Findings Of Fact Petitioner Department of Health and Rehabilitative Services (hereinafter the Department), filed an Administrative Complaint alleging that Respondent, The Villa Cabana, Inc. (hereinafter Villa Cabana), violated minimum licensing standards for an Adult Congregate Living Facility in the following manner: The Respondent failed to assure, and have available documentation, that each person employed by the facility, who may come into contact with potentially infectious materials is trained in infection control procedures for blood and other bodily fluids. It was further alleged that the deficiency was found to exist during the surveys completed on July 31, 1989 and July 18, 1990. By letter dated January 5, 1991, the administrator for Villa Cabana disputed the allegations set forth in the Administrative Complaint and requested a formal hearing. During the hearing, the Department presented one witness and filed two exhibits, which were admitted into evidence. The Respondent called two witnesses, and showed the Hearing Officer the nursing license of Floretta Young. A transcript of the proceeding was not ordered. Both parties waived their opportunity to submit proposed findings of fact.
Recommendation Based upon the foregoing, it is RECOMMENDED: The Respondent be found guilty of having violated Rule 10A-5.019(5)(h), Florida Administrative Code, during the survey conducted on July 18, 1990, as alleged in the Administrative Complaint. The alleged violation of the same Florida Administrative Code provision which was recorded in the survey conducted July 31, 1989, be considered as an improperly classified deficiency. The July 18, 1990 violation be deemed the facility's first offense of Rule 10A-5.019(5)(h), Florida Administrative Code. The civil penalty which the Department seeks to assess against the facility administrator be dismissed as such penalties may only be imposed if the violation is a repeated offense. DONE and ENTERED this 24th day of April, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELL Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th of April, 1991. COPIES FURNISHED: Paula M. Kandel, Esquire HRS - Office of Licensure and Certification 7827 North Dale Mabry Highway Tampa, Florida 33614 Keith Young, Administrator The Villa Cabana 2600 - 4th Street South St. Petersburg, Florida 33705 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner, Morton Francis, operates Francis Villa, an ACLF at 1398 Northeast 156th Street, North Miami Beach, Florida. He and his wife are the sole staff at the facility. His present license to operate that facility has an expiration date of July 30, 1981. Prior to that date Mr. Francis applied for relicensure by Respondent, Department of Health and Rehabilitative Services. On September 17, 1981 he was informed by the Department that his application for relicensure had been denied for the following reasons: (a) the location of Francis Villa is net zoned by the City of North Miami Beach for the operation of an ACLF; (b) three of the files for residents at Francis Villa lacked sufficient medical information to determine if they had received a physical examination within 30 days of their admission to the facility; (c) the facility did not have a written procedure to be followed for emergency care during evacuation in the event of a disaster; (d) the facility had no documentation indicating that the staff is free of communicable diseases; (e) the facility did not have an up-to-date diet manual approved by the Department; (f) while menus were planned and posted in a frame on the wall at the facility they were not dated and no record indicates that the menus have been kept on file for the past six months; (g) there was no thermometer in the kitchen refrigerator; (h) in the bathroom on the west side of the facility there were no non-slip safety devices or hand rails in the bathtub used by the residents; (i) in three files reviewed by the Department during its licensure survey there was no written agreement between the resident and the facility specifying the conditions when the resident would be moved to a more appropriate residential setting; and (j) the files failed to contain the demographic data required by the Department. The foregoing deficiencies given for the denial of relicensure did in fact exist on July 7, 1981 in Petitioner's facility. They were discussed with him at that time during a relicensure survey. Reinspections were conducted on August 12, 1981, September 3, 1981, and finally on November 24, 1981. The above deficiencies in Petitioner's facility were not corrected by November 24, 1981. By the time of the final hearing Petitioner had installed a thermometer in his kitchen refrigerator and had installed non-slip safety devices and hand rails in the bathtub on the west side of the facility. Petitioner is unwilling to correct the remaining deficiencies until such time as he can be assured that his facility will be relicensed. At the final hearing Mr. Francis attempted to shift responsibility for some of his facility's defects onto the Department because he allegedly lacked information about how to handle patient records, etc. The evidence reflects that the Department has held training sessions for operators of ACLF's and has prepared forms available to Mr. Francis which may be utilized by operators in maintaining the required patient records. See Section 400.452, Florida Statutes (1981).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order denying Mr. Francis' application for the relicensure of his Adult Congregate Living Facility located at 1398 Northeast 156th Street, North Miami Beach, Florida. DONE and RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982. COPIES FURNISHED: Martha F. Barrera, Esquire Long Term Care Office Department of Health and Rehabilitative Services 1320 South Dixie Highway Coral Gables, Florida 33146 Mr. Morton Francis c/o Francis Villa 1398 Northeast 156th Street North Miami Beach, Florida 33162
