The Issue Whether Respondent Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code, and, if so, what penalty should be imposed. Whether Respondent Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 61C-1.004(5) and 4A-48.003, Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the operation of hotel establishments pursuant to Section 210.165 and Chapter 509, Florida Statutes. Respondents, at all times material to these proceedings, have been licensed or otherwise subject to the Department's jurisdiction. The last known business address of Indiana House is 1114 Indiana Avenue, St. Cloud, Florida. The last known business address of Illinois House is 820 Illinois Avenue, St. Cloud, Florida. Both Indiana House and Illinois House are transient rooming houses. The tenants pay rent for the rooms they occupy. On January 26, 2001, an inspector for the Department inspected the Indiana House and noted numerous deficiencies, including a lack of a fire alarm system. The inspector returned to Indiana House on May 1, 2001, but was unable to get into the building. She made a call-back inspection on May 22, 2001, and found that certain violations had not been corrected, including the lack of a fire alarm system. On June 5, 2001, the inspector returned to Indiana House. No fire alarm panel had been installed, and the owner, Thomas Griffin, did not have keys to the property so the inspector did not have access to the building. On February 12 and 18, 2002, an inspector for the Department inspected the Indiana House and found the following deficiencies: (1) a gang plug was being used in a bedroom, (2) wires were dangling from a fan light, (3) the air conditioner faceplate was missing, exposing the filters and coils, and (4) no service tag was on the fire extinguisher. A gang plug is an adapter that is put into the electrical outlet on a wall so that more than one electrical plug can be used with that outlet. The gang plug found at Indiana House on the February 12 and 18, 2002, inspections would allow the use of six electrical plugs at one time. On January 26, 2001, an inspector from the Department inspected Illinois House and found that there was no fire alarm system. Another inspection was made on May 1, 2001, and it was noted that the outside door was locked. A call-back inspection was made on May 22, 2001, and no fire alarm had been installed. On June 5, 2001, a call-back inspection was made. The owner of the property stated that he did not have keys to the building; thus, the inspector could not access the premises. The owner advised at the time of the inspection on June 5, 2001, that no fire alarm system had been installed. On February 18, 2002, an inspector for the Department inspected Illinois House and found that none of the bedrooms had smoke detectors. On February 25, 2002, a call-back inspection was made, and a battery operated smoke detector in a bedroom did not work when tested. The Department considers a critical violation to be one that is an immediate health hazard. The failure to have a fire alarm system is a critical violation because the buildings are transient rooming houses and most of the people residing in the buildings at any given time will be strangers to one another. If a fire occurs, the consistent and reliable means of notifying the tenants would be through the use of a fire alarm system. The failure of the smoke detector to work is also a critical violation. If a fire occurs, an inoperable smoke detector will not warn the tenant, and, since no fire alarm has been installed, it is likely that the tenant may not have sufficient warning in time to escape from the fire. Both Illinois House and Indiana House have applied to the Homeless Service Network for a grant to make renovations to the buildings to bring them up to whatever code is necessary in order for the properties to be used as transient housing. When the money becomes available, it is anticipated that the renovations will be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code. Imposing a $2,500 fine on Indiana House and requiring the owner of Indiana House to attend a Hospitality Education Program. Finding that Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003 and 61C- 1.004(5), Florida Administrative Code. Imposing a $1,500 fine on Illinois House and requiring the owner of Illinois House to attend a Hospitality Education Program. DONE AND ENTERED this 27th day of September, 2002, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2002. COPIES FURNISHED: Thomas Griffin Indiana House 1221 12th Street St. Cloud, Florida 34769 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue presented for decision in this case is whether Respondent violated Section 509.032, Florida Statutes, as set forth in the Administrative Complaint dated April 3, 2000.