually are, the kitchen was hot. The Agency witness testified the sweating kitchen staff were a food contamination risk. The Agency did not offer evidence to support that assertion. Health inspectors regularly inspected the kitchen and found it satisfactory. The preponderance of the evidence did not prove what caused the carpet stains or how long they had been there. The preponderance of the evidence did not prove what the black fluid was or what the white particles were. In addition the outdoor pool did not put residents at risk because the pool was closed off for repairs. The evidence proved many parts of Cristal were unsightly and needed repair. The Agency did not offer evidence proving the nature or significance of any risks allegedly created by the conditions. It did not prove the unsightly conditions created risks. For example, although Ms. Crawford's notes (AHCA Ex. 116, depo. Ex. 1) indicated that her assignments included observations of mold, the Agency did not offer evidence proving the substance suspected to be mold was mold. A preponderance of the evidence did not persuasively prove that the conditions were unsafe or indecent. Tag 160 – Alleged violation of rule 58A-5.024(1): Rule 58A-5.024(1)(i) requires facilities to have a grievance procedure readily available. Agency Exhibit 124 is the only evidence identified to prove this violation. It is a completed Statement of Deficiencies and Plan of Correction form. It is hearsay. It states that "based on a record review" the facility did not maintain a grievance procedure. The record provides no information about what the "record review" consisted of or what was reviewed. It also states that "the administrator's designee" said she could not locate the grievance log and procedure. Exhibit 124 is hearsay, as is the statement it reports. Furthermore, Agency Exhibit 69 is Cristal's grievance procedure. Tag 30 – Resident 3 – Alleged violation of rule 58A-5.0182(6) and section 429.28(1)-(2): Agency proposed finding of fact 18 claims that the rule requires a facility to give a resident 45 days' notice of intended discharge. The rule does not impose this requirement. Section 429.28(1)(k) does. It requires 45 days' notice of termination of residency, with exceptions including certification by a doctor that the patient requires "emergency relocation to a facility providing a more skilled level of care … ." The Agency relies upon the testimony of Surveyor Vilma Pellot to prove this charge. She testified that Resident 3 was transferred to the hospital because he had blood in his urine. The testimony does not indicate where the witness obtained that information, specifically whether she observed a record or was told the information. Ms. Pellot testified that a representative of Cristal told the hospital's discharge planner that Cristal could not take Resident 3 back because Cristal was not using its extended congregate care license, which would authorize it to provide the resident the care now needed. The information the Agency relies upon to prove the charge depends upon hearsay. The Agency did not prove the violation alleged in Tag 30 as presented in Agency proposed finding of fact 18. Tag 25 and Count I of the Complaint – Residents 1, 4, 5, and 6 – Alleged violations of rule 58A-5.0182(1) and section 429.26(7): The rule requires the facility to provide care and services, including supervision, appropriate for each resident. It also requires a facility to maintain a written record of significant changes in each resident's health. It further requires an ALF to document communications with residents' health care providers and responsible parties about significant changes in a resident's condition. Section 429.26(7) requires a facility to notify a doctor when a resident shows signs of dementia or cognitive impairment or changes that may contribute to dementia or impairment. Section 429.26(7) imposes a similar obligation. Rule 58A-5.0131(32), quoted below, defines "significant change." "Significant Change" means a sudden or major shift in behavior or mood inconsistent with the resident's diagnosis, or a deterioration in health status such as unplanned weight change, stroke, heart condition, enrollment in hospice, or stage 2, 3 or 4 pressure sore. Ordinary day-to-day fluctuations in functioning and behavior, a short-term illness such as a cold, or the gradual deterioration in the ability to carry out the activities of daily living that accompanies the aging process are not considered significant changes. The Agency alleged that Cristal admitted Resident 4 in June 2016 and that Cristal documented that the resident suffered over 20 falls starting the day after admission through February 10, 2017. Thus the falls could not have been a change in condition. They also do not fit within the rule definition of "significant change." In fact, Count I alleges that on the day of admission, the fall risk score was 22 on a scale of zero to 28. Agency proposed finding of fact 19 addresses the claimed violation. It argues Cristal's records lack documents showing any effort to minimize the falls. If proven, the absence of the documentation would not violate the supervision requirements of rule 58A-5.0182(1) or section 429.26(7), even though it may violate other rule and statutory requirements not charged. The Agency did not prove the charged rule and statute violations by a preponderance of the evidence. It did not offer the records into evidence. The cited rule does not require intervention as the Agency argues. The Agency also did not prove the resident showed signs of cognitive impairment or changes that may contribute to dementia or impairment. Tag 25 also alleged that Resident 6 was prescribed an inhaler for use at 9:00 a.m. and that on May 8, 2017, Cristal staff provided the inhaler at 11:30 a.m. The resident was receiving oxygen at the time. The Agency did not prove the charge by non-hearsay evidence. Its proof depends upon a hearsay account of what the resident said. Also the Agency did not prove by a preponderance of the evidence that the inhaler was prescribed for use at 9:00 a.m. Agency proposed finding of fact 19 refers to charged violations of the same rule and statute related to Residents 1 and 5. But it does not address the charges. It does not cite to evidence to support them. Charges related to Residents 1 and 5 are deemed abandoned. Survey Ending July 13, 2017 Tag 8 and Count XV – Residents 4, 7, 11, 19, 21, 22, 24, and 32 – Alleged violations of Rule 58A-5.0181(2) and section 429.26(4)-(6): The rule establishes admission criteria for an ALF. Facilities must document compliance with the criteria by obtaining and maintaining an accurate and complete report on an Agency form of documented health assessment of the resident by a licensed health care provider, completed either 60 days before admission, or within 30 days after admission. This ensures that residents meet specific admission criteria. Rule 58A-5.0181(2)(c) requires a facility to obtain any required information not contained in the assessment within 30 days after admission. Thus proving the date of admission is important to proving violation of the rule. The health assessment for Resident 24 was dated March 30, 2016. The Agency maintains that the resident was admitted to Cristal in July of 2017. The only evidence of the admission date was the testimony of Lorienda Crawford that she "identified this resident was admitted into the facility in July of 2017 … ." There is no document to corroborate this bare assertion or any information, such as an explanation of how Ms. Crawford determined the admission month that would make the statement persuasive. The Agency did not prove Resident 24's admission date by a preponderance of the evidence. Consequently it did not prove the charges in Tag 8 and Count XV for Resident 24. The health assessment form for Resident 22 did not provide the required medical certification identifying the professional who conducted the assessment. The Agency proved the violation alleged by Tag 8 and Count XV for Resident 22. Section 429.26(4) requires a facility to maintain the assessment as a permanent part of each resident's record. Although Cristal had a partially completed assessment for Resident 7, the clear and convincing evidence proved that Cristal did not maintain it as a permanent part of the resident's record. The Agency proved the charges of Tag 8 and Count XV for Resident 7. The violation posed an indirect or potential risk to the resident and is properly classified as a Class III violation. The assessment form for Resident 32 did not contain a response to the section asking if the individual needed help taking medications. There is no proof that Cristal obtained this required information. But the form is dated June 13, 2017. The last day of the survey was 30 days after. In addition the Agency did not prove Resident 32's date of admission. The Agency, therefore, did not prove the charges described in Tag 8 and Count XV for Resident 32. The health assessment for Resident 4 indicated a diagnosis of dementia and described the resident's cognitive or behavioral status as aware with confusion. Yet the form did not contain a response in the area asking if the resident required 24-hour nursing or psychiatric care. This is a deficiency the rule required Cristal to correct within 30 days after admission. The form is dated January 8, 2017. The July 2017 survey dates are well after the 30 days allotted the facility to obtain missing information, even assuming the form was provided at the latest authorized date. The Agency proved the charges of Tag 8 and Count XV for Resident 4. The absence of this information created an indirect or potential risk to residents. The Agency properly classified the offense as a Class III violation. Cristal produced a health assessment form for Resident 7. It was not with the resident's records as required. The form for Resident 7 also did not provide the required medical certification identifying the professional who conducted the assessment. It is also undated. The Agency proved Cristal violated the requirement to maintain the form with Resident 7's records. Although Agency proposed finding of fact 20 asserts Tag 8 and Count XV alleged current health assessment violations for Residents 11, 19, and 21, the Agency does not identify evidence supporting the assertion in its proposed finding of fact 20. The violations related to these residents are deemed abandoned. Tag 53 – Residents 6 and 23 – Alleged violations of rule 58A-5.0185(4): The rule requires a facility to employ or contract with an appropriately licensed individual to be available to administer medication. The Agency's proof relies upon hearsay. It did not prove the violation as to either resident. 56. Tag 54 – Residents 3, 6, 8, 9, 12, 14, 16, 24, 25, 26, 27, and 28 – Alleged violations of rule 58A-5.0185(5): The rule requires ALFs to maintain up-to-date MORs for all residents receiving assistance with medication. Several residents' MORs did not document compliance with medication administration directions. The MORs for Residents 24, 25, 26, 27, and 28 stated that administration of medication was to be observed. The MORs did not document observation of the administration of several medications on several days. For Resident 16, the MOR did not indicate whether Donepezil was administered on the 11th of the month as prescribed. For Resident 9, the MOR did not indicate whether Lisinopril was administered on the 9th and l0th of the month. For Resident 14, the MOR indicated that the medication Lorazepam was administered three times. But only one dose was absent from the medication container. Resident 3's MOR was blank for two doses of potassium. Resident 8's MOR was blank for one dose of aspirin. Resident 12's medication record was blank for nine doses of Levothyroxine. Cristal asserted the missing documentation was due to Cristal's transition to an electronic record system. The facility's obligation to maintain records and the resident's need for accurate records is not abated by a change in recordkeeping systems. These multiple violations were indirect or potential risks to residents. The Agency properly classified them as Class III violations. Tag 55 and Count XVII – Residents 33, 36, 37, 38, and 39 – Alleged violations of rule 58A-5.0185(6): The rule imposes medication storage and disposal requirements. It requires that a facility give unused medications to residents at discharge unless, after receiving notice, the resident abandons the medications by inaction. The Agency asserts that, when Cristal changed pharmacies, Cristal allowed medications of the discharged Residents 33, 36, 37, 38, and 39, to be removed and donated to a "third-party charity." The Agency further asserts that Cristal did not obtain resident consent to dispose of the medications. To prove the rule-required elements, the Agency needed to prove that the residents were discharged and that the medications were not offered to them. The Agency evidence is a mélange of "observation of medications, record review, and interview." The Agency's evidence depends upon hearsay and provides insufficient detail to make the vague descriptions of "record review" and "interview" persuasive. The "interview" references mean that unknown parts of the factual statements come from hearsay. The credible persuasive evidence is not sufficient to prove the Agency's claims by a preponderance of the evidence. Tag 56 and Count XIII – Resident 19 – Alleged violation of rule 58A-5.0185(7): Rule 58A-5.0185(7) governs medication labeling and orders. Rule 58A-5.0185(7)(c) states: If the directions for [medication] use are "as needed" or "as directed," the health care provider must be contacted and requested to provide revised instructions. For an "as needed" prescription, the circumstances under which it would be appropriate for the resident to request the medication and any limitations must be specified; for example, "as needed for pain, not to exceed 4 tablets per day." The revised instructions, including the date they were obtained from the health care provider and the signature of the staff who obtained them, must be noted in the medication record, or a revised label must be obtained from the pharmacist. The Agency maintains that Resident 19 had several "as needed" prescriptions which did not specify the circumstances in which administration of the medications would be appropriate and that Cristal did not obtain revised instructions to correct the deficiency. The evidence offered to support this charge is general testimony, without detail, such as identification of what records the witness reviewed. A representative example follows. "That Resident No. 19 has several medications of the prescription already [sic] as p.r.n., as needed." Asked in a broad and general way if she was able to find "any orders regarding the as-needed medication," the witness replied "I did not." (Tr. Vol. III, p. 497). The Agency did not prove the charged violation by a preponderance of the evidence. Tag 93 – Food Service – Alleged violation