The Issue The issue for determination is whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in Division Of Administrative Hearings Case No. 87-5413; and whether, in the absence of such substantial justification, Petitioner is entitled to an award ofattorneys' fees and costs pursuant to Section 57.111, Florida Statutes, in connection with that previous administrative proceeding.
Findings Of Fact Petitioner is Mircea Albin Morariu, M.D. Respondent is the Department of Professional Regulation, the agency charged with regulation of physicians in the State of Florida. The parties stipulated that Petitioner is a resident of the State of Florida; that Petitioner is a "small business party"; and that there is no dispute as to the correctness or amount of fees and costs requested by Petitioner, the $15,000 maximum allowed under provisions of Section 57.111, Florida Statutes. Petitioner is a "prevailing small business party" with regard to Division Of Administrative Hearings Case No. 87-5413, because he was found to have committed only one of the four alleged violations set forth in the administrative complaint in that case, failure to maintain written records justifying the course of the patient's treatment. No appeal from the final order entered in Division Of Administrative Hearings Case No. 87-5413 has been taken and the time for filing such an appeal has expired. Respondent initiated administrative proceedingsagainst Petitioner in Division Of Administrative Hearings Case No. 87-5413 as the result of a complaint lodged with Respondent in September of 1986 by a former patient of Petitioner. The complainant, afflicted with long standing paralysis of one side of her body, had paid Petitioner $5,000 for functional electrical stimulation treatment of her paralyzed limbs and had not achieved the level of recovery which she felt had been promised to her by Petitioner; namely, that her paralyzed arm movement would improve by 25 percent and her paralyzed leg movement would improve by 50 percent. The complainant alleged that her condition had worsened as a result of the treatment. Following receipt of the patient's complaint, Respondent undertook an investigation. In that process, an investigator employed by Respondent interviewed the complainant, her husband and Petitioner. The investigator obtained the complainant's medical records and correspondence from Petitioner, as well as prior and subsequent medical records from complainant's doctors in the state of Indiana. This entire report was submitted to a board certified neurologist, Dr. Victor B. Robert, for an expert opinion as to the standard of medical care rendered by Petitioner. In expressing his expert opinion, Dr. Robert stated that he "was not familiar with this therapeutic modality and the records available do not provide a description or a rationality" for the treatment accorded the complainant by Petitioner. Robert also opined that the complainant's motor impairment was permanentand that such "neurological deficit cannot be improved by any therapeutic modality known to medical science." Robert further stated that it was misleading as well as unethical to make any promises regarding significant improvement in a patient with such a long standing neurological deficit; that Petitioner's standard of care would be subject to question if the complainant's allegations were true; that the complainant underwent several unnecessary diagnostic procedures; and that there could exist a pattern of abuse by Petitioner calling for further investigation. Dr. Robert's testimony was not credited at the final hearing in lieu of other more persuasive expert testimony. Respondent's entire investigative file, consisting of the affidavits of the patient and her husband, Petitioner's statements, the complainant's medical records and Dr. Robert's expert medical opinion, was provided to the members of a probable cause panel of the Board of Medicine several weeks in advance of the panel's meeting on August 21, 1987. At that meeting, the panel, after review and discussion of the materials provided them, determined that probable cause existed sufficient to support the filing of an administrative complaint against Petitioner. The administrative complaint was filed against Petitioner on August 26, 1987, as a result of the panel's probable cause finding. The administrative complaint contained four counts of alleged misconduct by Petitioner. Count I charged Petitioner with violation of Section 458.331(1)(t), Florida Statutes, through gross or repeated malpractice or failure to practice medicine withlevel of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Count II charged Petitioner with making deceptive, untrue, or fraudulent representations in the practice of medicine, a violation of Section 458.331(1)(k), Florida Statutes. Count III charged Petitioner with exercising influence on a patient for financial gain, a violation of Section of 458.331(1)(o), Florida Statutes. Count IV of the complaint contained the charge which Petitioner was later found to have committed; namely his failure to maintain written medical records justifying the course of medical treatment accorded the complainant, a violation of Section 458.331(n), Florida Statutes.