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made. At all times relevant to this proceeding, Petitioner is the state agency charged with licensing, regulating, and inspecting public lodging establishments to protect public safety. To accomplish this purpose, Petitioner employs persons trained to respond to citizen complaints about public lodging establishments. Such inspectors visit and inspect the premises about which complaints are made, gather facts, and make reports to document their findings. At all times relevant to this proceeding, Petitioner employed Sean Sylvester Grovesnor ("Grovesnor") as a Sanitation and Safety Specialist assigned to its Division of Hotels and Restaurants. At all times relevant to this proceeding, Respondent 1015 Apartments was a licensed public lodging establishment within the meaning of Section 509.013(4)(a), Florida Statutes, operating under license control number 16-04182H, and located at 1015 Northeast 17th Avenue, Fort Lauderdale, Florida 33304-2465. Responding to a complaint on or about February 10, 2000, Grovesnor visited 1015 Apartments. Grovesnor's inspection revealed various violations. Specifically, Grovesnor observed: balcony railing supports in disrepair in front of Apartment No. 204; no smoke detector in Apartment No. 201; an exit sign hanging from exposed wires by Apartment No. 205; a broken window on south side of the building; water stained ceiling tiles in living room of Apartment No. 201; holes in kitchen cabinets in Apartment no. 201; cold water knob in Apartment No. 201 would not work; faucet head not properly attached to the bathtub in Apartment No. 201; mildew and mildew holes in bathroom ceiling of Apartment No. 104. the sewer line clean out pipe cover was missing in the parking lot. Respondent was informed that all violations must be corrected by February 17, 2000. On or about February 18, 2000, Grovesnor made a callback/reinspection visit for the purpose of determining whether Respondent had corrected the violations noted on the previous visit. None of the violations previously noted had been corrected. Each of the above-described violations constitutes a separate and distinct potential hazard to the health and/or safety of individuals on the premises. The balcony railing violation was corrected on March 17, 2000, by Tim's Welding of Fort Lauderdale.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of violating the above-specified provisions of the Florida Statutes and Florida Administrative Code, and that Respondent be required to pay a fine in the amount of $1,000. DONE AND ENTERED this 13th day of December, 2000, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2000. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jean Pierre-Louis 1015 Northeast 17th Avenue Apartment 205 Fort Lauderdale, Florida 33304-2465
The Issue Whether Respondent nursing home has committed a violation of Section 400.102 (1), Florida Statutes (2007), by an intentional or negligent act materially affecting the health or safety of nursing home residents, so that Petitioner may impose a $15,000, administrative fine, a "survey fee" of $6,000, for surveys every six months for two years, and a conditional license for the period of April 24, 2008, through and including May 5, 2008, based on a cited Class I widespread deficiency.
Findings Of Fact Petitioner Agency for Health Care Administration (AHCA) is the State agency responsible for licensing and evaluating nursing homes under Chapter 400, Part II, Florida Statutes, and Section 408.802(13), Florida Statutes. Respondent Sandalwood is a skilled nursing facility located in Daytona Beach, Florida. It is one of roughly 15 nursing facilities managed by Sterling Healthcare. The dispute in this case arose from a survey conducted by AHCA at the Sandalwood facility on April 23, 2008. Effective October 23, 2006, the Code of Federal Regulations, 42 C.F.R. Section 483.70(7), was amended to require installation of battery-operated single station smoke alarms, in accordance with the manufacturer's recommendation, in every nursing home resident’s sleeping room and in common areas of all nursing homes, unless the facility were "fully sprinklered" or if the facility had system-based smoke detectors in residents' rooms and common areas. "Fully sprinklered" means sprinklers installed throughout the facility, including in each resident’s room. On November 1, 2006, the United States Center for Medicare and Medicaid Services (CMS) issued a letter to State Survey Agency Directors, including AHCA, advising them of this new requirement. There was a phase-in period for this regulation based on the cost of implementing it. It is AHCA's general practice to issue letters to nursing home facilities advising them of changes to laws that affect them. In this situation, AHCA issued a letter to nursing homes requiring that they become fully-sprinklered by December 31, 2010, but AHCA did not send out a letter advising nursing homes, including Respondent, that at least until the nursing home became fully sprinklered, smoke detectors were required in residents' rooms. There also may not have been any other readily accessible private publication notifying nursing homes in the relevant time frame.1/ A telephone conference occurred on April 22, 2008, between Polly Weaver, AHCA's Bureau Chief for Field Operations; Skip Gregory, Chief Fire Marshal for AHCA; and all of AHCA’s Field Office Managers, including Nancy Marsh, the Field Office Manager for AHCA's Area Four, which comprises seven counties, including Volusia, where Respondent is located. During that April 22, 2008, telephone conference, a decision was made to survey all nursing home facilities on a list of 26 nursing homes (out of a total of 670 such