The Issue The issues presented for decision herein are whether or not Petitioner's application for re-licensure as an Adult Congregate Living Facilities (ACLF), should be approved.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Ida Belle Hill Retirement Home and Ida Belle Hill Boarding Home are adult congregate living facilities (ACLF), located at 5218 and 5512 Mayo Street, Hollywood, Florida. Adult facilities are licensed by Respondent. The licenses on both facilities expired November 19, 1985, and by letter dated November 25, 1985, the applications for re-licensure were denied. Annual surveys were made of the facilities by Respondent's inspector for the Office of Licensure and Certification, Phillip Drabick. Drabick's first inspection of the facilities was on July 29, 1985, with a follow-up visit on November 5, 1985. The parties stipulated that Petitioner's application for re-licensure as an ACLF was timely made and accepted by the Respondent and that a primie facie case had been established by Petitioner as relates to the application for re-licensure. (TR 12). Based on that stipulation, Respondent has an aversion of proving that Petitioner is not entitled to re-licensure as an ACLF. The parties stipulated that both cases should be consolidated for hearing. Petitioner stipulated that the conditions and deficiencies noted by Respondent, Office of Licensure and Certification, on March 5, 1985, were extant and did exist at that time. (TR 54). Petitioner was made aware of all deficiencies at the times they were observed by Respondent. During those inspections, the following conditions were found and brought to Respondent's attention on both facilities as follows: The facility owner, Ida Belle Hill, served as representative payee and has not filed a surety bond with the Department (HRS) in an amount equal to twice the average monthly aggregate income of personal funds due residents. (TR 61-63, 75). The facility does not keep complete and accurate records of personal funds of residents. (TR 63, 64, 75 and 77). The facility does not maintain a current admissions and discharge record of all residents, including temporary emergency placement. (TR 35, 37 and 60). Up to date the other records that were not kept on file for residents who received supervision of self-administered medications. (TR 64, 65 and 78). Services delivered by third party contractors, such as doctors, dentists and other health care professionals are not documented and placed in each resident's medical records. (TR 65, 78). The facility does not maintain a record of personnel policies including employment policies and work assignments for each position. (TR 63- 66, 67 and 78). The facility does not maintain a written work schedule for employees including provision for relief staff and coverage for vacations, sick leave and other emergencies. (TR 66, 78). The facility does not maintain time sheets for employees. (TR 67, 79). The facility does not have one staff member within the facility at all times who has certification in an approved first aid course. (TR 66, 67, 68, 79 and 80). The facility does not have job descriptions for staff who are responsible for providing personal care to residents. (TR 69, 80). The facility does not maintain the required medical form for residents admitted from other state institutions such as South Florida State Hospital. (TR 69, 80). The facilities house residents that have not been examined by a licensed physician or licensed nurse practitioner within sixty days before admission or within thirty days following admissions. Additionally, the facility does not maintain a completed, signed health assessment for ACLF facilities and the resident's files for each resident. (TR 60, 61, 80 and 81). The facility does not maintain written policies, procedures for assisting residents in making appointments to appropriate medical, dental, nursing or mental health services as is necessary for the care of its residents and for providing all transportation to and from the centers which provide the provision of the required services. (TR 69, 70, 80 and 81). THE FOLLOWING DEFICIENCIES WERE FOUND TO EXIST AND WERE BROUGHT TO PETITIONER'S ATTENTION AS RELATES TO IDA BELLE HILL BOARDING HOME. The facility does not have food service policies and procedures for providing proper nutritional care for residents whether provided by the facility or a third party. (TR 70). Dietary allowances are not met by offering a variety of foods adapted to food habits, preference and physical abilities of residents and prepared by the use of standardized recipes. (TR 70, 71). The facility does not maintain an up to date diet manual, approved by HRS, to use as a standard reference in planning regular and therapeutic diets. (TR 71). Menus are not corrected as served and maintained on file for the required six months. (TR 71, 72). The facility does not maintain, at the premises, a one week supply of non-perishable food based on the number of weekly meals that the facility has contracted to serve. (TR 72).