of rule 58A-5.020(2): The rule establishes food service standards. Rule 58A-5.020(2), among other things, requires facilities to date and plan menus at least one week in advance. It also requires facilities to post the menus conspicuously or otherwise make them easily available to residents. During the survey period a menu was posted. It was not dated. In addition, a meal served one day of the survey was not the meal described in the posted menu. This is the third time Cristal violated the food service rule, in the same way. The Agency proved a violation of the rule during the survey period ending May 10, 2017, (Finding of Fact 33) and in Cristal I. The violation created an indirect or potential risk to residents and was properly classified as a Class III violation. The refusal to comply with this simple requirement also manifests a repeated disregard for the rules governing operation of an ALF. Tag 152 – Physical Plant/Safe Living Environment – Alleged violation of rule 58A-5.023(3): Among other things, the rule requires a facility to provide "a safe living environment pursuant to section 429.28(1)(a), Florida Statutes." Section 429.28(1)(a) says that residents have a right to "[l]ive in a safe and decent living environment, free from abuse and neglect." At the time of the July 2017 survey, sand filled the pool that had black fluid in it in May. Many of the conditions noted during the May survey remained, including exposed pipes with unidentified brown material on them and broken ducting. The photographed areas of Cristal look poorly maintained and unattractive. But, as with the similar conditions from the May survey, there is no persuasive evidence identifying what substances caused the brown spots on the pipes, what the pipes convey, or generally how the conditions observed pose a threat to resident safety or were, as the Agency surveyor stated, "hazardous to their health." The surveyor also went to the crux of the failure of proof for this tag saying, "We don't know what this black stuff was and all that… ." Expert testimony on this issue may have made a difference in the outcome. The same is true about testimony stating a lobby bathroom was leaking. The witness did not testify to observations establishing that the bathroom was the leak's source. The photograph provided does not support a finding that the leak came from the bathroom. A photograph does show that Cristal placed warning signs at the affected area. There is no evidence proving how long the condition had existed or if there had been a reasonable period of time to repair the problem. The Agency did not prove the claims of Tag 152 by a preponderance of the evidence. Tag 160 and Count XXII – Facility Records – Alleged violation of rule 58A- 5.024(1): Rule 58A-5.024(1)(b) requires an ALF to maintain a readily available, up-to- date admission and discharge log. The log must list, among other things, a resident's date of discharge, reason for discharge, and location to which the resident was discharged. The Agency claimed Cristal's log did not list reasons for discharge or the locations to which residents were discharged for several residents. The log, Agency Exhibit 41, is illegible. The only other evidence offered was a general statement that "[t]he facility did not indicate on the log the reason for discharge and the place for discharge for several residents." (Tr. Vol. II, p. 393). The Agency's evidence was not persuasive. The Agency did not prove this tag and count by a preponderance of the evidence. Tag 30 – Residents 14, 24, 26, 27, and 28 – Rule 58A-5.0182(6) and section 429.28(1)-(2): Rule 58A-5.0182(6)(e) requires facilities to compensate residents for work performed for the facility other than work performed in their own living areas and provided for in the resident's contract. The rule requires compensation "in compliance with state and federal wage laws." Section 429.28 is part of the Resident Bill of Rights. It does not contain a prohibition or requirement about residents performing work for a facility. Agency proposed finding of fact 28 asserts Cristal violated the rule by failing to compensate Resident 14 for work performed as a facility employee. It cites only Agency Exhibit 151 to support this charge. The exhibit contains only hearsay reports of Resident 14 volunteering to work at the front desk two hours a day for $20.00 per day. In addition, the hearsay does not establish that the resident was not paid or that $10.00 per hour did not comply with state and federal wage laws. Proposed finding of fact 28 also lists Residents 24, 26, 27, and 28. But it makes no specific claims about them and cites no evidence mentioning them. Charges related to them are deemed abandoned. The Agency did not prove Tag 30. Tag 162 – Residents 7, 18, 24, 27, and 31 – Alleged violation of rule 58A- 5.024(3): Rule 58A-5.024(3) imposes a number of recordkeeping requirements upon ALFs. Facilities must retain resident records for two years after a resident's departure, except for contracts, which an ALF must retain for five years. Fla. Admin. Code R. 58A-5.024(3)(q). The rule requirement that the Agency argues Cristal violated is the requirement to maintain a weight record, initiated on admission, for each resident. The Agency and its witnesses incorrectly state that the rule requires facilities to record resident weights every six months. That requirement applies only for residents receiving assistance with daily living activities. Fla. Admin. Code R. 58A-5.024(3)(f). When the surveyors asked Cristal to provide the weight records, staff presented a binder with tabs bearing people's names. But the pages were empty. There were no weight records for Resident 24, even in the resident's individual file. Not recording weights creates a risk that material weight gains or losses will go unnoticed and therefore unaddressed. Cristal's failure to comply with the rule was an indirect or potential risk to residents. The Agency properly classified the failure as a Class III violation. The records for Resident 3 contained only an order for an ultrasound and the test results. They did not include the required health assessment form, demographic information (such as the resident's birth date), MORs, or physician records. Cristal's failure to comply with the rule created an indirect or potential risk to the resident. The Agency properly classified the violation as a Class III violation. Agency finding of fact 29 refers to a violation in this tag involving Resident 27. It does not otherwise identify a violation. Consequently this charge is deemed abandoned. Agency finding of fact 29 refers to a violation in this tag involving Resident 18. It does not otherwise identify a violation. Consequently this charge is deemed abandoned. The Agency contends that Cristal did not maintain accurate records of the medication orders for Resident 7. On July 10, 2017, Resident 7 had a bag of medications in her room. Her records did not contain a health assessment form or orders indicating whether she required assistance or observation administering medication. The health assessment form was not signed by a licensed professional. On July 12, 2017, staff produced an order dated that day stating the patient could self-administer medications. This violation, although a Class III violation, was cured for that patient. Tag 25 – Residents 8, 9, 13, 16, 21, 24, 30, 31, and 32 – Alleged violations of rule 58A-5.0182 and section 429.26(7): Agency proposed finding of fact 30 addresses these alleged violations. Rule 58A-5.0182(1) sets standards ALF supervision of residents. Rule 58A-5.0182(1)(c) requires facilities to maintain a general awareness of a resident's whereabouts. Section 429.26(7) requires a facility to "notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment." The Agency alleged, but did not prove, failure of Cristal to be aware of Resident 31 leaving to go camping or on an errand. The Agency did not prove a violation involving Resident 31 by a preponderance of the evidence. The Agency described Resident 32 suffered a chemical burn on her lower body. The Agency relied upon hearsay to prove claims about Cristal's care for this resident after the burn. It did not assert a failure of supervision. As important for this proceeding, the rule and statute the Agency claims Cristal violated, do not address quality of medical care. The Agency did not prove the charged violation for Resident 32. Hearsay corroborated by a party admission proved that at some point in Resident 30's stay at Cristal, the facility sent her to a hospital because of complaints of pain and numbness. A complaint requiring medical attention from a hospital is a significant change in condition. Cristal did not notify the resident's health care provider of this development. The records corroborate hearsay from the manager at that time reporting she did not notify the resident's health care provider, as required by rule 58A-5.0182(1)(d). Failure to advise a resident's health care provider of a condition serious enough to require treatment at a hospital violates rule 58A- 5.0182(1)(d). The violation presents a direct risk to the resident. The Agency properly classified the violation as Class II. Although the Agency listed Residents 8, 9, 13, 16, 21, and 24 in proposed finding of fact 30, it does not address care provided or cite evidence purportedly proving any violations involving their care. Those alleged violations are deemed abandoned. Tag 81 – Staff Training – Alleged violation of rule 58A-5.0191(2): Rule 58A.0191(2)(b)3 says that within 30 days of employment, direct care staff must receive in-service training that covers facility emergency procedures. Agency proposed finding of fact 31 alleges that a staff member began working at Cristal on May 8, 2017, and that at the time of the survey, Cristal had employed the staff member for more than 30 days. The proposed finding does not identify the staff member. Review of the exhibit cited indicates that this proposed finding refers to Staff D. The proposed finding further alleges that Staff D had not received the required emergency procedure training within 30 days of employment. The Agency's sole evidence about Staff D's hire date was this testimony: "So for this staff, in review of this staff's record, they were hired on May 8, 2017." Among other things, the testimony did not identify the document the witness relied upon or provide grounds to determine that it is reliable. The Agency offered no documents to support the charge. The evidence offered to prove Staff D did not receive the required training was equally sparse. The Agency did not prove the charge by a preponderance of the evidence. Rule 58A-5.0191(2)(f) requires that within 30 days of employment direct care staff must receive in-service training that covers resident elopement and response policies and procedures. As with the inadequate attempts to prove deficient emergency procedure training, the Agency also failed to present evidence satisfying its burden of proof for this charge. Survey Ending September 14, 2018 Tag 8 and Count XV – Residents 4, 13, 15, 23, 33, and 34 – Alleged violations of rule 58A-5.0181(2): The rule establishes admission criteria for an ALF. Facilities document compliance with the criteria by obtaining and maintaining an accurate and complete resident health assessment by a licensed health provider documented on an Agency form completed either 60 days before admission, or within 30 days after admission. This ensures that residents meet specific admission criteria. The health assessment form for Resident 13 did not include the date on which the health care provider conducted the examination. This makes it impossible to determine if the provider conducted the assessment during the required time period. Cristal did not contact the provider to obtain the missing information. This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. The most recent health assessment for Resident 15 was dated June 4, 2018. It provided conflicting information that the resident required both the administration of medications and assistance with self-administration of medications. Despite having over 90 days to obtain clarification of these conflicting instructions, Cristal had not done so. Thus the assessment did not comply with rule 58A-5.0181(2)(a)5. This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. Agency proposed finding of fact 33 refers to violations for Residents 4, 23, 33, and 34. However, it provides no information about the alleged violations and does not cite to evidence that might indicate violations for those residents. Therefore, those claims are deemed abandoned. Tag 54 – Residents 3, 12, 14, 18, 33, and 34 – Alleged violations of rule 58A- 5.0185(5): Rule 58A-5.0185(5)(b) requires ALFs to "maintain a daily medication observation record (MOR) for each resident who receives assistance with self- administration of medications or medication administration." It further lists required information for each MOR. Resident 12's June 16, 2018, MOR for Travatan ZO, which was to be administered nightly, did not show that the medication was administered on June 16, 2018. The MOR also did not show that Risperidone was administered on July 1, 2018, when the MOR indicated that it should be administered twice a day. The MOR did not record administration of Vitamin B1 on July 29, 2018, although it was to be administered daily. These deficiencies created an indirect potential risk to the resident, which is properly classified as a Class III violation. The MOR for Resident 18 on July 23, 2018, did not document administration of 21 different medications or provide an explanation why the medications were not administered, if they were not. This created an indirect or potential risk to the resident. It is properly classified as a Class III violation. The MOR for Resident 3 for August 7 and 16, 2018, indicated that multiple medications were withheld pursuant to physician's order. Cristal did not produce documentation of the physician's orders to withhold. Rule 58A-5.0185(5) does not, however, require maintaining the orders as part of the MOR. The Agency did not prove the alleged Tag 54 violation involving Resident 3 by a preponderance of the evidence. Agency proposed finding of fact 34 did not identify any support for violations related to MORs for Residents 14, 33, and 34. These claims are deemed abandoned. Tag 55 and Count XVII – Residents 18, 13, and 17 – Alleged violation of rule 58A-5.0185(6): Rule 58A-5.0185(6)1 requires a facility to return centrally stored medications of those residents for whom "[t]he facility administers the medication" and in other circumstances not involved here. The rule also requires an ALF to store or return discontinued medications to the resident, in case the medication is re- prescribed. Tag 55 and Count XVII assert that Cristal improperly returned medications of Resident 18 to a former pharmacy when Cristal changed pharmacies. The Agency's evidence relies upon hearsay and is not persuasive. The Agency did not prove its assertions