homes in the State) that were not yet fully sprinklered. The impetus for the telephone conference had been a fire at a nursing home outside Area Four and unrelated to Respondent Sandalwood. Ms. Marsh may not even have been aware of the smoke detector issue until shortly before April 22, 2008. After the April 22, 2008, conference, Ms. Marsh telephoned Lewis Hubbard, the licensed nursing home administrator of Respondent Sandalwood. Ms. Marsh inquired as to whether Sandalwood had smoke detectors in each resident’s room, and Mr. Hubbard candidly admitted there were not. Ms. Marsh did not indicate any urgency concerning her inquiry, did not mention anything about issuing a complaint against Sandalwood, and did not alert Mr. Hubbard that an emergency survey was about to occur. Mr. Hubbard has been Respondent's administrator since March 2006. He first became licensed in 2004, and is an expert in nursing home administration. On April 23, 2008, Ms. Marsh sent Don Gray, an AHCA Fire Protection Specialist from AHCA's Area Seven, to Respondent Sandalwood, which is in Area Four, to do a "pinpoint" survey to see if the facility had smoke detectors in residents’ rooms. Mr. Gray had never inspected Sandalwood. Nick Linardi is the AHCA surveyor who normally inspects Sandalwood. On April 23, 2008, Mr. Gray inspected Sandalwood for a "fully-sprinklered" system and checked for smoke detectors in 30 residents' sleeping rooms. Informed that there were no smoke detectors in any of the residents’ sleeping rooms, Mr. Gray did not inspect the remaining sleeping rooms. At his request, Sandalwood provided Mr. Gray with a resident census and condition report that gave the surveyor a synopsis of the type of residents currently at the facility on the day of his inspection: 14 Medicare patients and 53 Medicaid patients, which meant the facility was subject to CMS regulations. At the time of the survey, seven patients were bedfast and would require special assistance from staff if an emergency situation occurred, such as a fire. Mr. Gray assessed a risk of harm that could possibly befall at least 53 Sandalwood residents who would need help in moving to a secure area if a fire broke out. Respondent Sandalwood is a nursing home built in 1962, and composed basically of concrete. Its ceilings and the walls between residents' rooms are made of concrete. It is in the shape of a big "capital H". There are two nurses' stations on each wing, so that staff can view all the residents' rooms. On the day of Mr. Gray’s pinpoint survey, Respondent Sandalwood had six designated fire zones. There also were smoke detectors placed about every 15 feet throughout the hallways. This placed smoke detectors in close proximity to the door of each resident’s room. Smoke detectors were also located in all the common areas (dining area, receptionist desk, etc.) Sandalwood utilizes a Def-Con fire detection system, so that if any smoke detector sounds, the alert goes immediately to the nearest nurses' station and simultaneously to the local fire department. This type of system is called a "core” smoke detection system. On April 23, 2008, Respondent Sandalwood also had sprinklers located in the utility and linen closets. On April 23, 2008, Respondent Sandalwood had plans in place to have the facility "fully-sprinklered" by the established deadline of December 31, 2010. That deadline has since been extended by CMS/AHCA to December 2013. Mr. Gray normally completes handwritten notes during, or immediately after, his survey or whenever he “gets time." His notes for this case reflect an inspection for battery- operated smoke detectors in residents’ rooms and a check for sprinkler heads. A conference call was held later on April 23, 2008, among Ms. Weaver, Mr. Gregory, Jim Tinkin (AHCA Administrator for Safety and Life Safety for Tallahassee), Brian Smith, Molly McKistry (sic), Bernard Hudson, Joel Libby, a Paul (last name unknown but as recalled by Mr. Gray) and Nick Linardi, the previously unavailable AHCA surveyor. They discussed Mr. Gray’s findings that the facility was not "fully-sprinklered" and that there were no battery-operated smoke detectors in residents' rooms. Based on Mr. Gray's notes, a consensus was reached to charge the lack of sprinklers and lack of smoke detectors as a "K023 & F454, violation." During the foregoing conference call, Mr. Gray was the first one to recommend a Class I violation, claiming that there was an issue of immediate jeopardy. However, this opinion, as he recollected it at final hearing, was based on his assessment that Sandalwood’s situation "could possibly, potentially cause harm to a client or resident," or “could be fatal . . . harmful." Mr. Gray gave examples of fires which had occurred in other facilities in his home Region in the prior month, none of which fires had started in residents’ rooms, and one of which had occurred outside on a smoking patio to a resident in a wheelchair. It is difficult to see how smoke detectors in sleeping rooms would have prevented the foregoing situations. He was additionally concerned with arson attempts, sometimes by residents. According to Mr. Gray’s handwritten notes, before leaving the facility on April 23, 2008, he advised Respondent's administrator, Mr. Hubbard, that Mr. Hubbard