Recommendation Based on the foregoing findings of fact and conclusions of law including the fact that the violations noted herein are numerous and continuing over an extended period of time, notwithstanding efforts by Respondent to gain compliance by Petitioner, finds that Respondent has not established compliance with Chapter 400, Part 2, Florida Statutes, respecting the entitlement to re- licensure as adult congregate living facilities. Based thereon, it is RECOMMENDED: That a Final Order be entered herein by the Department of Health and Rehabilitative Services, Office of Licensure and Certification, denying Petitioner's application for re-licensure as an adult congregate living facilities for Ida Belle Hill Boarding Home and Ida Belle Retirement Home situated at 5512 and 5218 Mayo Street, Hollywood, Florida, 33021. Recommended this 21st day of October, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1986.
Findings Of Fact Respondent, L. D. Terry, operates a thirty-bed adult congregate living facility under the name of Golden Paradise at 1200 Old Dixie Highway, Delray Beach, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. On June 9, 1986 James Valinoti, an HRS inspector, conducted a routine annual license renewal inspection of respondent's facility in the presence of the facility's administrator, Katherine Stevens. The inspection focused on all aspects of the facility's operations, including safety, physical plant, recordkeeping and sanitation. It was Valinoti's purpose to determine if the facility was in compliance with various requirements of Chapter 10A-5, Florida Administrative Code (1987) During the course of his inspection, Valinoti observed the following deficiencies: The facility did not document and place in its records the services delivered by a third party contractor (nurse) as required by Rule 10A-5.024(1)(a)4., FAC. The facility employed three or more staff but did not maintain a record of personnel policies, including state- ments of work assignments for each position as required by Rule 10A-5.024 (1)(a)5., FAC. The facility did not maintain a time sheet for all employees as required by Rule 10A-5.024(1)(a)7., FAC. The respondent failed to assure that there was at least one staff member within the facility at all times who had a certification in an approved first aid course and that the staff was free of communicable diseases as required by Rule 10A-5.019(5)(f), FAC. The facility failed to furnish each staff member with a copy of written policies governing conditions of employment including the work assign- ments of his position as required by Rule 10A-5.019(5)(h), FAC. The resident contract did not contain a refund policy if transfer of ownership, closing of facility or resident discharge should occur as required by Rule 15.024(1)(b)1., g., FAC. The facility failed to note in the residents' records the disposition of drugs after a resident had left the facility as required by Rule 10A- 5.0182(3)(a)7., FAC. The facility had no policies or pro- cedures for assisting residents in the making of appointments or providing transportation to and from appropriate medical, dental, nursing or mental health services as required by Rule 10A-5.0182(8) and (9), FAC. The facility did not participate in continuing in-service education on an annual basis at a minimum as required by Rule 10A-5.020(1)(c), FAC. The dietary allowances were not met offering a variety of foods adapted to the food habits, preferences and physical abilities of the residents, and prepared by the use of standardized recipes as required by Rule 10A-5.020 (1)(g), FAC. There was evidence of rodent dropping in the food storage room in violation of Rule 10A-5.020(1)(n)1. and 5., FAC. The facility did not assure that food service employees were free of communicable disease as required by Rule 10A-5.020(1)(n)15., FAC. Linoleum in the facility was peeling causing a tripping hazard and sinks and toilets were rusted in violation of Rule 10A-5.022(1)(a),(c), and (g), FAC. With the exception of item (a), which was unclassified, all deficiencies were Class III violations. After the inspection was completed, Valinoti discussed the deficiencies with the administrator and suggested ways to correct them. A letter was then prepared by the HRS area supervisor on July 23, 1986 and mailed the same date to Terry with a copy of the Classification of Deficiencies. That document provides a description of each deficiency, the class of deficiency and the date by which the deficiency must be corrected. Except for a requirement that the deficiency pertaining to rodent droppings be corrected immediately, Terry was given thirty days, or to August 23, 1986, in which to correct the cited deficiencies. Terry acknowledged he received a copy of the letter and attachments. On September 24, 1986 Valinoti reinspected respondent's facility. He found that none of the items had been fully correct. By letter dated September 29, 1986 HRS advised Terry of its findings and warned him that a "recommendation for sanction" would be made. It advised him further that another inspection would be made after October 29, 1986. On October 30, 1986 Valinoti made a second follow-up visit to respondent's facility. Valinoti found that all items had been corrected except item (j). The results of his inspection were reduced to a written report on November 13, 1986, a copy of which was sent to Terry. A year later, an administrative complaint against respondent was issued by HRS. Terry acknowledged, through admissions or testimony at hearing, that most of the