Findings Of Fact On June 5, 1985, the Department filed an administrative complaint against the Petitioner. That complaint alleged Petitioner had violated seven subsections of Section 458.331, Florida Statutes. The matter was not referred to the Division of Administrative Hearings for formal proceedings until July 10, 1987. The record does not explain the time delay which elapsed between the time of filing the administrative complaint and the time the matter was referred for hearing. On September 7, 1988, a formal hearing was conducted in connection with the matter. On November 16, 1988, a recommended order was entered which recommended the dismissal of all counts of the complaint. The basis for the recommendation was the Department's failure to prove by clear and convincing evidence the facts constituting the alleged violations. A ruling on a preliminary motion had determined that the Department was not entitled to compel the licensee to testify or provide evidence against himself. On February 18, 1989, the Board of Medicine (Board) entered a Final Order, DOAH Case No. 87-2896, which approved and adopted the recommended order, both as to the findings of fact and conclusions of law. The Board rejected all exceptions which had been filed by the Department. Petitioner is a "prevailing small business party" and is entitled to seek attorneys fees pursuant to Section 57.111, Florida Statutes. Petitioner has not sought fees on another basis. Petitioner filed his petition for fees within 60 days of becoming a prevailing party and has, therefore, timely asserted his claim for fees. The attorney fees and costs which Petitioner seeks are reasonable for the fees and costs incurred for all preparations in these proceedings (prehearing stipulation). The amount claimed to be due Petitioner exceeds $15,000. There are no special circumstances which would make the award of attorney's fees and costs unjust (prehearing stipulation). The administrative complaint which is the subject of this case was filed following a probable cause panel meeting which occurred on May 23, 1985. Present at that meeting were panel members Bass and Feinstein. Information presented to the members included an investigative report. Both members acknowledged that they had thoroughly reviewed the materials related to the allegations against Petitioner. After reviewing the materials, the probable cause panel recommended the filing of the administrative complaint. Included with the investigative report were the following documents: a uniform complaint form, dated October 8, 1984, based upon a letter, dated October 2, 1984, received from the Food and Drug Administration; a copy of a letter dated October 23, 1984, addressed to Petitioner from the investigator informing Petitioner of the pending investigation; a copy of a letter from an attorney on behalf of Petitioner (which letter referenced the Fountain of Life Medical Centers and suggested Petitioner had valid patient/doctor relationships with persons being treated); another letter from the attorney for Petitioner referring to procaine and identifying Petitioner as the staff physician for the clinic under investigation; and an affidavit from an investigator who had attempted to make an appointment to see a doctor at the clinic. The information noted in the investigative report contained alleged admissions made by Petitioner to the investigator. The purported admissions connected Petitioner to the Fountain of Life Medical Centers and the dispensing of the substance, procaine. The investigative file did not contain information as to whether procaine is a legend drug, the identity of any person who had allegedly received the substance from the Petitioner, copies of any medical records related to the dispensing of the substance, or any confirmation that the dispensing of the substance in the manner alleged, if true, would fall below the prevailing standard of practice observed by the medical community. The investigation conducted in this case was inadequate to fully clarify the factual issues prior to the probable cause hearing. The materials submitted to the probable cause panel did, however, create a reasonable basis for the panel's determination for reasons hereinafter discussed in the Conclusion of Law. Counsel for the Department was not present at the probable cause meeting during the discussion of the Petitioner's case. Legal opinions regarding the sufficiency of the factual materials or admissibility of the evidence related to the claims were not sought by the panel nor rendered unsolicited by the counsel for the Board (who was present).