would have to correct the smoke detector issue in the "next few days." Mr. Hubbard wanted clarification concerning the codes regarding these issues. Apparently, Mr. Gray called the administrator on April 24, 2008, to confirm the need for smoke detectors in all the residents' rooms. Early on April 24, 2008, Mr. Hubbard began searching nearby stores to locate smoke detectors. He purchased 10 smoke detectors meeting the Federal requirements. Identifying the facility’s “high risk” rooms or rooms most susceptible to fire, Mr. Hubbard assisted in placing the smoke detectors in the rooms of residents who were smokers and residents who used oxygen, whether or not they were smokers. Later on April 24, 2008, Linda Walker, another AHCA surveyor, appeared at Respondent facility. Ms. Walker is a Registered Nurse Specialist and does nursing surveys of nursing homes for AHCA. If this had been a normal complaint survey or a periodic survey, Ms. Walker and Mr. Gray would have surveyed Sandalwood at the same time on the same date, and deferred to each other in their respective areas of control/expertise. In this instance, Ms. Walker’s superiors had sent her to Respondent’s facility after Mr. Gray’s survey, specifically to assess, from a nursing perspective, any danger to certain types of residents. Mr. Gray, in addition to being a Fire Specialist, is also a Licensed Practical Nurse, but he stated that he would defer to Ms. Walker on all nursing issues. Among other things, Registered Nurse Walker was sent to the facility to check on the progress of the smoke detector installation and the status of resident smokers and those residents using oxygen. Ms. Walker did more than a "pinpoint" inspection involving just a few sprinkler heads, smoke detectors, and a patient census. In this case, Registered Nurse Walker’s survey amounted to a more thorough assessment of any jeopardy to the resident population in Respondent’s facility than Mr. Gray’s assessment. Ms. Walker determined that when a resident is admitted to Sandalwood, she/he is assessed on whether she/he is, or is not, a smoker. An assessment form is filled out to determine if the resident is safe to smoke on his or her own. A care plan is also established concerning smoking for each resident who smokes. To keep an ongoing assessment of each resident in regards to smoking, Sandalwood also utilizes quarterly assessments for each of their smokers. Ms. Walker observed "No Smoking" signs on the doors of residents who used oxygen. Ms. Walker also observed that the one smoker on the well-ventilated smoking porch was wearing a smoking apron. A smoking apron is a flame-resistant apron used for residents who may have difficulty holding a cigarette. It protects the designated resident if a cigarette, match, or lighter is dropped. Such a precaution would have eliminated one of Mr. Gray's examples of potential concern. (See Finding of Fact No. 21.) Ms. Walker also observed ashtrays and a fire extinguisher on the smoking porch. Ms. Walker interviewed various residents concerning Sandalwood’s smoking policy and procedures, and all reflected an understanding of the policies and procedures. Two residents were identified as those with oxygen orders. One of these residents was interviewed and understood the need not to smoke around oxygen, even though she no longer used oxygen. The other resident could only smoke with supervision of staff. One resident, who was observed by Ms. Walker, had been identified by the nursing staff as being unsafe to smoke when alone, needing supervision, and needing to wear a smoking apron. That resident's cigarettes and lighter were kept at the nursing station, except when actually in use. Ms. Walker noted that particular resident's file contained the resident’s assessment and care plan, and quarterly reviews of the resident’s care plan. Ms. Walker further noted that Respondent’s smoking assessments and care plans were proper. She concluded that Respondent’s quarterly assessments of smokers which are used by some, but not all, nursing homes, were complete for all smokers at Respondent's facility. There is evidence herein that the nursing home fire which started this chain of events (see Finding of Fact No. 8) did not have adequate care plans. Respondent's staff was also interviewed by Ms. Walker. They expressed an understanding of the facility’s smoking policy and procedures, including the rule that smokers could not smoke in their rooms. During Ms. Walker’s survey on April 24, 2008, Sandalwood's maintenance director and Mr. Hubbard were already placing smoke detectors in 10 residents' rooms. Mr. Hubbard had purchased as many of the appropriate smoke detectors as he could, and these detectors were being placed in the rooms of the nine residents who used oxygen and/or who smoked. After placing those nine smoke detectors, the tenth smoke detector was placed in a randomly selected room. Ms. Walker completed a three-page handwritten note about her survey on April 24, 2008, and followed-up with a typed report of the same date. Ms. Walker returned to Sandalwood on April 25, 2008. By that time, Mr. Hubbard had purchased enough smoke detectors for the remaining residents’ rooms, and Ms. Walker determined that a compliant smoke detector had, in fact, been