allegations were correct but offered mitigating testimony as to why certain corrections were not made on a timely basis. When he purchased his facility in 1982, it was in a state of disrepair through neglect by the previous owner. Since then, he has attempted to upgrade the facility through a series of repairs and renovations. He currently has nineteen residents, most of whom were referred from a nearby mental health center. A mental patient is more difficult to care for, and this type of patient is prone to tear up furniture and equipment. Terry pointed out that he has only three employees, and they fully understand their duties and responsibilities. For this reason, he did not have documentation outlining their job assignments. When the June 9 inspection was made, Terry contended that HRS was in the process of implementing new rules, which he did not identify, and which he claims he did not understand. As evidence of his good faith, Terry pointed to the fact that all deficiencies except one were corrected by October 30, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of twelve Class III violations and one unclassified violation and that he be assessed a $1,250 civil fine to be paid within thirty days after the date of the final order entered in this matter. DONE AND ORDERED this 5th day of October, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 5th day of October, 1989. COPIES FURNISHED: Leonard T. Helfand, Esquire North Tower, Room 526 401 Northwest Second Avenue Miami, Florida 33128 John W. Carroll, Esquire Post Office Box 31794 Palm Beach Gardens, Florida 33410 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented for decision herein is whether or not Petitioner's facility meets the standards and qualifications to be eligible for licensure as an Adult Congregate Living Facility (ACLF).
Findings Of Fact Petitioner is the owner/operator of Old Cutler Retirement Home (Old Cutler) which is located at 19720 Old Cutler Road in Miami, Florida. Old Cutler has been functioning as an ACLF since at least 1981 and has been the subject of citations for violations of the fire and health safety codes which Respondent enforce. (Respondent's Dade County Health Report dated June 9, 1981.) On October 7, 1985, Respondent conducted a survey of Old Cutler and found the following deficiencies: the income and expense records for the facility were not available for review. services delivered for the facility by a third party contractor were not documented and placed in the residents' records. the facility did not have personnel policies and work assignments. the facility failed to provide assurances that (1) at least one staff member was on duty at all times who was certified in an approved first aid course; (2) staff that provided hygiene assistance was properly trained, and (3) staff was free of communicable disease. the facility did not have written job descriptions available for review. the employees were not furnished written policies governing conditions of employment. full bedside rails were observed in one resident's bed room. notations concerning drug disposition of a former resident's medication were not entered into the resident's file. the facility did not have policies and procedures to insure minimal leisure services for residents. the facility did not have procedures for assisting residents in making medical and related health appointments. residents' bedrooms did not have adequate space for hanging clothes. the facility did not have an adequate number of bathrooms for the residents. furniture at the facility was not kept in good repair. the facility smelled of a strong urine odor. the facility grounds were cluttered with debris and garden/construction equipment. the facility did not have a written main- tenance and housekeeping plan. Food Service irregularities (observed on October 7, 1985): the facility did not have food service procedures to provide for resident's nutri- tional care. the employee designated responsible for providing food service failed to demonstrate proper training of food service personnel purchasing sufficient food, (3) food service coordinated with other services, (4) duties were performed in a safe and sanitary manner, and (5) a knowledge of food that meets regular diets. the therapeutic diets did not meet the residents nutritional needs. there was no documentation of standardized recipes. menus were not planned, dated or posted as required. a week's supply of food was not on hand at the facility. food was not served at a safe, palatable temperature, as example, ambrosia fruit salad was kept and served at room temperature. food service was not properly carried out and the service was unsanitary in that spoiled and rotten food was stored in the refrigerator; the sinks and shelves were soiled, greasy and coated with debris; food was improperly thawed with standing hot water; hair restraints were not used; and at least one food service employee was observed smoking while preparing food. Additionally, on October 7, 1985, the laundry area did not provide the required one hour flame separation from the remainder of the facility. Also, the following fire safety irregularities were noted during the October 1985 survey: a manually operated fire alarm system with activating handles at each exit were not provided. smoke detectors powered by the electric current and interconnected to the fire alarm system was not provided. reports were not provided showing that the fire alarm system was tested quarterly. two means of egress are not provided for rooms 1 and 