Conclusions Having reviewed the Administrative Complaint and Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $3,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. Any check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, FL 32308 Filed March 26, 2015 11:09 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 2U day of Maca , 2015, aw, Elizdyeth’Dudgk{ Secretary y for H€ Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order, was served on the below-named persons by the method designated on this Debit Aer Cc ZL. , 2015. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, FL 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit Finance & Accounting (Electronic Mail) Revenue Management Unit (Electronic Mail) David Selby, Assistant General Counsel Louis F. Gerrard, President Office of the General Counsel Grace Manor at Lake Morton, LLC Agency for Health Care Administration c/o Mainstay Financial Services (Electronic Mail) 5578 Commercial Blvd. NW Winter Haven, FL 33880 (U.S. Mail) J. Davis Connor, Esq. Peterson & Myers, P.A. 225 East Lemon Street Lakeland, FL 33802-4628 (U.S. Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION Petitioner, . . CASE NO. 2013013450 vw a 2014002084 GRACE MANOR AT LAKE MORTON, LLC, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint : against the Respondent, Grace Manor at Lake Morton, LLC (“Respondent”), pursuant to Sections 120,569 and 120.87, Fla. Stat. (2013), and alleges: ‘This is an action against an assisted living facility (“ALF”) to impose a $2,000 fine for one State Class Il violation (Count 1) and a $ 1,000 fine for an uncorrected State Class TI violation (Count I). SS “JURISDICTIONAND VENUE ss— 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part II, and 429, Part I, Fla. Stat. (2013). 2, Venue lies pursuant to Florida Administrative Code (“F.A.C.”) Rule 28-106.207. 1 EXHIBIT - 1 a oemec eae rena nipnpintetineccpinat: tty uinepiman menttinie manent pasa pammemnat ety arr sec nmmpematest ean neem at tt CT BE PARTIES 3. The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of all applicable State statutes and rules governing ALFs pursuant to Chapters 408, Part IL, and 429, Part ], Fla, Stat., and Chapter 58A-5, F.A.C., respectively. 4,, Respondent operates a 50 bed ALF at 610 East Lime St, Lakeland, FL 33801, Standard license #5217. 5, Respondent was at all times material hereto.a licensed facility under the licensing authority of the Agency and was required to comply with all applicable rules and statutes, COUNT I - $2,000 CLASS I FINE (Case No. 2013013450; State Tag A0030: Resident Care - Rights & Facility Procedures) 6 The Agency re-alleges and incorporates paragraphs 1-5 asif fully set forth herein. 7. The Agency’s surveyor conducted an unannounced complaint investigation (CCR 2013008974) on 8 October, 2013, 8. The surveyor learned this information during the survey: _-a,-Based_on interviews and-a-record-reviews, the facility failed-to ensure that Resident #1,-an-85-—— Sanne year old man, with received appropriate medical care in a timely manner which led to delayed medical care and extreme continual pain. b. Phone interview with Staff ‘A’, a former med tech/caregiver, on 10/9/13 at about 4:40 pm. She stated that the last night that Resident #1 was sent to the hospital, Staff “B’ (another - ‘categiver) and she were working, They did their final rounds. Resident #1 came.out about 10:30 - i 11:30 pm and complained about a burning, like a hot rod was in his eye. She called the resident care coordinator (RCC) and told her what was going on. She asked the RCC if she could give him a i brand name medication for Acetaminophen that he had scheduled for later in the moming. The RCC said Staff “A? wasn't supposed to but she could just this one time. Staff ‘A stated Resident #1 was hurting. She could tell he was in pain by his demeanor, About 11:30 to 12:30 am he started vomiting when he was in the recliner. He. was in the recliner so they could keep an eye on him. She called the RCC again and she said just keep an eye on him and she would deal with him in the morning. The RCC told Staff ‘A’ that she knew the family would be upset if they sent him out because he had done this thing before. At 12:30 to 1:30 am it got worse and his breathing got worse, He was breathing funny. His vitals were going crazy. His blood pressure was 200 and something over 100 and something. His pulse was fast and oxygen saturation was low. His breathing was irregular. She called the RCC again and she said to call the home health company. The guy she spoke to at home health asked why did he need to come and she explained the situation and the vitals. He stated based on Resident #1's vitals he should be sent out to the hospital. She called the RCC again and told her what home health said and the RCC said "no " , to not send him out and she would deal with him in the morning. At 1:30 to 2:30 am he was panic screaming (like yelling). He said now I know what it feels like to die alone. He already had problems:with his left eye and it was white and lie could not see out of it but he.could see out of his tight eye. However, then he complained that he could not see ~ ~ them and they were Fight in front of