about returning medications to the former pharmacy by a preponderance of the evidence. Resident 13 kept Pepto-Bismol, hydrogen peroxide, and an over-the-counter foot medication unsecured in the resident's bedroom. Resident 17 kept aspirin, ibuprofen, and arnica cream unsecured in the resident's bedroom. The preponderance of the evidence does not prove that the facility administered those medications. Therefore the Agency did not prove a violation of the requirement in rule 58A- 5.0185(6)1 for central storage of medications administered by the facility. Tag 56 and Count XIII – Resident 19 – Alleged violation of rule 58A- 5.0185(7): Rule 58A-5.0185(7)(c) requires a facility to ask a provider who prescribes a medication "as needed" to clarify the prescription by describing the circumstances under which administering the medication is appropriate. The physician's orders for Resident 19 included a prescription originating on June 4, 2017, for Senokot Suboxone, as needed. The orders did not explain when administering the medication was appropriate. Cristal did not obtain a physician's order clarifying when the medication should be provided. Resident 19 had diagnoses of dementia and altered mental status. The unlicensed staff providing assistance with self-administration of medications did not have the training or expertise to determine when a cognitively impaired resident needed a medication. The failure to obtain clarification created an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. Tag 152 and Count XIX – Physical Plant/Safe Living Environment – Alleged violations of rule 58A-5.023(3): Rule 58A-5.023(3)(a)1 says a facility must provide a safe living environment. Rule 58A-5.023(3)(a)2 states that all ALFs "[m]ust be maintained free of hazards… ." Rule 58A-5.023(3)(a)3 states that all ALFs "[m]ust ensure that all existing architectural, mechanical, electrical and structural systems and appurtenances are maintained in good working order." The Agency, in proposed finding of fact 37, incorrectly describes the rule as requiring a "decent living environment." Photographs and testimony about personal observations of Agency personnel on the days of the survey establish that Cristal was in run-down condition. Carpeting in the common areas, was dirty. Something had stained the carpet in front of a resident's door and in some residents' rooms. Small areas of sheet rock were broken or worn away. Some walls were dirty and stained near the baseboards. A baseboard was cracked and separated from the wall. The baseboard's paint was chipped. Some baseboards were missing. Some tiles in an elevator were cracked. The lobby ceiling had water leaks. Buckets were placed in the lobby to catch the drips. A black substance coated some of the ceiling vents and some carpets. Some ceiling tiles were missing. Cristal did not have an operational emergency generator. The evidence did not prove how long the conditions had existed. The evidence did not show what the stains and dark substances were or what caused them. The Agency did not offer testimony from mechanical experts, structural experts, mold remediation experts, or other experts who could have established the cause of the conditions described above or the nature of the risks, if any, they presented to residents. The Agency failed to offer persuasive evidence that the unsightly conditions observed and photographed at Cristal were unsafe or hazardous. It also did not offer persuasive evidence that Cristal's architectural, mechanical, electrical, or structural systems were not in good working order. The Agency did not prove the charged violations by a preponderance of the evidence. Tag 160 and Count XXII – Residents 22, 24, and 32 – Alleged violations of rule 58A-5.024(1): Rule 58A-5.024(1)(b) requires a facility to maintain an up-to-date admission and discharge log. At the time of the survey, Residents 22, 24, and 32 had been discharged. Cristal's log did not list these three residents as discharged. This finding relies upon a report of what the administrator said. Section 90.803(18)(a) permits consideration of the testimony as a party admission. This rule violation created an indirect or potential risk to the residents. It is properly classified as a Class III violation. Rule 58A-5.024(1)(d) requires a facility to have the "[t]he facility's emergency management plan, with documentation of review and approval by the county emergency management agency, as described in Rule 58A-5.026 F.A.C." readily available. The only evidence the Agency identifies (in proposed finding of fact 38) as proving a violation of this requirement is a surveyor's testimony that, "I identified that they do not have a copy of their emergency plan that was approved by the county or a satisfactory fire inspection." (Tr. vol. I, p. 130). The witness did not say how she "identified" the absence of the plan (or approval of a plan) or what files, if any, she reviewed. It is impossible to divine from the witness' single sentence if she "identified" the absence of the plan from statements of other people. Reliance upon hearsay statements by all the Agency witnesses was a common failing. The minimal and uninformative testimony is not persuasive. It does not suffice to prove by a preponderance of the evidence that Cristal did not maintain an approved emergency management plan. Rule 58A-5.024(1)(k) requires a facility to have readily available "[a]ll fire safety inspection reports issued by the local authority or the State Fire Marshal pursuant to section 429.41 F.S., and Rule Chapter 69A-40, F.A.C., issued within the last two years." The only evidence offered to support this charge is the vague and unpersuasive sentence quoted above. The Agency did not prove by a preponderance of the evidence that Cristal failed to maintain the required fire safety inspection reports. In addition, on September 30, 2018, the City of Palm Bay Fire Marshal's Office found Cristal "in compliance with all applicable Florida State Fire Codes." (C. Ex. 7). Rule 58A-5.024(1)(i) requires facilities to maintain "[a]ll sanitation inspection reports issued by the county health department pursuant to Section 381.031, F.S. and Chapter 64E-12, F.A.C, issued within the last two years." The Agency relies, in proposed finding of fact 38, upon the surveyor testimony discussed above. The testimony is not persuasive and did not prove the claimed violation by a preponderance of the evidence. It does not even refer to sanitation inspections. Tag 162 and Count XI – Residents 2, 23, 33, and 34 – Alleged violations of rule 58A-5.024(3): Rule 58A-5.024(3)(g) requires "facilities that will have unlicensed staff assisting the resident with the self-administration of medication, [to maintain] a copy of the written informed consent described in Rule 58A-5.0181, F.A.C., if such consent is not included in the resident's contract." The signed informed consent form for Resident 2 provided the following opportunity to record the resident's consent: "In our facility, staff assisting residents with self-administration: will or, will not be overseen by a licensed nurse." Neither "will" nor "will not" is selected. However, the Agency did not place the resident's contract in evidence. So the record does not establish the condition precedent to requiring a separate consent form. The Agency's attempted proof of this issue suffered the same failing in Cristal I, as stated in paragraph 299 of the Recommended Order. Contrary to Agency proposed finding of fact 39, Count XI does not allege a violation of this rule. Agency proposed finding of fact 39, addressing this charge, lists Residents 23, 33, and 34, as people whose records also lacked the required consent. The proposed finding does not identify evidence supporting the charge. The Agency did not prove a violation related to these residents. Tag 167 – Residents 2 and 18 – Alleged violation of rule 58A-5.205 and section 429.24: Among other things, the rule requires facilities to execute contracts with residents. The rule requires a number of provisions for the contracts. One is, "[a] provision that residents must be assessed upon admission and every 3 years thereafter, or after a significant change … ." Hearsay testimony of Ms. Williams indicated that Resident 18's contract did not contain this provision. The records for Resident 18 did not include a supplement to the contract with this provision. The fact that Cristal subsequently obtained a supplement to the contract with the provision (C. Exhibit 14, p. 210) corroborates Ms. Williams' testimony. The supplement is dated November 9, 2018, more than 30 days after the Agency advised Cristal of the deficiency. Clear and convincing evidence proved Cristal violated rule 58A-5.205. The Agency properly classified this as a Class IV violation. The Agency also claims in proposed finding of fact 40 that the contract for Resident 2 did not contain the required assessment provision. The Agency did not prove this claim, as described in proposed finding of fact 40. It cites to Agency Exhibit 126. The exhibit does not mention Resident 2's contract. The Agency also cites to pages 130 through 220 of Volume I of the transcript and all of Volume II to support its claim. The cited testimony does not establish by a preponderance of the evidence that Resident 2's contract did not have the required provision. The Agency did not prove the charged violation as to Resident 2. Tag 25 and Count X – Residents 13 and 15 – Alleged violations of Rule 58A- 5.0182(1) and section 429.26(7): Agency proposed finding of fact 41 addresses the alleged violations. Rule 58A-5.0182(1) establishes supervision requirements for the care of ALF residents. Rule 58A-5.0182(1)(d) requires a facility to contact a resident's health care provider or other appropriate party if a resident exhibits a "significant change." Rule 58A-5.0182(1)(f) requires a facility to maintain a written record of any significant changes. The Agency maintains in proposed finding of fact 41 that Resident 13 declined 11 medications and that this was a significant change that should have been reported. Resident 2's MOR reflected that Resident 2 refused assistance with administration of 13 medications on September 8, 2018, and one medication on September 10, 2018. The Agency did not present evidence proving how refusing assistance amounted to a significant change in the resident's condition, as defined in rule 58A-5.0131(32). In addition, it offered only hearsay to prove that Cristal did not inform the resident's health care provider. And nothing indicates that informing the health care provider is recorded on the MOR. The Agency did not prove the charged violation. The Agency maintains that Resident 15's MORs show the resident declined numerous medications in July and September. The evidence did not show this. The resident's MORs document the resident declining assistance in July and September of 2018, not declining medication. The Agency did not prove that declining assistance with medications amounted to a significant change in the resident's condition, as defined by rule. In addition it offered only hearsay to prove that Cristal did not inform the resident's health care provider. Finally, there is no place on the MOR to indicate that a facility informed a resident's health care provider or other appropriate person about a significant change. So the absence of a notation on the MOR does not lead to a conclusion that the facility did not communicate with the health care provider. The Agency did not prove the violation involving Resident 15. Section 429.26(7) imposes obligations to report signs of dementia, signs of cognitive impairment, or a change in a resident's condition to a physician. The Agency did not prove a violation of this statute involving Resident 15 by a preponderance of the evidence. Agency proposed finding of fact 41 discusses application of a topical gel to Resident 15. The resident had a prescription for a topical gel, Diclofenac Sodium, one or two grams to the affected area. A surveyor observed a staff member squeezing a portion of gel onto the staff member's index finger instead of measuring the gel with the pharmacy-provided measuring tape. The surveyor had not heard the resident request any specific amount of the gel. That does not mean the resident had not requested it before the surveyor came within hearing distance. In addition, improper measurement of the medication would not violate section 429.26(7) or rule 58A- 5.0182(1), although it may violate other rules or statutes not charged. Tag 78 – Staffing Standards/Staff B – Alleged violation of rule 58A-5.019(2): The rule establishes requirements for ALF staff. Rule 58A-5.019(2)(a) requires staff to provide, within 30 days of beginning employment, a health care provider's written statement documenting "that the individual does not have any signs or symptoms of communicable disease." Cristal produced a completed form stating that Staff B satisfied the requirement. The Agency's evidence offered to prove that Cristal had not fulfilled its obligation to maintain a health care provider's statement for Staff B was the testimony below and a nearly identical statement in the surveyor's notes on the Statement of Deficiencies. Staff B, when I reviewed her record, she had a statement in the record, and the space for the healthcare provider's signature and name was not legible. Could not determine who completed the form. There were no credentials listed, like "M.D." or "advanced registered nurse." We could not determine who completed the form because the signature was not legible. (Tr. Vol. II, p. 403). The Agency could have entered the form into evidence. But it did not. The absence of the form makes it impossible to determine the accuracy of the witness' characterization or to be confident that the credentials were not provided on the form, rather than also being "illegible." The rule does not impose a legibility requirement on a doctor's signature. These failings result in a failure to prove the charge by a preponderance of the evidence. Tag 93 and Count XXI – Food service standards – Alleged violation of rule 58A-5.020(2): The rule requires a facility to maintain a three day supply of nonperishable food. Fla. Admin. Code R. 58A-5.020(2)(h). It also imposes a requirement to have an emergency supply of water. The rule says: "Water sufficient for drinking and food preparation must also be stored, or the facility must have a plan for obtaining water in an emergency, with the plan coordinated with and reviewed by the local disaster preparedness authority." Cristal's food manager identified an uncovered 100 gallon barrel as containing the facility's sole emergency water supply. This was the only visible supply of emergency water. The barrel contained a dark substance with slime and white particles floating on top. The description of the water and accompanying photographs convincingly establish that the fluid was not potable water. Cristal's administrator at the time also testified at hearing that Cristal did not comply with the requirement for an