6. twenty-minute fire rated doors are not provided at all residents' doors. a commercial hood vented to the outside with an automatic extinguishing system is not provided. a key operated lock from the inside appears on the door of Room No. 13. there are obstructions in front of egress doors in room 3 and the dining area. the electric source supply to emergency lighting is provided by an extension cord. Petitioner has placed a mobile home immediately alongside the main facility at Old Cutler and the mobile home is situated closer than ten (10) feet from all sides of Old Cutler. The curtains, drapes, interior walls and ceilings of the mobile home do not provide either the requisite flame spread or are not flame proof as required. The mobile home is not equipped with approved smoke detectors in each room and the east/west end exits are either blocked or difficult to egress. Finally, there are no approved steps at the east exit of the mobile home. These conditions have existed in the mobile home since at least April 1981 and Petitioner has failed to take any corrective action to bring the above-noted irregularities into compliance (Respondent Exhibit 5). Respondent sent its staff along with members of the Ombudsman Council to again survey Petitioner's facility on March 9, 1987. As of that date, Petitioner has not shown any intent to correct the numerous deficiencies noted herein. Additionally, Petitioner advised Human Services Program Supervisor Alvin Delaney that she did not intend to bring her facility into compliance. As noted in the Appearances section of this Recommended Order, Petitioner did not appear at the hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: Respondent enter a Final Order denying Petitioner's application for licensure as an Adult Congregate Living Facility and cancel the conditional license which was issued to Petitioner. RECOMMENDED this 2nd day of April 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 2nd day of April 1987.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 2330047. Respondent’s license authorizes Respondent to operate a public food service establishment known as La Segunda Bodegita del Medio at 833 Southwest 29th Avenue, Unit 3, Miami, Florida 33135 (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Pedro Ynigo was an experienced and appropriately trained investigator employed by Petitioner as a Senior Sanitation and Safety Specialist. Mr. Ynigo’s job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Mr. Ynigo performed two routine inspections of Respondent’s establishment during the times material to this proceeding. The initial inspection was on December 6, 2004. The follow-up inspection was on January 11, 2005. The initial inspection listed a series of violations and gave Respondent until January 6, 2005,3 to correct each deficiency. The follow-up inspection determined that the following deficiencies, which had been cited in the initial inspection, had not been corrected. Each violation is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non-critical violation is one that does not rise to the level of a critical violation. Petitioner established that on January 11, 2005, Respondent was guilty of three critical violations and three non-critical violations. The three critical violations were as follows: Respondent’s food manager did not have a food management certificate. At the times of the inspections, Respondent’s food managers were Ormundo and Claudia Roque. Neither Mr. or Mrs. Roque had received a food management certificate. The failure of Respondent’s food managers to have his or her food management certificate constituted a violation of Section 509.039, Florida Statutes, and Florida Administrative Code Rule 61C- 4.023(1) as alleged in Paragraph 5 of Petitioner’s Administrative Complaint. Respondent could not provide proof that its employees had undergone training. This inability to produce proof of employee training constituted a violation of Section 509.049, Florida Statutes, as alleged in Paragraph 6 of Petitioner’s Administrative Complaint. Respondent’s facility had no hot water in the toilet room hand sink. The lack of hot water in the toilet room sink constituted a violation of Section 5- 202.12 of the Food Code, as alleged by Paragraph 1, of Petitioner’s Administrative Complaint. The three non-critical violations were as follows: There was no backflow preventer on the hose bibb over the mop sink. The failure to have the required backflow preventer constituted a violation of Section 5-203.14 of the Food Code as alleged by Paragraph 2 of Petitioner’s Administrative Code. The mechanical ventilation in the toilet room was not functioning. The absence of required ventilation in the toilet room constituted a violation of Florida Administrative Code 6-304.11, as alleged in Paragraph 3 of Petitioner’s Administrative Complaint. Respondent had constructed an additional seating area in its facility without submitting plans for the additional seating to Petitioner for its review. The failure to submit the plans constituted a violation of Florida Administrative Code 61C-1.002(5)(B) as alleged in Paragraph 4 of Petitioner’s Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in paragraphs 1 through 6; disciplining Respondent for those violations by imposing a fine in the total amount of $2,600.00; and requiring Respondent's majority owner to attend, at his or her own expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 9th day of January, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 9th day of January, 2006.