him. She called the RCC again and she responded again that she - would deal with him in the moming. At 3:30 am he was puking but she could hear it gurgling back in his hings. He was.aspirating. She called the RCC and told her that she was sending this man out even if she had to be written up. He was throwing up and now he‘is aspirating. She stated OK do started to move him onto the stretcher. He couldn't stand. He had a stroke. Emergency medical services (EMS) and the emergency room doctor asked her why the resident was not sent to the hospital earlier, A friend who worked at the facility told her the next day that Resident #1 died at 6:45 am. c Phone interview with Staff ‘B’,a med tech/caregiver, on 10/9/13 at approximately 5:40 “am. She reported that on the night of the incident at 11:00 pm, Resident #1 complained that his eye hurt and he had a bad headache, Staff ‘A’ called the RCC and she said to go ahead and give the brand name medication for Acetaminophen he had scheduled at.some point during the next morning, In an hour he stated it was getting worse. Staff ‘A’ called the RCC and she stated he did this before and to keep an eye on him, They sat with Resident #1 throughout the night in the living room in front. Resident #1 would freak out if he could not see them. He stated he could not see them and they were right in front of his face. He said to please not leave him because he did not want to die alone. Staff ‘A’ called again and finally got permission to call 911 from the RCC about 2:00 to 3:00 am. Paramedics asked if leaning to the side was normal for him and they told them it was not normal. They asked if his face drooping was:normal and they said, "no." They did a stress test and he was weaker on one side. He fell to the'side when they stood him up and stated they thought he had a stroke when they took him out:on a stretcher. Staff ‘B’ stated she felt like Resident #1 should have went out to the hospital the first time Staff ‘“ called the RCC. Resident #1 stated he felt like a hot rod was stabbing through his eye. It was not normal for him to come out of his room and complain d. Interview with the RCC about Resident #1 on 10/8/13 at about 2:15 pm. She stated that Staff ‘A’ called her orice for Resident #1's headache and she asked Staff ‘A’ if he had anything she could give him for pain and Staff ‘A’ said a brand name medication for Acetaminophen. The RCC said, " well give him that." Staff‘A’ called back later and stated he was throwing up and she told Staff‘ A” to send him to the hospital. It started about 1:00 am and she did not know how long in between before Staff ‘A’ called the second time. She stated she did not remember exact times “because it happened almost a year ago. 7 San et ecngioeeanygmeninepe bier see mane nt egress nemsmmn enue on Sibuset einer arsine ' i t ; @. Review of the EMS report dated 4/30/13. It indicated that the stroke alert was called at 3:28 am and Resident #1 arrived at the hospital at 3:43 am. ) f. Review of the hospital Emergency Department Note - Phiysician final report dated 4/30/13. It noted that the physician spoke directly to the staff at the facility and was told that at 11:00 pm or so Resident #1 had severe pain behind his right eye. He walked out to the nursing — station to request help. Resident #1 sat down in a chair near the nutsing station and stayed there for the next few hours. Somewhere between 3:00 and 3:15 am Resident #1 became less responsive and vomited and developed slurred speech. Facility staff did not notice left sided weakness. At the hospital Resident #1 was diagnosed with intracerebral hemorrhage (a type of stroke where an artery bursts in the brain and causes bleeding in the brain). g. Death. The hospital death record indicated that the resident died at 7:25 am on 4/30/13. h. Interview with the RCC on 10/8/13 at about 2:40 pm. Stafflet them know if residents-are sick and then they contact the nurse (a home health nurse because the facility has no nursés) and she comes to evaluate. If the nutse states they need-to go out to hospital then they send them. If it's night time staff call her (the RCC) and then the nurse is called and the nurse still comes to assess. They and the nurse might say to go ahead and send out. i. Interview with the executive director (ED). The ED revealed that Resident #1 's family was adamant about not sending him out to the hospital (not specifically talking about this event, but Previous ones). ; . _ j. Review of the hospital Emergency Department Note ~ Nursing final report dated 4/30/13. It revealed that EMS reported that the family was not thrilled with the idea of the resident being transported to the hospital. cde esate aspen era ety tatoo so tenn tnsennnenntammpanma aea i i 1 i i i i | | | k. Review of the facility's medical emergencies policy. It was located on page 93 and 94 of its Assisted Living Policy and Procedure Manual. Section 1 indicated that the administrator should be. contacted immediately and section 2 indicated that the administrator makes the determination of the severity of the situation. Section 3 indicated that the community summons emergency medical services by calling 911 when the resident exhibits signs and symptoms of distress and /or emergency : condition, One example included was sudden onset of severe pain. Resident #1 had indicated to staff that he felt like a hot rod was stabbing through his eye but medical care was still delayed for hours. 