emergency supply of water. The Agency proved the charged violation by clear and convincing evidence. Cristal's violation was a direct risk to residents. The Agency properly classified it as a Class II violation. Tag 90 and Count V – Staff Training – Alleged violations of rule 58A- 5.0191(11) - (12): Rule 58A-5.0191(11)(a) requires that all facility employees receive at least one hour of training in the facility's Do Not Resuscitate Orders (DNRO) procedures within 60 days of the rule taking effect, if employed on that date, or within 30 days of hiring if hired while the rule was in effect. Rule 58A-5.0191(11)(b) requires newly hired employees to receive the same one hour of DNRO training within 30 days after beginning employment. Rule 58A-5.0191(12) requires a facility to maintain documentation of the training. Agency proposed finding of fact 44 addresses the charged violations of this rule. Ms. Gulian-Andrews testified about the alleged deficiencies involving Staff D. The whole of her relevant testimony was her response: "No, there was not," to the question, "And was there any documentation regarding the facility's specific training?" (Tr. Vol. I, p. 118). There is no testimony about what files she reviewed or how she determined which files to review. Also her memory was not clear enough for her to be certain about other training documents. "Q: Now, was there an online training certificate? A. I think there was, but it does not say in this [referring to surveyor notes]." This is not persuasive evidence establishing by a preponderance of the evidence that Staff D did not have the required training. The Agency relies on the deposition testimony of surveyor Lorienda Crawford (Ex. 116, pp. 4 - 13) to support its claim that Staff A did not have the required certificate. The observations on the evidence about Staff D apply here. The Agency did not prove the charged violation involving Staff A's training. Tag 81 and Count VI – In-service Training – Alleged violations of rule 58A- 5.0191(2) and (3): Rule 58A-5.0191(2) imposes a number of in-service training requirements for staff who provide direct care to residents. Also, rule 58A- 5.024(2)(a)1 requires ALFs to maintain documentation of compliance with all training and continuing education requirements in each staff member’s personnel records. Training in the facility's emergency procedures is one of the training requirements. Training in the facility's elopement policies and procedures is another. Agency proposed finding of fact 45 maintains that Cristal's records did not document that Staff A, B, and C received training in facility-specific emergency procedures and elopement policies. The testimony relied upon suffers from a lack of specificity, details, and information about how the witnesses searched for the required documents leaving the testimony unpersuasive. Also the Agency did not prove that the employees provided direct care. This failure to prove an element of the violation results in the Agency not proving the charged violation. (Paragraph 61 of the Recommended Order in Cristal I highlights the significance of the distinction between requirements imposed upon direct care staff and others.) Rule 58A-5.091(3) requires HIV/AIDS training for all employees. Agency proposed finding of fact 45 did not identify any evidence relevant to a violation of this rule. The agency failed to prove the charged violations by a preponderance of the evidence. Tag 200 and Count XXVI – Environmental Emergency Control Plan – Alleged violation of rule 58A-5.036: Rule 58A-5.036(1) requires an ALF to prepare a detailed plan "to address emergency environmental control in the event of the loss of primary electrical power … ." The requirements for the plan include "acquisition of a sufficient alternate power source such as a generator(s), maintained at the assisted living facility, to ensure that the facility" can maintain ambient air temperatures "at or below 81 degrees Fahrenheit for a minimum of ninety-six (96) hours in the event of the loss of primary electrical power." Fla. Admin. Code R. 58A-5.036(1)(a). The rule also requires a facility to submit its plan to the local emergency management agency for review and approval. Fla. Admin. Code R. 58A-5.036(2). An ALF must maintain a readily available copy of the plan. Rule 58A-5.036(4) requires facilities to implement the plan no later than June 1, 2018. The rule authorizes the Agency to extend an ALF's deadline to January 1, 2019. It also acknowledges a facility's right to seek a waiver or variance under section 120.542, Florida Statutes. To obtain an extension, a facility must show delays caused by issues beyond the facility's control, such as zoning approval processes and construction delays. At the time of the September 2018 survey, Cristal did not have an approved emergency plan. It did not produce a plan for resident care in the event of power loss. Brevard County's Emergency Management office did not approve Cristal's emergency power plan until December 20, 2018. Cristal did not have an emergency generator. It did not have a lease for a generator. The closest Cristal came to documenting fulfillment of the generator requirement was providing an unsigned copy of a rental application. On October 7, 2018, Cristal entered into a lease for a generator. However, by letter dated July 31, 2018, the Agency advised Cristal, "The Agency for Health Care Administration (Agency) has received your request for an extension of time up to January 1, 2019, to come into full compliance with Rule 58A- 5.036, Florida Administrative Code (F.A.C.). Your request has been reviewed and meets the criteria as indicated in the rule and has therefore been approved." (C. Ex. 6). The letter does not limit the extension to just the generator requirement of rule 58A-5.036. Consequently, the Agency did not prove the charged violation by a preponderance of the evidence Tag 813 – Background Screening – Alleged violation of rule 59A-35.090(3)(c): The rule requires a provider, like an ALF, to maintain in an employee's personnel file the eligibility results of an employee's background screening and, in some circumstances, an attestation of compliance with background screening requirements. Fla. Admin. Code R. 59A-35.090. The personnel file for contracted Staff E did not contain current background screening eligibility results. When asked to produce the screening results, Cristal did not. A review of the Agency's background screening website, however, revealed that Contracted Staff E had an eligible screening effective March 29, 2018. The failure to maintain the background screening proof in contracted Contracted Staff E's personnel file is an unclassified violation. Tag 814 and Count XXVII – Background screening – Alleged violation of section 435.12, Florida Statutes: Section 435.12(1) requires the Agency to create a web-based system known as the Care Provider Background Screening Clearinghouse (Clearinghouse). The Clearinghouse maintains the results of background screening and shares them among specified agencies. The law requires employers of persons subject to background screening to register with the Clearinghouse and maintain the employment status of all staff, other than those providing services through a contract with another entity, with the Clearinghouse. Section 435.12(2)(c) requires employers to report initial employment and any changes in status within ten business days. Staff E contracted to provide nursing services at Cristal and worked there regularly. Cristal did not report her employment to the Clearinghouse. Cristal, however, added Contractor E and her background screening results to the Clearinghouse on September 11, 2018, during the survey. Also Contractor E, who also owned an ALF, was background screening eligible with fingerprints retained by the Clearinghouse that would not expire until March 8, 2023. Cristal did not prove that Contractor E was an employee of a separate entity working at Cristal by virtue of a contract with the separate entity. Cristal's failure to report Contractor E's employment to the Clearinghouse is an unclassified violation. Tag 30 and Count IV – Residents 14 and 30 – Alleged violation of rule 58A- 5.0182(6) and sections 429.28(1) - (2): Surveyor Lorienda Crawford noticed that Resident 14's bed had half-rails. The resident was unable to raise and lower the rails. Cristal's Director of Nursing was not aware the resident had obtained them. The half-rails, however, were plainly visible and would have been seen by any employee entering the room. The record does not contain evidence indicating how long the half- rails had been in place. The resident's records did not contain a physician's order for bed rails or anything else indicating that a health care provider had approved their use. Cristal Exhibit 14, page 201, is a document purporting to record telephoned orders for the rails and the resident's consent. Since it records an oral communication, it is inadmissible hearsay. The evidence does not establish a predicate for the business records exception. In addition, the absence of evidence about how, when, and by whom the document was created alone makes it unpersuasive. Rule 58A-5.0182(6)(g) provides: "[T]he use of physical restraints by a facility on a resident must be reviewed by the resident's physician annually. Any device, including half-bed rails, which the resident chooses to use and can remove or avoid without assistance, is not considered a physical restraint." The clear and convincing evidence proved the charged violation. This violation posed an indirect or potential risk to the resident and was properly classified as a Class III violation. Section 429.28(1) guarantees facility residents several rights including 45- day notice of termination of residence, the right to a grievance process, the right to manage their own financial affairs, and the right to a reasonable opportunity for regular exercise. Section 429.28(2) requires prominent display of the Residents' Bill of Rights and contact information for the Elder Abuse Hotline and other resources. These provisions are not implicated in the facts asserted in Agency proposed finding of fact 49. Although the Agency's proposed finding of fact 49 refers to a violation involving Resident 30 and Count IV alleges violations involving other residents, proposed finding of fact 49 only addresses a violation involving Resident 14. All other charges in Count IV are deemed abandoned. Survey Ending December 5, 2018 The December survey was a follow up to the September 2018 re-licensure survey. Tag 30 and Count IV – Residents 4, 11, and 33 – Alleged violations of rule 58A-5.0182(6) and section 429.28(1): Section 429.28(1) is part of the Residents' Bill of Rights described earlier. Rule 58A-5.0182(6), also described earlier, imposes requirements for implementing the rights. Rule 58A-5.0182(6)(b) requires a facility to have a written grievance procedure and to "be able to demonstrate that such procedure is implemented upon receipt of a complaint." Cristal has a grievance policy and procedure. They require Cristal's Executive Director to investigate a complaint and respond to the resident with a resolution within 24 hours or to extend the investigation period. They also require the Executive Director to document the resolution in the resident's chart. A cook whom the residents liked and felt was a good cook gave Cristal notice that she was quitting. Resident 33 was one of several residents who, on September 29, 2018, collectively submitted a complaint on the Cristal grievance log. The grievance stated, "We are furious that we no sooner have a new cook whom everyone seems to like and she's given notice that she's leaving. Now what? Can't Noiri chip in to keep her or is that a joke?" The residents demanded that Cristal increase the cook's pay so she would not leave. (AHCA Ex. 104) Resident 33's chart did not contain documentation of the resolution of the grievance. Cristal's administrator acknowledged that he had not spoken to the residents about their complaint. He, understandably, did not view it as a grievance about Cristal because the residents were not complaining of something Cristal did. The separation was the cook's decision. Nonetheless, Cristal's procedure required Cristal to respond to the complaint with a resolution, even if it was just to reject the grievance. Cristal did not do this. It was unable to demonstrate that, in this instance, it followed its grievance procedure. The Agency proved the charged, technical violation. The violation did not create a risk of any sort to the residents. The violation is unclassified. The Agency asserts that Resident 4 had complained of losing $600.00 and that Cristal had not followed its grievance process. The grievance is not recorded in the grievance log. The evidence to support this charge is vague, lacking details such as dates that might add credence. The evidence is uncorroborated hearsay. The witness's recall and the thoroughness of investigation of the complaint are questionable since the witness also testified that she could not find a Cristal grievance policy, although Cristal unquestionably had one. The witness also expressed difficulty remembering the claimed loss without consulting her survey notes. The Agency did not prove this charge by a preponderance of the evidence. One of the surveyors smelled cigarette smoke on the first floor. She believed the smell was coming from the room of Resident 11. The Agency maintains that this proves Cristal did not provide the "safe and decent living environment, free from abuse and neglect" required by section 429.28(1)(a). The Agency does not maintain that tobacco use at an ALF makes it unsafe and indecent. It could not plausibly do so since rule 58A-5.0182(6)(d) requires a facility to have rules and procedures that must address the facility's policies about alcohol and tobacco use. This plainly contemplates possible tobacco use at an ALF. The Agency claims Resident 11 was violating Cristal's tobacco policies. But it did not offer Cristal's tobacco policies into evidence. The Agency failed to prove the claimed violations involving Residents 4 and 11. Tag 8 and Count XVI – Residents 15 and 16 – Alleged violations of rule 58A- 5.0181(2) and section 429.26(4)-(6): The requirement to obtain and maintain accurate and complete health assessments imposed by the rule and statute were discussed earlier. The health assessment form for Resident 15 stated on page one that the resident required a nurse to administer medication. On page four the form indicated Resident 15 only needed assistance with self-administration, which may be performed by non-licensed personnel. Cristal bore the obligation to seek clarification of the conflict. It had not done so. The Agency proved by clear and convincing evidence that Cristal violated rule 58A-5.0181(2)(a)5 with Resident 15. The Agency had cited Cristal for this very violation with this resident during the September 14, 2018, survey. (Finding of Fact 89). This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. The