The Issue Whether or not Petitioner's license to operate Jennifer's Adult Care should be renewed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant facts are found. Jennifer Cason is the owner/operator of Jennifer's Adult Care. Jennifer's Adult Care is an adult congregate living facility (ACLF) situated at 1022 13th Avenue South in St. Petersburg, Florida. Petitioner's ACLF license expired by its terms on February 8, 1989. Petitioner's license renewal application was denied by the Respondent by letter dated May 25, 1989. Petitioner is the subject of a confirmed report of abuse dated October 19, 1988 confirming the exploitation of C.C. a resident in Petitioner's ACLF. Petitioner was advised that she could challenge the confirmed classification if she considered that the classification was inaccurate or that it should otherwise be amended or expunged. Petitioner failed to challenge the report. On October 21, 1988 Respondent imposed a moratorium on admissions at Petitioner's ACLF. The census at that time was eight residents. That moratorium has not been lifted and therefore remains in effect at this time. As of October 2, 1990, Petitioner has not requested an exemption of the confirmed abuse report to be qualified eligible to work with disabled adults or aged persons. Petitioner's ACLF has a history of deficiencies based on surveys dating from its inception. As example, Mrs. Diane Cruz, a human services surveyor specialist who has been employed by Respondent for more than eleven years conducted a survey of Petitioner's ACLF on May 17, 1988. As a result of that survey, the following deficiencies were noted: (a) The staff's time sheets were not posted or available for review; (b) the facility did not provide adequate staff and services appropriate to the needs of the residents, to wit: one resident required catheter care and there was either no staff person or other qualified third party provider available to provide the needed catheter care; (c) the food service staff was not knowledgeable regarding purchasing sufficient quantities of essential food, proper sanitary conditions necessary for safe food preparation and food types that meet the minimum requirements for a regular diet and (d) the staff person responsible for the supervision of self-medication was not trained. The deficiency relating to the lack of staff training and the supervision of self-medication was a repeat deficiency. Petitioner was allowed through June 17, 1988 to comply with the agreed corrective action plans. By July 18, 1988 most of the items cited as deficiencies were corrected however, Petitioner failed to correct two deficiencies relating to admission criteria and resident standards including (a) one resident's health assessment had not been completed more than 60 days prior to admission to the facility and five residents who were admitted to the facility for more than 30 days did not have a health assessment on file. Both of these deficiencies were corrected on October 5, 1988. Petitioner was also cited for certain deficiencies in the area of the physical plant in that (a) there was an inoperable ceiling light in Room 2; (b) there was no floor under the tub in the first floor corridor bath; (c) there were no non-slip safety devices in the tub of the upstairs corridor bath; (d) there was a hole in the ceiling at the south end of the first floor corridor and (e) the corners of the paneling in the first floor sitting room were broken off. Petitioner was allowed through June 17, 1988 to correct these deficiencies. As of July 18, items (a), (b), and (c) were corrected, however, items (d) and (e) remained uncorrected and were not in compliance until October 5, 1988. John C. Morton is Respondent's human services program director. He has been employed by the agency in excess of 11 years having served in his current position for approximately 3 1/2 years. As part of Morton's duties, he reviews survey reports, schedule surveys and respond to complaints received regarding ACLFs. Morton is familiar with Petitioner's facility from his review of survey findings and staff discussions. Morton prepared a deficiency report dated October 20, 1988 issued to Petitioner based on information he received from Respondent's office of adult protective services regarding a resident that Petitioner left in sole charge of Petitioner's ACLF. The resident that was left in charge was not trained to care for the residents of Petitioner's ACLF. As a result of that report, Morton cited Petitioner for failing to provide at least one staff member within the facility at all times; failure to provide sufficient staff to meet the needs of residents and leaving a resident in sole charge of other residents. The moratorium on admissions was issued effective October 21, 1988, based on that report. Mary Cook is employed by Respondent as a public health nutrition consultant. Ms. Cook has been so employed in excess of three years. She is familiar with Petitioner's facility