placed in every resident’s room by April 25, 2008. The smoke detectors had been placed out of reach of the residents and were affixed with heavy-duty "two-way" tape, mostly to ceilings, but occasionally to walls. It would be extremely difficult to remove the smoke detectors from the concrete walls. Affixing the smoke detectors to the ceilings and walls arguably constituted a change to the physical facility. On April 28, 2008, Mr. Hubbard prepared a "Plan of Correction," indicating that all smoke detectors had already been installed in all residents' rooms on April 25, 2008. He forwarded this "Plan of Correction" to Petitioner AHCA. On May 5, 2008, AHCA sent Mr. Hubbard a 2567 survey form. He added his foregoing Plan of Correction (see, supra.) to this form, signed it, and sent it back to AHCA the same day. However, as noted previously, the corrections had already been made as of April 25, 2008, even though AHCA did not issue its survey form mandating the corrections until May 5, 2008. According to Ms. Marsh, the single station battery- operated smoke detectors located in residents' rooms in nursing homes only need to be checked annually by AHCA surveyors in order to comply with the applicable rules and regulations. Ms. Marsh testified that in the future, surveyors would only check on a yearly basis to determine if nursing home facilities met the requirement concerning smoke detectors. Presumably, this would be to check on the timely replacement of batteries, because the smoke detector batteries last approximately one year. Mr. Hubbard testified that his Plan of Correction called for Sandalwood staff to check each battery monthly. Anthony Mongelluzzo has been Daytona Beach's Fire Inspector for 20 years, 15 years of which have involved inspecting 150 nursing homes. He is an expert in Fire Safety Inspections. He has inspected the Sandalwood facility on an annual basis and is familiar with its physical plant. Mr. Mongelluzzo had completed his most recent annual inspection of Respondent in March 2008, the month preceding the material time frame of AHCA’s pinpoint survey. Mr. Mongelluzzo’s March 2008, inspection noted that there were only two corrections that Sandalwood needed to make. Both corrections involved an extension cord deficiency and the use of multi-plug power strips. Both issues were subsequently corrected, and Mr. Mongelluzzo sent a letter acknowledging that fact to Mr. Hubbard. Mr. Mongelluzzo also had reviewed the Fire Safety Plan that Sandalwood had submitted to the City of Daytona Beach for the year 2008. As a result, he had issued an April 15, 2008, letter, approving Sandalwood's 2008 Fire Safety Plan. This approval occurred approximately nine days before AHCA targeted Sandalwood and sent in AHCA surveyors, Mr. Gray and Ms. Walker. The Fire Safety Plan submitted by Sandalwood to the City of Daytona Beach sets forth the facility’s procedures in the event of a fire, such as closing doors, evacuation of all occupants of the facility, and where the residents and staff are to rendezvous outside of the facility in order for there to be a meaningful headcount. It is specific, where Mr. Gray's assessment of evacuation situations was more general or an estimate. (See, supra.) In issuing the City of Daytona Beach’s approval letter for Sandalwood’s Fire Safety Plan, Mr. Mongelluzzo did not imply that the facility was not required to follow federal laws. Mr. Mongelluzzo is not familiar with 42 C.F.R. Section 483.70. The City of Daytona Beach’s Plan approval letter only approved Sandalwood's procedures, staff, and the staff’s assigned responsibilities in case of a fire, in connection with the Life Safety Code, National Fire Protection Association (NFPA) 101, which standard is utilized by municipalities across the State of Florida and which standard has been adopted by the City of Daytona Beach. The Life Safety Code NFPA-101 is the Code that Mr. Mongelluzzo relies upon when inspecting nursing home facilities. The Life Safety Code NFPA-101, addresses construction, protection, and occupancy features necessary to minimize danger to life from the effects of fire, including smoke, heat, and toxic gases created by fire. The Life Safety Code also addresses features and systems, building services, operating features, maintenance activities, and other provisions in recognition of the fact that to achieve an acceptable degree of Life Safety depends on additional safeguards providing adequate facility egress, time for that egress, and protection for people exposed to a fire. However, 42 C.F.R. Section 483.70(a), states that facilities must meet the applicable provisions in the 2000 Edition of the Life Safety Code of the National Fire Protection Association. Florida Administrative Code Rule 59A-4.130, also states that a licensee must comply with the Life Safety Code requirements and Building Code standards applicable at the time of departmental approval of the facility’s Third-Stage construction documents. The Life Safety Code NFPA-101 does not require smoke detectors in residents’ rooms when a facility has a core smoke detection system, like the one utilized by Sandalwood. (See Finding of Fact No. 15.) Sandalwood also had been surveyed in standard rotation by Respondent AHCA on a regular basis over the