Agency argues that Cristal did not have a completed health assessment form for Resident 16. Agency Exhibit 109, the health assessment form for Resident 16 indicated that the provider conducted the examination on October 31, 2020, an obvious typo. Cristal Exhibit 28, pages 1 through 5, also a health assessment form for Resident 16, records a July 27, 2018, date of examination. It is complete and detailed. The record includes contradictory and sincere, credible testimony from surveyor Ms. Williams and Cristal former Administrator Mr. Marcotte, both of whom reviewed the document on the day of the survey. The unresolved and unexplained conflict results in a failure to prove the alleged violation involving Resident 16 by a preponderance of the evidence. Tag 54 – Resident 3 – Alleged violation of rule 58A-5.0185(5)(b): The rule requires an ALF to "maintain a daily medication observation record (MOR) for each resident who receives assistance with self-administration of medications or medication administration." It must include a chart recording each time the medication is administered, any missed dosages, refusals to take the medication, and medication errors. The rule states emphatically: "The MOR must be immediately updated each time the medication is offered or administered." On December 4, 2018, a Cristal unit manager provided surveyor Robin Williams a November 2018 MOR for Resident 3 with a print date of December 4, 2018. The MOR indicated that Resident 3 was to receive Morphine Sulfate ER 30 milligram tablets once every eight hours to be taken by mouth. The MOR did not record administration of the drug at 2:00 p.m. on November 17, 2018, or the 10:00 p.m. dose on November 22, 2018. Ms. Williams discussed the omission with Cristal's unit manager. The next day the unit manager gave Ms. Williams a copy of the MOR printed December 5, 2018. This copy had staff initials indicating that the two omitted dosages had been administered. The unit manager offered no explanation of why the MOR had changed. The details of the surveyor notes, testimony from the surveyor at the hearing, the clear and distinct memory of the witness at the hearing, the precision of her testimony, as well as the consistency of the testimony with the contemporaneous survey notes left no uncertainty about the truth or accuracy of Ms. Williams' testimony. The clear and convincing evidence proves that Cristal violated the requirement to immediately update the MOR. This violation posed an indirect or potential risk to the resident. The agency properly classified it as a Class III violation. Tag 55 and Count XVIII – Resident 37 – Alleged violation of rule 58A- 5.0185(6): The rule requires facilities to centrally store medications which it administers. The Agency failed to prove this charge by a preponderance of the evidence. Its proof relies upon hearsay. The witness’s memory was not clear and distinct. One example is this testimony on page 424 of Volume II of the Transcript. So later it was found that the resident would go to the pharmacy and pick up her own medication. And she would – she would bring everything back, but she kept those two. And the resident – it was "concerned" because the resident had a history of suicide and the healthcare provider did not want her to have her medication. In addition, the evidence did not prove that Cristal administered the medication. It proved that Cristal assisted the resident with administration. Tag 56 and Count XIV – Residents 12 and 39 – Alleged violation of rule 58A- 5.0185(7): Rule 58A-5.0185(7)(c) requires a facility to contact the prescriber of any medication with directions to administer "as needed" to obtain revised instructions. Surveyor Vanessia Bulger testified that during the survey ending December 5, 2018, the instructions on Resident 12's Tramadol and on her MOR said that the medication should be administered as needed. She also observed that the label and MOR instructions for Ventolin HFA, 108, stated to administer the drug as needed. She testified that the instructions on the MOR did not indicate when to administer the medications. The MORs do. For Tramadol, the MOR says it should be administered as needed for pain. For Ventolin, the MOR says that it should be taken for shortness of breath. There is no explanation why the witness either did not see the instructions or did not mention them during testimony. The Agency did not prove the alleged violation involving Resident 12.5 Agency proposed finding of fact 55, which addresses the alleged violations involving Residents 12 and 39, does not identify any evidence related to a violation involving Resident 39. That claim is therefore deemed abandoned. Tag 152 and Count XX – Physical Plant/Safe Living – Alleged violations of rule 58A-5.023(3): The carpeting of the first floor of Cristal had multiple large, black stains. They also had an odor. The Agency offered no evidence about what caused the stains or the odor. The hallway paint of the first floor was chipped. Paint was peeling from the walls. The walls were also scuffed. The wall board between two doors was broken near the baseboard. Scars and bumps on walls caused by wheelchairs are normal in ALFs. Damage caused by residents requiring repair is common in ALFs. Rule 58A-5.023(3) requires ALFs to provide a safe living environment, to maintain a hazard-free facility, and to insure that systems and appurtenances are in good working order. The Agency did not offer evidence to show what caused the 5 This determinative contrast between a witness's recollection of what a document stated and what the document actually stated is a compelling example of the risks in relying upon testimony about a document to prove what a document says. stains, such as evidence that they were due to mold. It also did not offer persuasive evidence to show how long the conditions identified had existed. The items described above are unsightly and make the facility unattractive at best. But a preponderance of the evidence does not establish that they make the facility unsafe or hazardous or that any building system is not in good working order. The Agency did not prove these charges. Tag 163 – Resident 3 – Fraudulent Records – Alleged violation of section 429.29: Agency proposed finding of fact 57 addressing these charges relies upon the same facts as those involving the charge about Resident 3's MOR in Findings of Fact 159 and 160. A preponderance of the evidence does not establish that the obvious change was made to deceive or misrepresent. It could as easily have been Cristal’s effort to cure the deficiency. Section 429.29 is the only statute that the Agency argues, in proposed finding of fact 57 that Cristal violated. That section, titled "Civil actions to enforce rights," creates a cause of action for residents whose rights established under Chapter 429 are violated. It also specifies the damages available, the burden of proof, the standard of proof, and the elements that a party must prove to recover. It does not create any requirement or prohibition affecting the operation of ALFs in general or regarding alleged fraud in ALF records specifically. Tag 168 and Count VII – Resident 4 – Alleged violation of section 429.24(3)(a): Section 429.24 governs contracts between ALFs and residents. Subsection (3)(a) requires contracts to include a refund policy. The policy must "provide that the resident or responsible party is entitled to a prorated refund [of advanced rent or security deposit upon departing the ALF] based on the daily rate for any unused portion of payment beyond the termination date after all charges, including the cost of damages to the residential unit resulting from circumstances other than normal use, have been paid to the licensee." The law further requires an ALF to make the refund within 45 days of the termination date. It also states that if a facility fails to comply with the refund provisions the Agency shall impose a fine equal to three times the amount due the resident. On August 13, 2018, Nathan Marcotte, Cristal's Administrator at the time, gave Resident 4 a letter reading as follows: This is to inform you that Cristal Palace Resort PB LLC is no longer able to operate as a secured memory care facility. While we regret to inform you of this decision, we are excited about the opportunity for you to find a community in which you can thrive and be stimulated in the manner you deserve. Pursuant to our agreement and Florida regulations, this notice is being issued and gives 45 days to relocate. We have thoroughly enjoyed working with you, and only make this decision based on your needs and quality of life. We ask that you please not feel abandoned or alone in this process-we at Cristal Palace have become family, and we intend to assist in every manner possible. Additionally, as an act of good faith, we have decided to refund your community fee of $1,500, as it is in no way the fault of your or your family that we have come to this decision. Please do not hesitate to call so that we can begin assisting you in finding your next, permanent home. Resident 4 lived at Cristal for four months. As of the date of the hearing, Cristal had not paid the promised $1,500. Cristal's contract with Resident 4 contained the required refund terms. Mr. Marcotte testified that he made a mistake and wrote the letter before checking for damage or other items that could be lawfully deducted from the required refund. Mr. Marcotte did not testify that he followed the process section 429.24(3)(a) requires an ALF to follow if it intends to make a claim against a refund. The required process includes providing written notice of the claim. He also did not identify any specific damages or charges that Cristal maintained it was entitled to deduct from the refund. Clear and convincing evidence proved Cristal violated section 429.24(3)(a) by not giving Resident 4 his refund. The statute authorizes the Agency to collect a fine equal to three times the amount due the resident. In this case that amount would be $4,500.00. The statute requires the Agency to remit one-half of the fine ($2,250.00) to the resident or the resident's estate. Tag 90 and Count V – Alleged violation of rule 58A-5.0191(11): This rule governs DNRO training requirements addressed earlier. The rule requires direct care staff and staff involved in resident admission to receive at least one hour of facility- specific training in DNRO policies and procedures. Rule 58A-5.0191(12)(c) requires an ALF to document that staff completed required training. Therefore, if Cristal provided staff the required facility-specific training in DNROs, Cristal would have been able to provide the surveyors with documentation of the training. This is another instance where the witness's testimony describing documents she said she saw is too vague and imprecise to be persuasive. The witness said broadly that "the staff did not have the required do not resuscitate order training." (Tr. Vol. II, pp. 413 - 414). The witness did not identify which staff members allegedly did not receive the required training. For that matter, neither does the Agency's proposed finding of fact 59, which addresses this charge. It refers only to "staff." The witness offered only general descriptions of certificates and agendas that she reviewed. She provided no information about where she found them, what efforts she made to determine if they were the only relevant documents, when the staff members were employed, or in what capacity they worked. The Agency did not offer the documents into evidence. This testimony is insufficient to be corroborated by the statements recorded in the surveyors' notes. In addition, the notes suffer from the same deficiencies as the testimony, other than identifying individual staff members. Furthermore, the notes are a collective work leaving the reviewer to guess which portions of them the witness authored. The Agency did not prove these charges by a preponderance of the evidence. Tag 81 and Count VI – In-service Training – Alleged violation of rule 58A- 5.0191(2) - (3): Agency proposed finding of fact 60 maintains that Staff C and F did not receive the training required by rule 58A-5.0191(2) and (3.) Agency proposed finding of fact 60 addresses this charge. Rule 58A-5.0191(2)(a)-(d) requires specific training for staff who provide direct care to residents. The Agency did not prove by a preponderance of the evidence that Staff C and F provided direct care to residents. (Page 26 of the Recommended Order in Cristal I highlights the significance of the distinction between requirements imposed upon direct care staff and others.) In addition, Agency Exhibit 137, which is the surveyor notes that the Agency cites as supporting this charge, distinguish between staff and caregivers. Agency Exhibit 137 describes Staff C and F as staff, not caregivers. The Agency failed to prove that Cristal was required to provide the training required by rule 58A- 5.0191(2)(a)-(d) to Staff C and F. Rule 58A-5.0191(2)(f) requires all facility staff to receive in-service training on the facility's elopement policies and procedures within 30 days of employment. It does not require that the training last a specific period of time. The Agency did not prove by a preponderance of the evidence that Staff C and F did not receive elopement training. In fact, Agency Exhibit 137 indicates that they did. Rule 58A-5.0191(3) requires facility employees to "complete a one-time education course on HIV and AIDS … ." The record citations that the Agency provided in proposed finding of fact 60 to prove the charges here do not mention HIV and AIDS education or training. The alleged violation involving HIV and AIDS training is deemed abandoned. The Agency also did not prove a violation of rule 58A- 5.0191(3). Tag 161 – Staff Records – Alleged violation of rule 58A-5.024(2) and section 429.275(2), Florida Statutes: Rule 58A-5.024(2)(a) mandates that the personnel records for each staff member contain "a copy of the employment application, with references furnished… ." The Agency maintains in proposed finding of fact 61 that the personnel records of employee G did not contain an employment application. The only evidence the Agency cites to prove this charge is Agency Exhibit 137, which is the composite surveyor notes of eight individuals. It states the personnel record for staff (G) did not contain an employment application. It also states that the administrator confirmed the record did not contain an application and that the administrator could not produce one. The surveyor notes are inadmissible hearsay which is not sufficient to prove what the administrator said. In addition, if the notes were not hearsay, they would not be persuasive because the details are sketchy. For instance, the notes do not advise how the surveyors made sure they had reviewed the entire personnel record. Also the notes do not identify who authored the observations and statements they record. The Agency failed to prove this charge. Section 429.275 requires facility administrators and owners to maintain