having surveyed it on several occasions during the last three years. On January 23, 1989, Ms. Cook conducted a follow-up survey to determine whether Petitioner was in compliance with the moratorium. Following her review of the staffing patterns as listed on work schedules provided her, Petitioner listed only one staff person to work for the entire day on Sunday. However, when Ms. Cook arrived at the facility, two staff members were present. Upon inquiry, Ms. Cook was able to determine that the staff person who was present but who was not listed as working according to the schedule, also indicated that she was on duty at another area ACLF, Anita's Personal Care. Ms. Cook also participated in a survey conducted at Petitioner's facility on April 6 and 14, 1989. As a result of that survey, Petitioner was cited with deficiencies of minimum staffing standards based on the following: Several residents were being utilized as staff members to provide services to other residents including transportation, housekeeping and personal services; the facility did not have trained staff present at the facility necessary to supervise the administration of medication; (c) insulin was injected into one resident by a staff member who is not licensed to administer such medications; and (d) staff did not consistently document the residents deviation from normal food intake. Petitioner acknowledged receipt of FPSS Report No. 88-075890. Petitioner also admitted that she did not send a written request to contest the confirmed report nor has she sought an exemption to be qualified to work with disabled adults or aged persons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's renewal application for licensure as an adult congregate living facility and cancel Petitioner's conditional license for that facility. DONE and ENTERED this 10th day of December, 1990, in Tallahassee, Florida. Copies furnished to: Paula M. Kandel, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, FL 33614 William P. Murphy, Esquire 1500 Morgan Street Tampa, FL 33602 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1990.
The Issue Whether respondent should be administratively fined $500.00 for allegedly operating an Adult Congregate Living Facility without obtaining a license in violation of Section 400.407(1) Florida Statutes (1981).
Findings Of Fact Respondent, Edith Bartholomew is licensed to operate a boarding house in her home located at 201 Gould Road, Dade City, Florida. (Testimony of Cruz, R-1.) On March 24, 1982, Dr. Frederick Timmerman, Chairman of the Long Term Care Ombudsman Committee, and Diane Cruz, Adult Congregate Living Facility Licensure Specialist, inspected respondent's boarding home. Six residents, unrelated to respondent, were receiving meals, care, and lodging at respondent's home. Five residents were present during the inspection. Dr. Timmerman talked with each patient for the purpose of determining their physical and mental condition and the kind and level of physical services provided them. Only one of the five residents was capable of caring for herself during an emergency, the other four were incapable of taking care of themselves during an emergency and required physical services beyond room and board. (Testimony of Timmerman, Cruz.) Respondent explained that she kept the residents' medication locked in a kitchen cabinet. At mealtime, she would retrieve their medications from the cabinet and distribute them to the residents making sure they took the correct amount. (Testimony of Timmerman.) Respondent also admitted that she assisted her residents in bathing. The residents confirmed to Dr. Timmerman that she helped them bathe. There is conflicting evidence on whether the residents are capable of caring for themselves during emergencies, whether respondent dispenses medications to them, and whether she helps them to bathe. The testimony of Dr. Timmerman is considered the most credible and worthy of belief. He is a professional physician with no discernable bias or interest in the outcome of this proceeding. Dr. Timmerman told respondent to apply for an Adult Congregate Living Facility License, a request that had previously been made by other Department personnel. Respondent declined, responding that it involved too much paperwork. (Testimony of Timmerman.) Respondent has consistently operated a home which furnishes excellent care and services to its residents. For a reasonable fee, she provides food, lodging, personal services, and loving care to the elderly people who reside there. Department officials are convinced that she provides a valuable and essential service; they have even recommended that older persons be placed in her facility. She has always been courteous and cooperative with Department personnel. (Testimony of Cruz, Timmerman.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be fined $500.00. DONE and RECOMMENDED this 10th day of November, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1982.