years, the most recent survey having occurred on April 10, 2007, approximately a year before the survey in the instant case. AHCA issued a survey report thereafter which was signed by the Administrator, Mr. Hubbard, in May 2007. AHCA’s survey on April 10, 2007, had not identified as a deficiency the lack of smoke detectors in residents' rooms. There is no competent evidence that the AHCA surveyors at that time even looked for them, even though the CMS requirement therefor would have applied at that time. Respondent AHCA also makes quarterly monitoring reports on nursing home facilities. These are confidential reports for the facility to use for purposes of correcting any issues identified by the monitor. The monitor has the same or better qualifications than a typical nursing home surveyor. Monitor reports contain a disclaimer that the report is not to be construed as evidence of compliance or noncompliance with applicable sections of Florida Statutes, the Florida Administrative Code, or the Code of Federal Regulations. However, the quarterly monitoring reports are designed to advise the facility of any perceived issue and to advise of any unusual, out of character, or problematic issues. Sandalwood had received AHCA monitoring reports for May 17, 2007, October 15, 2007, January 22, 2008, and May 5, 2008. There was no mention of the need for smoke detectors in residents' rooms in any of the AHCA reports prior to the May 5, 2008, report, which post-dated the survey at issue herein. In the May 5, 2008, report, the notation was included under the heading "Safety Issues." CMS compiles what is termed a "Special Focus Facility" list that identifies facilities that it believes need to be monitored closely. Sandalwood is not on this list. Two unrelated facilities are on this list. AHCA has filed administrative complaints against each of those facilities. The allegations in those cases appear to be more severe than in the instant case. Ms. Marsh completed a "Request for Sanctions" (RFS) form in which she recommended a Class I penalty for Sandalwood. Section 120.53, Florida Statutes, requires that agencies compile a list of prior final orders in a subject matter index, so as to ensure uniformity and fairness in assessing penalties in cases before each respective Agency. The Subject Matter Index is supposed to be used as administrative precedent and should be made public. Ms. Marsh did not know what a Subject Matter Index is, or rely on a Subject Matter Index in assessing the penalty in this case. Instead, she relied on prior RFSs, which are not public documents. She testified that the Agency's recommendation for sanctions takes into account the class and severity of a deficiency which is established through Agency procedure, protocol, and guidelines. She described parameters related to Class I, Class II, and Class III, deficiencies, as set out in the Florida Statutes. From her viewpoint, Sandalwood either had two Class I deficiencies or a single Class I deficiency in a specified timeframe, when consideration is given to the prior history of the facility. In light of Sandalwood's excellent survey history, the foregoing viewpoint was not fully explained. Despite AHCA’s sudden cessation of prior notification of changes in the law, Ms. Marsh brooks no excuse for a facility administrator not knowing his facility must be in compliance with State laws. She considered Sandalwood’s history of not having been previously cited for the absence of smoke detectors by an AHCA survey as of minimal importance.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That the Agency for Health Care Administration enter a Final Order finding Respondent not guilty of the charges contained in the Amended Administrative Complaint, and dismissing the Amended Administrative Complaint. DONE AND ENTERED this 5th day of August, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 5th day of August, 2009.
The Issue The issue for determination is whether the application for an initial license to operate an Adult Family Care Home ("AFCH") should be denied because the applicant submitted fraudulent or inaccurate information in the application.
Findings Of Fact Petitioner is owned by Ms. Marvell Lawton, R.N. (the "applicant"). On June 3, 1996, the applicant applied for a license to operate an AFCH at 550 East Division Street, Deland, Florida (the "facility"). Respondent is the state agency responsible for licensing AFCHs. Respondent requires several documents to be submitted with the application including: a Florida Department of Health and Rehabilitative Services ("HRS") Community Residential Homes Sponsor Certification Form (the "HRS Form"); a statement by the local zoning office that the facility is properly zoned (the "zoning approval"); and a fire inspection report. The applicant altered the HRS Form, the zoning approval, and the fire inspection report to indicate that the facility was approved for a maximum capacity of five residents. Respondent initially denied the license application solely on the basis of the fire inspection report. However, the basis of denial was amended to include the HRS Form and the zoning approval pursuant to an order entered by Judge Stephen F. Dean on October 16, 1996. By letter dated July 11, 1996, Respondent