accurate business records and liability insurance coverage. It lists documents that the administrator and owner must maintain in the personnel records for each staff member. A copy of the employment application with references is not one of the required records. The Agency did not prove Cristal violated this statute. Tag 25 and Count X – Resident 15 – Alleged violation of rule 58A-5.0182(1) and section 429.26(7): Rule 58A-5.0182(1)(d) requires a facility to contact a resident's health care provider or other appropriate party if the resident exhibits a "significant change." Section 429.26(7) requires a facility to notify a licensed physician "when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment." The Agency contends, in proposed finding of fact 62, that the statement in MORs for Resident 15 say Resident 15 "declined numerous prescribed medications" in September and October of 2018 document a “significant change" or "change of condition" requiring Cristal to contact the resident's health care provider. The Agency cites Exhibit 141, Surveyors' Notes, to support its claim. That document states Resident 15 refused to take her medications on nine days in November. One of the surveyors, Ms. Williams, testified that Resident 15's MORs for July 2018 and September 2018 document that the patient refused medications. The MORs are Agency Exhibits 83 and 84. The exhibits do not indicate that the resident refused medications. They indicate that Resident 15 declined assistance with administration of several medications. The Agency's Medication Practices rule separately defines assistance with self-administration and administration. Compare, Fla. Admin. Code R. 58A-5.0185(3) and Fla. Admin. Code R. 58A-5.0185(4). Assistance includes minor actions such as opening the medication container or making water or cups available. Id. The Agency did not prove that Resident 15 declined medication. The Agency did not prove that refusing assistance with medication was a "significant change." The Agency also did not prove that if the resident had refused the medications, the refusal would have amounted to a significant change. It offered only a witness's broad, conclusory, summary opinion. The witness did not discuss information such as the conditions the medications treated, the likely effect of not taking them, or any perceived changes in the resident's condition. The witness did not identify changes in the resident's conduct that were signs of dementia or cognitive impairment. The Agency did not prove the charged violations by a preponderance of the evidence. Tag 162 – Resident 35 – Alleged violation of Rule 58A-5.024(3): Rule 58A- 5.024(3)(g) requires facilities that will have unlicensed staff assist residents with self- administration of medications to maintain "a copy of written informed consent described in Rule 58A-5.0181, F.A.C. if such consent is not included in the resident's contract." Fla. Admin. Code R. 58A-5.0181(1)(e)1 requires written, informed consent for unlicensed staff to provide assistance administering medication. Cristal uses an informed consent form that calls for the resident to choose "will" or "will not" to indicate consent to unlicensed staff assisting with self-administration of medications. The form for Resident 35 was signed and dated August 22, 2018. Neither "will" nor "will not" was selected. When the surveyor asked the administrator about the form, he took the form to the resident who selected "will not." The administrator provided the surveyor a copy of the amended form. This was on December 4, 2018, the day of the survey. The Agency described this matter in its proposed finding of fact 63. It did not seek a determination that this was a deficiency of any class, a tacit acknowledgement that Cristal timely cured the violation. Tag 200 and Count XXVI – Detailed Emergency Environmental Control Plan – Alleged violation of Rule 58A-5.036: This violation was also among the charges arising from the September visit. The alleged violation of Tag 200 is that Cristal did not have an emergency power supply as required by rule 58A-5.036(1). At the time of the December visit, Cristal did not have the required emergency power supply installed. It did have two generators awaiting installation. But the Agency extension of the time period during which Cristal must establish an emergency power supply was still in effect. As of January 9, 2019, Cristal had one installed LP gas fueled generator. The evidence does not indicate that the generator's cooling capacity satisfied rule requirements. The generator was not connected to a fuel source. Live electrical wiring was exposed. Clear and convincing evidence proves that Cristal was not in compliance with rule 58A-5.036(1) in January, 2019. But this was not the month for which the Agency charged a violation as presented in Agency proposed finding of fact 64. The Agency did not prove the charged violation. Tag 816 and Count XXIII – Background Screening Compliance – Alleged violation of section 408.809(2): Agency proposed finding of fact 65 and Count XXIII assert that section 408.809(2), Florida Statutes, "requires that persons subject to criminal history background screening execute an attestation of compliance with the provisions of Chapter 435, Florida Statutes, as part of the background screening process." The Agency claims that the personnel records of Cristal staff F and G did not contain an attestation of compliance. Section 408.809(2)(c) is the part of the statute that the Agency argues Cristal violated which refers to an attestation of compliance. The relevant part of the statute establishes an alternative to the background screening through the Agency requirement permitting a provider to use proof of meeting the background screening requirements of five other agencies in lieu of meeting the requirements if the provider satisfies three requirements. The pertinent part says: Until a specified agency is fully implemented in the clearinghouse created under s. 435.12, the agency may accept as satisfying the requirements of this section proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under chapter 651, provided that: The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in s. 435.04 and this section; The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and Such proof is accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section using forms provided by the agency. The statute does not require an affidavit or attestation of compliance for providers that do not rely upon the exception. Also, Cristal and the Agency participated in the Clearinghouse. In fact the Agency seeks to sanction Cristal for not reporting employment of a different individual to the Clearinghouse. (Tr.,Vol. I, pp. 133 and 134). Cristal maintains that its Exhibit 11 includes an attestation by each employee. The exhibit contains attestations dated December 6, 2016. The record does not establish that the individuals who signed the attestations are Staff F and G. The Agency did not prove that Staff F and G were relying upon the alternative means of satisfying background screening requirements. In fact, the testimony in Volume II of the Transcript, pages 486 to 498, cited by the Agency, does not mention this alleged violation. Testimony about the alleged violation appears at page 427 of Volume I and pages 471 and 472 of Volume III. It only says the records did not contain affidavits. The testimony says nothing about the circumstances in which compliance attestations are required. Consequently, the Agency did not prove this charge. Tag 77 – Administrator – Alleged violation of rule 58A-5.019(1) and section 429.176: The Agency charges three Tag 77 violations, one each for the July, September, and December survey periods. Proposed Agency findings of fact 32, 50, and 66 address these tags. For July 2017, the Agency asserts the violation amounts to a class III violation. This is also the charge of Count XXIV. For September 14, 2018, the Agency asserts the violation is a Class II violation. For December 5, 2018, the Agency asserts the violation is a Class III violation. This is also the charge of Count XXV. All three Tag 77 violations rely upon the tag violations alleged for each survey period. Count XXIV is the companion to the Tag 77 charge for the September survey period. Section 429.176 states: If, during the period for which a license is issued, the owner changes administrators, the owner must notify the agency of the change within 10 days and provide documentation within 90 days that the new administrator has completed the applicable core educational requirements under s. 429.52. A facility may not be operated for more than 120 consecutive days without an administrator who has completed the core educational requirements. The Agency does not propose any findings of fact about changes in Cristal administrators. Consequently, this claim is deemed abandoned. This Recommended Order does not address the statute further. Rule 58A-5.019(1) requires that: [e]very facility must be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including management of all staff and the provision of appropriate care to all residents as required by chapters 408, Part II, 429, part I, F.S. and rule chapter 59A-35, F.A.C., and this rule chapter. Each of the proposed findings asserting Tag 77 violations relies upon the tags from its survey period. Each proposes that: [t]he totality of the deficient practices cited during the [survey period] reflect multiple failures in facility compliance with minimum standards including resident care, record keeping, physical plant and resident safety. The multiple failures demonstrate the administrator was not fulfilling the administrator's role in the management of staff and the provision of resident care. For the survey period ending July 13, 2017, the proven failures upon which the Agency can rely for Tag 77 are four class III violations, asserted in Tags 8, 54, 93, and 162, and one class II violation asserted in Tag 25. The Tag 8 offenses are deficient health assessment forms for Residents 22, 7, and 4. The Tag 54 offenses are deficient MORs for three residents. The Tag 93 offense is a failure to comply with requirements for dating, posting, and conforming to menus. The Class III offense in Tag 162 was failure to maintain weight records required by rule. The Class II offense proven for Tag 25 was failure to notify a resident's health care provider when the patient was transferred to a hospital. These offenses follow three Class III offenses from the May 10, 2017, survey period, two of which are the same as the July offenses. They include Tag 8 health assessment form deficiencies which should have triggered increased attention to fulfilling the requirement to ensure proper completion of the forms. Yet the violation persists in the July period. The May deficiencies also include a Tag 56 deficiency of failing to identify the patient who was to receive medication and a Tag 93 violation of failing to post the resident menu as required. The menu violation should have focused Cristal on complying with the relatively simple requirement to date, post, and maintain menus. Instead Cristal did not cure the problem, giving rise to another Tag 93 offense for the July 13, 2017 period. These offenses demonstrate a failure to operate and manage Cristal to provide appropriate care to the residents. The clear and convincing evidence supports the Agency determination that this failure is an indirect or potential risk to residents. It is properly classified as a Class III violation. For the survey period ending September 14, 2017, the proven failures upon which the Agency can rely for Tag 77 are five Class III violations, one Class II violation, and two unclassified violations. The unclassified violations both involve background screening recordkeeping. The Tag 813 deficiency is for failing to have background screening results in a personnel file, although the Clearinghouse reported a clear background screening for the staff member. The Tag 814 deficiency is for failing to report the contractual employment of the staff member to the Clearinghouse. The Class IV violation, identified as Tag 167, is for failure to have a required contractual provision in Cristal's contract with Resident 18. The first Class III violation is that once again Cristal has a Tag 8, health assessment form violation. Tag 54 is the second Class III violation. Once again Cristal has a Tag 54 violation involving deficient MORs. The third Class III violation is Tag 56. Cristal did not seek rule-required clarification of a "use as needed" prescription. The fourth Class III violation is a Tag 160 violation for failing to maintain an accurate admission and discharge log. The fifth Class III violation is a Tag 30 violation for permitting bed-rails, which are considered a restraint, without proper authorization or consent. For the period ending September 14, 2018, Cristal continued its pattern of failure to comply with recordkeeping requirements. It also failed to comply with an important and elementary requirement to maintain an emergency supply of water. This is the Class II violation of Tag 93. These violations reflect a sustained failure to manage the facility in a way that provides Cristal's residents appropriate care. These management failures create a direct risk to residents. The Agency properly classified the September Tag 77 as a Class II violation. The proven offenses supporting the Tag 77 violation for the period ending December 5, 2018, are two Class III violations, one unclassified violation, and a contractual violation. The Tag 30 violation is unclassified. It is for failure to process complaints about a cook's decision to quit as a grievance. One Class III violation is yet another Tag 8 failure to obtain and maintain complete health assessments. The other Class III violation is another Tag 54 deficiency involving failure to keep accurate MORs. The fine is for failure to follow the statutorily required process for refunding deposits and advance payments. The repeating nature of the offenses involving health assessments and MORs create an indirect or potential risk to residents. The Agency proved the September Tag 77 and Count XXIV, in part. The Agency correctly classified this as a Class III violation.
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: denying the application for license renewal of Cristal Palace Resort PB, LLC; imposing administrative fines in the total amount of $23,000; and requiring the Agency to remit $2,250 of Cristal's fine to Resident 4 or Resident 4's successors or heirs. DONE AND ENTERED this 17th day of March, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 17th day of March, 2020. COPIES FURNISHED: Nicola Brown, Esquire Agency for Health Care Administration Suite 330H 525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed) John E. Terrel, Esquire John E. Terrel, P.A. Suite 11-116 1700 North Monroe Street Tallahassee, Florida 32303 (eServed) Thomas J. Walsh, II, Esquire Agency for Health Care Administration Suite 330H 525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration Mail Stop 1 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Mail Stop 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 (eServed)