9. Florida’s law regatding residents having the right to a safe and decent living environment free from abuse and neglect is stated as follows: B r : ; i 429.28 Resident bill of rights.— . (1) No resident of a facility shall be deprived of any civil or legal rights, | ‘ benefits, or privileges. guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States.as a resident of a facility. Every resident of a facility shall have the right to: (a) Live ina safe and decent living environment, free from abuse and neglect. Section 429.28, Fla. Stat. (2013) 10. In sum, the facility failed to ensure that Resident #1 was free from neglect, to wit, he did not __ receive timely and appropriate medical care which led to extreme continual pain because he first alerted staff between the 10:30 to 11:30 pm time frame on.4/29/13 that he was in extreme pain but, despite his, e. g., repeated complaints of extreme pain, panic yelling, expressing his fear of dying alone, vomiting, lack of vision, crazy vitals, aspirating, leaning to the side and drooping face, 911 was not notified until about 3:30 atv the next iiditiing, an inappropriate delay of several hours. 11. Respondent was cited fora Class Il violation, defined as follows: 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be _ Classified according to the nature of the violation and the gravity of its probable effect on clients. .» Violations shall be classified:on the written notice as follows: (b) Class “II” violations are those conditions or‘oceurrences related to the operation and maintenance of a provider or to the care of clients which the agency _ determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A’fine shall be levied notwithstanding the correction of the violation. Section 408.813, Fla, Stat. (2013) 12. Florida-law states as follows as regards the fine for an ALF for a Class II violation: 429.19 Violations; imposition of administrative fines; grounds.— (1) In addition to the requirements of part II of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the actions of any person subject to level 2 background screening under s. 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. (2) Each violation of this part and adopted rules shall be classified ‘according to the nature of the violation and the gravity of its probable efféct on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: {b) Class “II” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation i inan n amount not less than $1,000 and een HOE ENCE $5,000 Lor CAC Via data (3) For purposes of this section, in determining if a penalty is.to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner or administrator to correct violations. “~(e) ~~ Any previous violations: d)- The financial benefit to the facility of committing or continuing the violation, (e) The licensed capacity of the facility. Section 429.19, Fla. Stat, (2013) smear mre erin nites teins ingest cnn ee ne ene WHEREFORE, the Agency intends to-impose a $2,000 fine agninst Respondent pursuant to Sections 408.813 and 429, 19, Fla, Stat. (2013). COUNT Il - $1,000 UNCORRECTED CLASS III FINE (Case No. 2014002084; State Tag A0010 — Admissions —-Continued Residency) 13. The Agency re-alleges and incorporates paragraphs | - 5 as if fully set forth herein. fa survey - 11/21/13 (paras 14 —19) 14. A complaint investigation (CCR#2013012071) was conducted on 21 November, 2013. 15. Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for Resident #1, an 89 year old female receiving hospice care and services. A 11/21/13 review of her records showed that although she was retained at the facility on | hospice care it failed to develop and implement an interdisciplinary care plan developed by hospice. in coordination with her and/or another responsible party in order to meet her needs. 16. Florida law provides as follows as regards an ALF resident receiving hospice services: 58A-5.0181 Admission Procedures, “Appropriateness “of Placement and Continued Residency Criteria. (4) CONTINUED RESIDENCY. Except as follows in paragtaphs (a) through (e) of this subsection, criteria for continued residency in any licensed facility shall be the same as the criteria for admission. As part of the continued residency criteria, a resident must have a face-to-face medical examination by a licensed health. care provider at least every 3 years after the initial assessment, or after a significant change, whichever comes first. A significant change is defined in Rule 58A-5.0131, F.A.C. The results of the examination must be recorded on AHCA Form 1823, which is incorporated by reference in paragraph (2)(b) of this rule. The form must be completed in accordance with that paragraph. After the effective date of this rule, providers shall have up to 12 months to comply with this requirement. ©) A terminally ill resident who no longer meets the criteria for continued residency may continue to reside in the facility if the following conditions are met: 1. The resident qualifies for, is admitted to, and consents to the services of.a licensed 8 hospice which coordinates and ensures the provision of any additional care and . services that may be needed; 2. Continued residency is agreeable to the resident and the facility; 3, An interdisciplinary care plan is developed and implemented by a licensed hospice in consultation with the facility. Facility staff may provide any nursing service permitted under the facility’s license and total help with the activities of daily living; and : 4. Documentation of the requirements of this paragraph is maintained in the resident's file. Rule 58A-5.0181, F.A.C, | 17. Insum, the facility failed to develop and implement Resident #1’s interdisciplinary plan for hospice care and services. | 18. Petitioner cited Respondent for a Class III violation, defined as follows:. 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients, ~ .,. Violations shall be classified on the written notice as follows: (c) Class “IIT” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which emotional health, safety, or security of clients, other than class J or class II violations. The agency shall impose an administrative fine as provided in this section for a cited class III violation, A citation for a class TII violation must specify the time within which the violation is required tobe corrected, If a class III violation is corrected within the time specified, a fine may not be imposed, Section 408.813, Fla. Stat. (2013) 19. By letter dated 9 December, 2013, Respondent was notified of a mandatory correction date of 30 days from the letter’s 9 December date, to wit, on or about 9 January, 2014. 2% Survey - 1/31/14 (paras 20 - 25) 20. A revisit survey was conducted on 31 January, 2014, to check on the deficiencies cited during 9 the first survey on 21 November, 2013. 21, a, Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for resident #1, an 89 year old female receiving hospice care and services, . b. An 11/21/13 review of Resident #1’s records showed that although she was retained at the facility on hospice care it failed to develop and implement an interdisciplinary care plan with, hospice in coordination with her and/or another responsible party to meet her needs. c. During the revisit survey an interdisciplinary care plan was still not available for her. The facility had a hospice ‘Interdisciplinary Care Plans’ form which was a blank form with the words "Interdiciplinary Care Plans" hand written at the top of the page labeled as a "HHA Plan of Care and Note", The rest of the page corisisted of a check list to indicate the information for all areas pertaining to pain level, mental status, bathing, grooming, dressing, nutrition, activity tolerance and transfer. In sum, the form was empty in content and did not meet the intent of the requirement. d. During a staff interview the surveyor determined that they did not have a good discussion that they were going to develop their own form for this purpose. 22. Insum, the facility failed to correct the prior deficiency by still not having developed and implemented the required interdisciplinary care plan for Resident #1 who was still receiving hospice care and services. 23. Florida law regarding an ALF resident receiving hospice services is cited in paragraph 16. 24. Petitioner cited Respondent for a Class III violation, defined in paragraph 18. 10 25. The'same constitutes an uncorrected Class III violation with the fine determined as follows: WHEREFORE, the Agency intends to impose a $1,000 fine against Respondent, an ALF 429,19 - Violations; imposition of adminisirative fines; grounds.— (1) Inaddition to the requirements of part II of chapter 408, the agency “shall impose an administrative fine in the manner provided:in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility ... - (2) Each violation of this part:and adopted rules shall be classified - according to the nature of the violation and the gravity ofits probable: effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: (c) Class “III” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class III violation in an amount not less than $500 and not exceeding $1,000 for each violation. Section 429.19, Fla. Stat. (2012) in the State of Florida, pursuant to § 429,19 (2) (c), Fla. Stat. (2013). +k Submitted this @ day of April, 2014. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION 525 Mirror Lake Dr. N., Ste 330 Ph: (727) 552-1942 Fax: -1440 david.selby@ahca.myflorida.com _ By: z Q Edwin D. Selby Assistant General Counsel Fla. Bar No, 262587 41 | | i | 4 Le i j H 4 / L i : i L i f i f St Petersburg, FL 33701 5 i t i * : i i | i