notified the applicant that her application was denied. The letter stated, in relevant part, that the specific basis for denial was: . . . Submission of fraudulent or inaccurate information to the agency. The fire safety inspection report submitted with the application package was altered to indicate approval for five residents when the fire marshal's office had only approved three residents. The local fire marshal's office has verified that the original approval was for three residents because Ms. Lawton did not want to install a manual alarm system which is required for four or five residents. Submission of fraudulent or inaccurate information to the agency is grounds for denial of the AFCH application, s. 400.619(11)(e),F.S. On April 2, 1996, the applicant obtained a fire inspection report from the City of Deland Fire Department (the "Fire Department"). The fire inspection report limited the maximum capacity of the facility to three residents because the applicant did not have the manual alarm system required for four or five residents and did not wish to install such a system. The applicant altered the fire inspection report that she submitted with her application. She changed the number "3" to a "5" so that the fire inspection report appeared to approve the facility for a maximum capacity of five residents. As part of its review of the application, Respondent attempted to verify the fire inspection report included in the application by calling the Fire Department. When the Fire Department did not verify that the maximum capacity was five residents, Respondent obtained a copy of the original fire inspection report from the Fire Department. On March 22, 1996, the applicant obtained a zoning approval from the City of DeLand stating that the maximum capacity of the facility is three residents. The applicant added the phrase "to 5" after the number "3" in the zoning approval so that the zoning approval authorized a maximum capacity of "3 to 5" residents. On June 3, 1996, the applicant submitted the HRS Form to Respondent. The applicant amended the portion of the HRS Form requiring a designation of capacity for facilities with six or fewer residents as well as that for facilities with 7-14 residents. The latter category does not apply to Petitioner. The applicant did not submit fraudulent information to Respondent. The applicant did not intend to defraud Respondent. She misunderstood the application process. The facility has space for only three residents. It is physically impossible to house more than three residents in the facility. The applicant would have gained nothing from an authorized capacity of more than three residents. The applicant's refusal to add the manual alarm system required for four or five residents is consistent with the facility's limit of three residents. The applicant assumed that Respondent's minimum license category is for a license of 1-5 residents. The applicant altered the HRS Form, the zoning approval, and the fire inspection report under the mistaken belief that the capacity designation in each document should conform to the maximum capacity in Respondent's license category. In the HRS Form, the applicant even altered the licensed capacity for facilities with 7-14 residents. The applicant mistakenly submitted inaccurate information to Respondent within the meaning of Section 400.619(11)(e), Florida Statutes.1 The maximum licensed capacity of the facility must be consistent with fire safety requirements for the welfare of the residents. The licensed capacity of the facility must also conform to applicable zoning laws.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and thereinGRANT a license to operate an AFCH for three residents. RECOMMENDED this 21st day of February, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1997.
Findings Of Fact On August 10, 1977, Petitioner filed an application for an Adult Congregate Living Facility License. Thereafter, on nine separate occasions Petitioner was visited by representatives of Respondent, the Dade County Fire Department, and the Dade County Health Department. The results of the inspections by these governmental agencies were numerous lists showing deficiencies in Petitioner's staff, physical plant, sanitary practices, and in diets being furnished to the residents of the facility. At the final hearing in this cause, Petitioner's President admitted that the deficiencies noted in the May 22, 1978 letter of Respondent's Supervisor of the Aging and Adult Services Program, which was marked as Petitioner's Exhibit Number 3, were correct as of the date of the letter. Petitioner contends, however, that the deficiencies noted in Petitioner's Exhibit Number 3 have since been corrected. However, the issue in this proceeding is whether there was substantial competent evidence in existence on May 22, 1978, to justify the denial by HRS of Petitioner's application for an Adult Congregate Living Facility License. Corrections made by Petitioner after that date are irrelevant to this proceeding, although Petitioner would not, of course, be estopped to show correction of these deficiencies in a later application. Inspections conducted by or on behalf of HRS on April 7, 1978, May 12, 1978, and May 16, 1978, showed that staff on