The Issue Whether Respondent Florida Department of Economic Opportunity (the Department or DEO) engaged in discriminatory practices, concerning Petitioner’s disability, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Wright was an Employment Program Specialist with the Department’s Reemployment Assistance Division. Although she primarily worked in the Special Programs Child Support unit, she was also assigned to the Benefit Records unit during her employment with the Department. Ms. Wright testified that her issues with the Department started in 2014, and continued until her resignation on August 15, 2018. In 2014, Ms. Wright began experiencing serious medical issues, including bowel and bladder trouble, fatigue, and fibromyalgia. In September 2014, she took a month of leave from her employment because of these medical issues. Upon her return, Ms. Lampkin, who worked in DEO’s human resources department (HR), primarily focused on payroll, and Ms. Wright’s then-supervisor, Ayman Youseff, instructed her to use “leave without pay” for additional absences. Ms. Wright testified that after her return in 2014, Mr. Youseff began harassing her after she took another leave from employment, in the form of requiring her to provide additional supporting medical documentation for the leave. When Ms. Wright informed Mr. Youseff that his request was incorrect, he apologized and advised his supervisors of the mistake. Ms. Wright and her former co-worker, Ms. Milton, both testified that Mr. Youseff was rude and unprofessional. Ms. Milton testified that Mr. Youseff also had issues with Ms. Wright concerning her absences due to illnesses, and with other employees donating leave to Ms. Wright. Ms. Wright also testified that Mr. Youseff made her turn in her timesheets to him directly, as opposed to HR. Ms. Wright testified that she viewed this request, as well as requests from HR to use donated sick leave after she had exhausted all other remaining leave, and ultimately to use leave without pay—which she acknowledged were prompted by her absences from work during this time period—as harassment. In February 2015, Ms. Wright requested a transfer back to a previous unit within DEO, under a supervisor she liked, because she felt she was being harassed. DEO granted her transfer request in less than two weeks. Ms. Wright’s new supervisor was Mr. Leonard. However, after her transfer, Ms. Wright’s medical conditions did not go away. In September 2016, she submitted a request for a modified schedule accommodation to Mr. Huddleston, in DEO’s Office for Civil Rights, which noted that she had issues in the mornings because of her medical condition. DEO granted this request, and changed Ms. Wright’s work schedule to 10:30 a.m. through 6:30 p.m. Beginning in early 2017, DEO overpaid Ms. Wright several times because she failed to complete her timesheet and failed to timely document her use of leave without pay. In August 2017, Ms. Wright took a one-month absence from employment because of her medical issues, and was frequently absent from work during the following few months. During this time period, an HR employee accepted Ms. Wright’s incorrect timesheets for those time periods, and recouped each month’s overpayment from the following month’s pay. This became an issue for DEO because Ms. Wright utilized leave without pay for most of the month of August; however, the resulting lack of funds owed to her precluded DEO from immediate recoupment. Ms. Lampkin, who had left her employment with DEO but returned to her position in August 2017, recognized the payment issue with Ms. Wright. Ms. Lampkin testified that, because of Ms. Wright’s submittal of timesheets that utilize leave without pay after the payroll deadline for correcting timesheets, DEO’s HR department began paying Ms. Wright “on-demand,” i.e., payment for hours that she actually worked, to avoid overpaying Ms. Wright month after month. DEO introduced into evidence the Bureau of State Payroll Manual (Manual), which governs DEO’s handling of payroll issues. With respect to salary overpayment, the Manual states that “Agencies are responsible for identifying and preventing salary overpayments ” Although Ms. Wright contends that this switch from recoupment (which resulted in salary overpayment) to payment on-demand was evidence of harassment based on her disability, she also testified, on cross-examination, that “it’s verified in [the Manual] that it could be done that way.” Ms. Lampkin also credibly explained an issue that arose with Ms. Wright’s allegation that DEO canceled her insurance benefits, which Ms. Wright considered additional harassment. Ms. Lampkin testified: The term canceled is kind of an overstatement. There is a glitch in their insurance if I have to cancel their check and pay them on demand, because that means that the payment doesn’t go over when the regular payroll runs, and it gets paid on supplemental, and it’s usually on the same date that their payday is, but then it’s—the payment to the insurance companies would be sent at a later date than the other ones. It would be a lag time there. * * * If I canceled their monthly paycheck, that stops payment going to any pretax deductions; it would stop them. And then by paying them on demand, that would create the payment and send it over, but the difference in an on-demand and the regular payroll is processed approximately one week before payday. And on-demand is processed three days before payday. Technically two days, because the third day is when they get paid so—so it’s that lag time from a week to down to three days. Ms. Wright also testified that DEO engaged in harassment in discouraging other employees from donating sick leave to her. For example, in 2018, Ms. Wright testified that DEO hindered Charlie Davis, a DEO management level employee, from donating hours to her. DEO presented evidence that Ms. Wright was the recipient of many sick leave donations during her employment; all told, she received and used over 1,000 hours between 2014 and her resignation. Although Mr. Davis had donated sick leave hours to Ms. Wright previously, Ms. Pottle, who was Ms. Lampkin’s supervisor in DEO’s HR Department, explained that DEO employees in a supervisory or management position “are highly discouraged from donating to employees because it – it could be construed as favoritism.” Ms. Wright testified that she discussed Mr. Davis’s intention to donate additional sick leave hours with another DEO employee, and Mr. Davis was ultimately permitted to donate sick leave to Ms. Wright. On February 6, 2018, in response to Ms. Wright’s expressed concerns, individuals in Ms. Wright’s supervisory chain and Ms. Lampkin, met with Ms. Wright to discuss two options she could use in an attempt to resolve her leave and payroll issues: (a) be paid on-demand early, with the balance paid after she finalized her timesheet at the end of the month; or (b) remain on automatic pay, but provide donated leave hours and any necessary medical certification supporting their use by the 15th of each month. Following the February 6, 2018, meeting, Ms. Wright began providing medical certifications, which stated that she needed time off from work intermittently to attend medical appointments. Ms. Wright testified that she believed that these medical certifications allowed her to arrive for work as late as she felt necessary due to her medical condition. Ms. Wright, during a June 5, 2018 meeting with Mr. Leonard, expressed this belief; Mr. Leonard, in an email to Ms. Wright that same day, asked her “to provide supporting documentation regarding the need to arrive at work after 10:30 a.m. since the most recent documentation reflects a schedule of 10:30 a.m. to 6:30 p.m.” Mr. Leonard also testified about his team’s experience covering for Ms. Wright when she was absent. He stated that Ms. Wright cross-trained other members of this team to complete her work in her absence. However, when covering for Ms. Wright, these team members would then have work duties above and beyond their regular work duties. On June 8, 2018, Ms. Wright submitted a request to Mr. Huddleston in DEO’s Office for Civil Rights requesting a flexible, part-time schedule that would allow her to arrive for work between 10:30 a.m. and noon, and end her workday at 6:30 p.m. (Second Accommodation Request). With this Second Accommodation Request, Ms. Wright also submitted a letter from her physician stating that she was unable to arrive to work and do her job before 10:30 a.m., and would benefit from the flexible schedule she requested. At the time of Ms. Wright’s Second Accommodation Request, DEO’s Reemployment Assistance program was undergoing a significant reorganization. Ms. Wright worked in the Special Programs unit of DEO’s Reemployment Assistance program at that time. Mr. Huddleston testified that, after receiving Ms. Wright’s Second Accommodation Request, DEO decided to deny it. In an email dated July 11, 2018, Mr. Huddleston wrote: After reviewing your request, at this time, your request, to modify your accommodation of a flexible part-time work schedule is denied. Currently your accommodation allows you to work at 10:30 AM instead of your regularly scheduled start time of 8:00 AM. Your new accommodation request asks that you be allowed to arrive at work after 10:30 AM but before 12:00 PM. In making this decision our office has spoken with your management team and has determined that this modification would cause an undue hardship. This modification to your existing accommodation would also require a lowering of performance or production standards. Based on these two factors, we have determined that you would not be able to perform the essential functions of your position if this modification were to be put into place. The Equal Employment Opportunity Commission states that essential functions are basic job duties that an employee must be able to perform, with or without a reasonable accommodation. These duties must be performed to achieve the objectives of the job. As part of this, and all accommodation request reviews, our office analyzed your position to determine its purpose and essential functions, consulted with your management team, and researched and explored accommodation options to assess the effectiveness of the accommodation. During this interactive process we explored the possibility of reassigning you to another position that was as close as possible to your current position in status and pay; however, we were unable to find a suitable position. There are no part-time positions currently available and the essential functions of your position can not be completed working the hours you requested. Our office would be more than happy to meet with you to discuss this further and to explore other accommodation options that you and/or your medical professional come up with. However, on July 10, 2018—the day before Mr. Huddleston sent the email denying the Second Accommodation Request—Ms. Wright went on another month-long leave of absence from her employment because of her worsening medical condition. Ms. Wright testified that she believed that DEO would approve of her Second Accommodation Request and that, after returning to work, she would start the new schedule. Ms. Wright testified that she did not know the status of her Second Accommodation Request until she returned to work (after her month-long leave of absence) on August 13, 2018, and read Mr. Huddleston’s email. She sent him the following email response later that afternoon: Thanks for reviewing my request to modify my work schedule. I understand that there is no part- time positions available; but I was referring to me working at least 30 hours per week. When I met with my supervisor Marche and Joel in June concerning me arriving later than my scheduled time 10:30 AM, I advised them that I needed to request a modification to my previous work schedule because I moved back home with my mom which is outside of Quincy due to my health. I also advised them that it was impossible for me to arrive to work at 10:30 AM due to the distance I had to travel and the medications I take. I informed them that 11:15 or 11:30 would work better for me because I understand that my job consists of duties that must be performed in order to achieve the objectives outlined for the job. Please let me know when there’s a good time for us to meet. Thanks again for your help concerning this matter. Rather than wait for Mr. Huddleston’s response, Ms. Wright resigned on August 15, 2018, by a letter that she left in a co-worker’s chair. This resignation letter does not identify any reason for her resignation. On August 20, 2018, Mr. Huddleston—unaware of Ms. Wright’s resignation—actually responded to Ms. Wright’s August 13, 2018, email, inviting her to meet with him about her concerns. Ms. Wright testified that she has not sought out employment after her resignation from DEO because of her medical condition. Ms. Wright presented no persuasive evidence that DEO’s actions subjected her to harassment based on her disability, or that such actions were sufficiently severe or pervasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, substantial evidence in the record upon which the undersigned could make a finding of unlawful disability harassment or hostile work environment. Ms. Wright presented no persuasive evidence that, at the time of her resignation, her working conditions were so intolerable that a reasonable person in her position would have felt compelled to resign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Angela Wright’s Petition for Relief. DONE AND ENTERED this 19th day of January, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER 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 19th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Angela Michelle Wright 4102 Greensboro Highway Quincy, Florida 32351 (eServed) Dominique Gabrielle Young, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street Tallahassee, Florida 32399 (eServed) Brandon W. White, Esquire Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether Respondent should have an administrative penalty imposed, take corrective action, and pay investigative costs for allegedly maintaining a sewage treatment plant in violation of applicable rules and statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Since 1969, Respondent, an active Florida corporation, has owned and operated a relatively small mobile home park (with around 55 mobile homes) at Two Tropic Wind Drive, Port Orange, Florida, known as Double D Mobile Ranch. In conjunction with the mobile home park, Respondent owns and operates a wastewater treatment plant (facility) for its residents. The facility is under the regulatory jurisdiction of the Department. Respondent's president is John D'Hondt, who is the only certified operator for the facility. On June 8, 2001, a