Findings Of Fact At all times pertinent to the issues herein, HRS had jurisdiction over Respondent, which lawfully operates Hillhaven Convalescent Center, a nursing home facility in Sarasota, Florida. At all times pertinent hereto, the patient census at Hillhaven Convalescent Center exceeded 61. During the period July 13 through 15, 1982, an inspector employed by HRS conducted a survey of Respondent's facility. Among several deficiencies found, all of but one of which were corrected, was one indicating that the duties of the individual hired by Respondent as food services supervisor regularly included food preparation. The individual in question spent 24 hours of a 40 hour workweek as a full time cook. This deficiency was noted on the inspection report and brought to the attention of the provider's representative. A follow-up inspection of the facility was conducted by HRS representatives on February 15 through 17, 1983, at which time it was noted that the prior noticed deficiency had not been corrected. Though the number of hours the food services supervisor cooked had been reduced to 16 per 40 hour workweek, inspectors concluded this was still unsatisfactory and again cited the facility in the report for this as well as other deficiencies in the social services area. In a follow-up inspection on April 7, 1983, the inspector again found that the dietary services supervisor was acting as a cook for 16 or more hours per week. This deficiency was in addition to the continuing social services deficiencies which Respondent admits also continued. Hardy C. Kinney, a nutrition specialist with HRS and one of the individuals involved in the development of the agency's rules regarding food service which are allegedly violated here, indicated that as long as approximately six years ago, a committee was formulated within HRS to develop rules in the area of institutional food services such as here. The committee's concerns were to insure that the food service supervisor be a well trained individual whose job would be to consider the therapeutic nutritional needs of the patients--not to prepare and serve food. It was the feeling of the committee members, garnered from observations of other facilities where the supervisor does both, that when the food service supervisor is cooking and serving, he or she does not have the time to devote to proper patient care. There is a close relationship between food and diet and the welfare of the patient. When a patient is admitted to the facility, the physician writes that patient's nutritional orders. There is some variance permitted for taste and texture changes in the diet to make the food more interesting to the patient. Experience has shown that when the food is more interesting and attractive, the patient takes it better and thereby benefits from eating. As a result, the supervisor needs to talk with patients to determine the patients' preferences as to what foods they like and how they like it cooked. He or she also needs to spend the available work time working out strategies to meet the nutritional needs of the patients and supervising the procuring, receiving and storing of food. In short, the intent of the committee was to minimize the number of distractions the supervisor had to deal with as a nutritionist so as to promote proper patient food care. Mr. Kinney indicated the idea of the committee which developed the rule in question was not to block totally the participation of the supervisor from food preparation in emergency situations. However, it was most definitely the intent of the rule drafters that the food preparation and service was not to be even a minuscule portion of the supervisor's duties, except for emergencies. According to Mr. Kinney, even if a food services supervisor works one hour per week in a nonemergency situation, if this requirement is written into the job description, or is accomplished as a routine task on a recurring basis, the agency considers it a primary duty which is prohibited by the rule in question. It is pertinent to note here that in the instant case, the inspectors were not in any way contending that the rule violation resulted in a diminishment of patient care. To the contrary, Mr. Mitchell, the then incumbent food services supervisor, had, in general, done all that was required. He was not able to accomplish it all in the normal work time, however. His work schedule during the period December 10, 1982, to February 24, 1983, was as follows: Dec. 10-16: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Dec. 17-23: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Dec. 24-30: 16 hrs. cook; 16 hrs. off; 16 hrs. supervise = 50 percent cook Dec. 31-Jan. 6: 16 hrs. cook; 24 hrs. off; 16 hrs. supervise = 50 percent cook Jan. 7-13: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Jan. 26-27: 8 hrs. cook; 8 hrs. supervise = 50 percent cook Jan. 28-Feb. 3: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Feb. 4-10: 32 hrs. cook; 8 hrs. off; 16 hrs. supervise = 66 percent cook Feb. 11-17: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Feb. 18-24: 32 hrs. cook; 8 hrs. off; 16 hrs. supervise = 66 percent cook From the above, it can readily be seen that during the period in question, prior to and just subsequent to the first inspection, the food services supervisor spent between 50 and 66 percent of his time in food preparation and service.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That Respondent be fined $100 for the violation alleged in the administrative complaint dated April 22, 1983, and $100 each for the violations alleged in Paragraphs (3)(b), (c) and (d) in the administrative complaint dated June 16, 1983, for a total of $400. RECOMMENDED this 3rd day of November, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1983. COPIES FURNISHED: Robert P. Daniti, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Room 406 Tallahassee, Florida 32301 Stephen H. Durant, Esquire 3000 Independent Square Jacksonville, Florida 32202 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