duty at Petitioner's facility was inadequate to properly supervise residents in the facility. On the April 7, 1978, visit, there were only one or two staff members on duty to care for thirty-four residents of the facility. The inspection conducted on May 16, 1978, revealed only one staff member on duty. The Administrator of the facility on both occasions was not in attendance at the facility at the time of the inspections. Fire inspections on Petitioner's facility were conducted on January 6, 1978, and again on April 20, 1978. The January 6, 1978, inspection resulted in a lengthy list of deficiencies, which included citations for no building evacuation plan, improper fire extinguishers, lack of proper latching devices on doors, improper hanging of doors, improper installation and maintenance of electrical equipment, no emergency lighting, obstruction in facility corridors, lack of exit signs, lack of smoke detectors, insufficient landing size on stairways, improper storage of flammable chemicals, and improper safety precautions in the electrical equipment room. The April 20, 1978, inspection also resulted in a lengthy list of deficiencies, including lack of an evacuation plan, no record of evacuation drills having been held, lack of proper latching devices on stairway fire doors, and lack of exit signs. There is no evidence of record from which to conclude that these deficiencies were corrected prior to the date on which HRS denied Petitioner's application for a license to operate an Adult Congregate Living Facility. Sanitary inspections of Petitioner's facility were conducted on August 29, 1977, and April 18, 1978. The August 29, 1977 inspection resulted in a lengthy list of deficiencies which is contained in Petitioner's Exhibit Number Among these deficiencies were improper doors, windows and screens in the facility, lack of handrails, improper lighting, improper heating, insufficient number of toilets for the existing number of residents in the facility, and numerous electrical code violations. The inspection conducted on April 18, 1978, revealed many of the same deficiencies noted in the earlier inspection. In addition, a serious fly problem was observed in the kitchen area which was caused by improper sanitary procedures in the kitchen and disrepair of windows, screens and doors. In addition, live roaches and roach eggs were observed in the kitchen, also due to improper sanitary procedures. Further, a live rat and significant quantities of rat droppings were also observed in the kitchen area. The April 18, 1978 inspection also revealed cracked ceilings, holes in walls, malfunctioning lights, holes in floors, and use of a common drinking cup at the water fountain in the facility. There is insufficient evidence in the record in this cause to appropriately demonstrate that the deficiencies noted in the August 29, 1977 and April 18, 1978 inspections were adequately corrected prior to the denial of Petitioner's request for a license on May 22, 1978. On May 12, 1978, the kitchen facilities belonging to Petitioner were inspected by an HRS staff nutritionist. On the day of the inspection, the Administrator was not in attendance at the facility, and the only staff member present was a young woman who had difficulty communicating in English, and who was in charge of both residents of the facility and total food service, including preparation, serving and cleaning. The lunch menu posted for the date of the inspection did not provide one third of established recommended dietary allowances. The menu was also calculated to be deficient in calories, protein, calcium, iron, Vitamin A, Vitamin C, Thiamine, Riboflavin and Niacin. The food on hand in the facility did not correspond to posted menus, and the meal observed together with the food inventory were not sufficient for the age group residing in the facility and could result in malnutrition. The kitchen area was dirty, and food preparation utensils required scrubbing and sanitizing. Dishes were being washed with tepid water which was not sufficient for sterilization, and other sterilization methods being used for kitchen utensils were not sufficient to sterilize them. A serious fly problem existed in the kitchen, at least in part due to poor installation of doors. It was impossible to determine the qualifications of the Food Service Supervisor, no policy manual regarding food preparation was found in the facility, and no job description, work assignment, orientation plan, training record, health exam, or employee evaluation could be located for food service personnel. There were no written menus approved by a qualified consulting dietician, no written procedures for ordering, receiving and storing foodstuffs, and no food preparation or recipe file.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Health and Rehabilitative Services, denying Petitioner's Application for a License to Operate an Adult Congregate Living Facility. RECOMMENDED THIS 5th day of January, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Stuart E. Wilson, Esquire Franklin International Plaza 255 Alhambra Circle, Suite 100 Coral Gables, Florida 33134 Leonard Helfand, Esquire DHRS District XI Legal Counsel State Office Building 401 Northwest 2nd Avenue Miami, Florida 33128