Department representative inspected Respondent's facility and noted that Respondent had violated a number of statutes and rules. In accordance with Department protocol, on September 26, 2001, the Department sent Mr. D'Hondt by certified mail a "Noncompliance Letter" (First Letter), which identified the various violations and requested that Respondent respond within 14 days with a schedule of corrective action. Mr. D'Hondt received the First Letter but did not file a response. On February 27, 2002, a Department representative conducted a routine follow-up inspection of the facility. Mr. D'Hondt was present during the inspection. During the course of the inspection, the representative noted the following violations, some of which were repeat violations from the earlier inspection: Count I. The logbook on-site was not bound with numbered pages, and it did not contain the signature of the operators, as required by Florida Administrative Code Rule 62- 602.650(4). Count II. A copy of the operation and maintenance manual was not on-site, as required by Florida Administrative Code Rule 62-600.410(4)(f). Count III. A copy of the certified operator's license was not on site, as required by Florida Administrative Code Rule 62-620.350(8). Count IV. Respondent failed to submit Discharge Monitoring Reports from May 2001 through January 2002, as required by Florida Administrative Code Rule 62-601.300(1)(b). Count V. After effluent samples were collected and tested, the tests revealed that the Total Suspended Solids were 185 milligrams per Liter (mg/L), which exceed the permit limit of 60 mg/L for a single sample, in violation of Florida Administrative Code Rule 62-600.740(1)(b)1.d. Count VI. Advisory signs were not posted at the facility indicating the nature of the project area, as required by Florida Administrative Code Rules 62-610.418(1) and 62-610.518(1). Count VII. The percolation pond located adjacent to the plant had less than one foot of freeboard, in violation of Florida Administrative Code Rule 62-610.516. In addition to the foregoing charges, by its Count VIII, the Department seeks to recover investigative costs totaling not less than $750.00, which the Department claims were incurred during the investigation and processing of the Notice. On April 2, 2002, the Department sent Mr. D'Hondt by certified mail a second Noncompliance Letter (Second Letter) outlining the various violations and requesting that he respond within 14 days after receipt of the Second Letter with a schedule of corrective action. Although Mr. D'Hondt received the Second Letter around April 20, 2002, he failed to file a response. On July 1, 2002, the Department sent another letter (Third Letter) by certified mail to Mr. D'Hondt requesting a reply to the Second Letter previously sent in April. The Third Letter advised Mr. D'Hondt that if he wished to avoid an enforcement action, he should file a response within 7 days from receipt of the letter. Mr. D'Hondt received the Third Letter around July 20, 2002, but he failed to respond to either the Second or Third Letters. On January 15, 2003, the Department issued its Notice alleging that Respondent had violated various statutes and rules (as described in Finding of Fact 3) in seven respects. After an informal conference failed to resolve the matter, Respondent eventually filed an Amended Petition on February 18, 2004, contesting the validity of the charges. The Charges Because Respondent has acknowledged that the allegations in Counts I-VI are true, no further proof as to those matters is necessary. Accordingly, it is found that the charges in those Counts have been established. In Count VII, Respondent is charged with having "a freeboard of less than one (1) foot" in its percolation pond, as required by Florida Administrative Code Rule 62-610.516. ("Freeboard" refers to the area between the top of the water in the pond and the top of the surrounding berm.) Under that rule, "[p]ercolation ponds . . . shall be provided with an emergency discharge device to prevent water levels from rising closer than one foot from the top of the embankment or berm." This means that a facility operator must maintain at least one foot of separation between the water level in the treatment pond and the top of the berm. The purpose of maintaining this amount of separation is to prevent an overflow of treated liquids in the event of an extremely heavy rainfall or a catastrophic event. This is especially important here since Respondent's percolation pond (which is used to dispose of treated liquids from the facility) appears to be no more than 30 feet or so from several mobile homes. See Petitioner's Exhibit 3. Testimony by the Department inspector established that when the inspection occurred, there was less than one foot of separation on the right side of the pond, as corroborated by, and reflected in, Petitioner's Exhibit 3, a digital photograph of the pond taken during the inspection. Respondent's contention that a separation of at least one foot existed in the pond at the time of inspection has been considered and rejected in light of the credible contrary evidence. Therefore, the charge in Count VII has been established. The evidence supports a finding that the Department incurred at least $750.00 in investigative costs while conducting the inspection, performing tests, attempting to informally resolve the case, and issuing the Notice. This amount is based on the cost of the field and laboratory tests, the hourly compensation of the inspector, and the hourly compensation of the supervisor who reviewed the inspector's work. It also includes the time expended by Department personnel in attempting to informally resolve the matter and later issuing the NOV. See Petitioner's Exhibit 9. Therefore, the charges in Count VIII have been sustained. Under the statutory scheme in place, the violations in Counts I through VII call for an administrative penalty in the amount of $5,750.00. The derivation of this amount is found in Petitioner's Exhibit 7, which is a penalty computation worksheet. Mitigating Evidence Although he was given an opportunity to offer mitigating evidence at the final hearing, Mr. D'Hondt failed to present any evidence that the violations were caused by circumstances beyond his control or that they could not have been prevented by due diligence. While Mr. D'Hondt did testify at final hearing that he has reduced the occupancy rate in the mobile home park to 70 percent to satisfy Department flow capacity requirements, this by itself is insufficient to warrant a reduction in the penalty.
Findings Of Fact The Petitioner, Vinder Homes, Inc., d/b/a The White House of Vinder Homes, Palm Harbor, Florida, is an 8-bed licensed adult congregate living facility. The Petitioner was licensed on February 5, 1986. On January 29, 1986, the Respondent, the Department of Health and Rehabilitative Services, sent an inspection team to the Petitioner's facility to conduct the initial survey. Accompanying the team was Earl T. Wright, an employee of the Respondent. Present at the Petitioner's facility during the initial survey was Robert A. Jones, and James C. Vinson, the owner and applicant for the license. During the survey, the HRS survey team identified several violations of rules or statutes governing an adult congregate living facility. At the end of a survey conducted by HRS of adult congregate living facilities, HRS normally follows the procedure of orally describing and explaining the rule violations that have been found to those persons representing the facility who are present during the survey. The representative of the facility is then asked to sign an "exit letter." The "exit letter" is a form that is given to the facility representative to explain the procedures and deadlines that must be followed to correct the violations. HRS exhibit 1 is a copy of the "exit letter" given to the representatives of the Petitioner on January 29, 1986, at the conclusion of the survey. The letter was signed by Mr. Jones, who was expressly authorized by Mr. Vinson to sign the letter on that date on behalf of the Petitioner, and to receive a copy on behalf of the Petitioner. The Petitioner, through its duly authorized agent, was reminded by HRS exhibit 1 that it had been advised of the deficiencies and had been requested to write them down. It was further advised that a time frame had been established for correction of each deficiency and that it could request additional time, if needed. It was further advised that an unannounced revisit would be conducted after the date of correction to determine if the corrections had taken place. It was further advised by the exhibit that it was required to correct each deficiency by the date established, and that failure to do so might result in the assessment of an administrative fine. At the conclusion of the survey on January 29, 1986, Mr. Jones, the authorized representative of the Petitioner, was told by the HRS survey team the nature of each of the violations found, and was advised concerning the period of time established for correction of each asserted violation. Mr. Vinson had thee opportunity to learn about the violations as well, but it is unclear whether he availed himself of the opportunity. At some time after January 29, 1986, and before April 1, 1986, the Respondent mailed a copy of HRS exhibit 2 to the Petitioner. It was mailed to the Petitioner at the address of the facility. This was the address given to HRS in the license application by Mr. Vinson. HRS exhibit 3. Mr. Vinson had not requested that notices be sent by HRS to any other address. HRS exhibit 2 is a form used by the Respondent to give written follow-up notice to the adult congregate living facility of the violations and correction schedule. It is intended to give written notice of that which had already been orally discussed with the facility representative at the time of the survey. The violations listed on HRS exhibit 2 are the same violations which were orally described and explained to the authorized representative of the Petitioner on January 29, 1986. On April 1, 1986, Mr. Wright conducted an unannounced reinspection of the Petitioner's facility. A copy of HRS exhibit 2 was present at the facility on April 1, 1986, when Mr. Wright conducted his unannounced reinspection. By April 1, 1986, the Petitioner had corrected some of the rule violations listed on HRS exhibit 2. The Petitioner, through its authorized representatives present at the facility, in fact received a copy of HRS exhibit 2 before April 1, 1986. The Petitioner presented no evidence that HRS exhibit 2 was received by its authorized representative in an untimely manner, i.e., at some time after the deadline had passed for correction of violations. Mr. Vinson testified that he never received a copy of the exhibit, but his authorized representative, at the address he had given to HRS as the address of the licensed facility, did receive it. The following are the four violations contained in HRS exhibit 2 that are in dispute in this case. Each is alleged to have occurred on January 29, 1986, and to still to have not been corrected on April 1, 1986: A copy of the Resident Bill of Rights was not posted in the facility. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department. The facility did not have back-flow devices to prevent contamination from entering the water supply. The fire alarm system was not continuously maintained in reliable operating condition. A copy of the Resident Bill of Rights was not posted in the facility on January 29, 1986, or on April 1, 1986. Mr. Vinson's testimony that he "thought" it was posted is insufficient to overcome the proof presented by the Respondent. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department on either January 29, 1986, or April 1, 1986. Mr. Vinson's testimony that he thought Mr. Jones would have completed the course is not sufficient. Mr. Vinson did not produce Mr. Jones to testify, nor did he produce any record of completion of the course. The facility did have back-flow devices to prevent contamination from entering the water supply on January 29, 1986, or on April 1, 1986. The testimony of Mr. Vinson is credited over the contrary testimony of Mr. Wright. Mr. Wright did not explain how he conducted the inspection of the back-flow devices, and did not explain what he found and how that resulted in the conclusion that back-flow devices were not present. Mr. Vinson, on the other hand, stated that he built the building himself, that he installed back-flow devices, that such devices were required by his building permit, and that he obtained a certificate of occupancy following construction. The Department has not proved the point by a preponderance of the evidence. The proof that the facility did not have a fire alarm system that was continuously maintained in reliable operating condition on January 29, 1986, was not adequate to prove this fact by a preponderance of the evidence. Mr. Wright acknowledged that a fire inspector (who did not testify) accompanied him on the survey and conducted that portion of the initial survey. Although Mr. Wright testified that he heard the fire inspector attempting to work the fire alarm system, this second hand evidence is not sufficient to prove that the system was not in good and operable mechanical order on January 29, 1986. Moreover, the proof is not adequate that the system was not mechanically operable on April 1, 1986. Mr. Wright asked the young woman present during the revisit to work the system, and she was not able to do so because she did not know how to operate it. Mr. Wright did not try to work it either. Thus, no one conducted a test of the system, and there is, therefore, no evidence in the record to show that the deficiency that existed on January 29, 1986, had not been corrected. It must be remembered that the deficiency that existed on January 29, 1986, was not that the manager or administrator of the facility could not operate the fire alarm system, but that the system was mechanically inoperable. There were no elderly persons present in the Petitioner's facility during the initial survey on January 29, 1986, but on April 1, 1986, the young woman in charge of the facility was serving breakfast to four elderly persons. None of the violations discussed above were considered by HRS to be of sufficient gravity to deny issuance of the license.
Recommendation It is therefore recommended that the Department of Health and Rehabilitative Services enter its final order finding that Vinder Homes, Inc., d/b/a the White House of Vinder Homes, Palm Harbor, Florida, has failed to correct the first two violations described above in the time established by the Department, and assessing a total civil penalty of two hundred dollars ($200). DONE and ENTERED this 21st day of July, 1987. WILLIAM C. SHERRILL, JR. 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 21st day of July 1987. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 John Brook, Esquire 695 Central Avenue Suite 213 St. Petersburg, Florida 33701