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On November 20, 1985, License Number B03139 was issued to Swan Care Homes II to operate as an adult congregate living facility. This license was issued to Wayne Veccitto, who was a tenant of respondent and his wife. The expiration date of the license was May 19, 1986. Due to the facts that Mr. Veccitto had not made his rental payments in several months and the property was falling into disrepair, respondent evicted Mr. Veccitto on or about May 1, 1986. Respondent and his wife operated the facility during the month of May, 1986, and advertised for someone else to live in the facility and operate it. Neither the respondent nor his wife desired to personally operate the facility. According to the respondent, the Millers responded to his advertisement and began operating the facility around June 1, 1986. On June 9, 1986, the petitioner received an application dated June 6, 1986, from respondent's wife to operate the subject property as an adult congregate living facility. By letter dated June 16, 1986, respondent's wife was advised that her application for initial license was incomplete and that no further action on the application would be taken until the requested information was received. This letter further advised that it was unlawful to offer adult congregate living facility services or to advertise such services without having obtained a valid license. Respondent was aware of this correspondence but was not concerned because he knew the Millers were assuming the operation of the facility. On June 27, 1986, a representative of the petitioner conducted a complaint investigative visit to the facility. At that time, there were residents at the facility and a couple in charge of the facility who stated that they were working for the respondent. There was no valid license for the facility on June 27, 1986. By letter dated July 2, 1986, and received by the petitioner on July 7, 1986, respondent requested petitioner to rescind or void his application for licensure and to accept an enclosed application from Dorothy V. Miller for the same facility. The respondent and his wife have owned and/or operated approximately 12 adult congregate living facilities in Michigan and 5 or 6 in Florida.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent Louis E. Smith be found guilty of violating Section 400.407(1)(a), Florida Statutes, and that an administrative fine of $1,000.00 be imposed. Respectfully submitted and entered this 1st day of February, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 1st day of February, 1988. APPENDIX (Case No. 87-1377) The proposed findings of fact submitted by the petitioner have been accepted and/or incorporated in this Recommended Order, except as noted below: 2. Last sentence rejected as immaterial. 5. Reference to Exhibit 2 is rejected. The proper Exhibit Number is 6. Also, no competent evidence to support the statement that Exhibit 6 was rejected by HRS. COPIES FURNISHED: Gaye Reese, Esquire Office of Licensure and Certification 7827 N. Dale Mabry Hwy. Tampa, Florida 33614 Louis E. Smith 6060 Shore Blvd. South Gulfport, FL 33707 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in DOAH Case No. 10-0528 are whether the allegations set forth in the Administrative Complaint dated December 4, 2009, are correct, and, if so, what penalty should be imposed. The issue in DOAH Case No. 10-1672 is whether the application for license renewal filed by Avalon's Assisted Living LLC, d/b/a Avalon's Assisted Living and d/b/a Avalon's Assisted Living at Avalon Park (hereinafter Avalon I), should be approved. The issue in DOAH Case No. 10-1673 is whether the application for license renewal filed by Avalon's Assisted Living II LLC, d/b/a Avalon's Assisted Living at Southwest (hereinafter Avalon II), should be approved.
Findings Of Fact Avalon I is a six-bed assisted living facility (ALF), operating at 1250 Willow Branch Drive, Orlando, Florida, 32828, and holding license number 10813 with Limited Nursing Services licensure. Avalon II is a six-bed ALF operating at 13230 Early Frost Circle, Orlando, Florida, 32828, and holding license number 11318 with Limited Nursing Services licensure. Avalon I and Avalon II are operated by a limited liability company owned by Chiqquittia Carter-Walker and Robert Walker. Mrs. Carter-Walker acts as the administrator of the facilities. On July 23, 2009, the Agency conducted an inspection of Avalon I and determined that there were three "Class II" deficiencies, commonly cited as "tags" in reference to applicable regulatory standards. Tag A029 alleged that the training certifications, contained within the facility's personnel files to document the provision of required employee education, were false and that the training had not been provided. The training certificates for one Avalon I staff member were not accurate and falsely indicated that the referenced employee received training that had not been provided. The falsification was deliberate and was not erroneous. The inaccurate documentation of employee training misstated the qualifications of the ALF staff, falsely indicated that the staff was adequately trained, and presented the potential for harm to the health of the residents. The Agency correctly identified the deficiency as Class II. Tag A427 was based on regulatory provisions that permitted a terminally ill resident, no longer meeting the criteria for continued ALF residency, to remain in the ALF under certain conditions. The July 23, 2009, inspection indicated that such a resident continued to reside at Avalon I without compliance with relevant conditions. The conditions under which the terminally ill resident was permitted to remain at the ALF required that the hospice coordinate the care and provision of additional medical services and that an interdisciplinary care plan be developed and implemented by the hospice in coordination with the ALF. The July 23, 2009, inspection revealed that the interdisciplinary care plan failed to adequately designate responsibility for the various kinds of care required by the resident. The inspection revealed that a terminally ill resident remained in Avalon I without receiving appropriate medication for pain management even though such medications had been authorized. Although the ALF had undertaken the responsibility of administering the pain medication, there were occasions when no Avalon I staff member authorized to administer the pain medication was present at the ALF. Patient records indicated that the hospice representative attempted at several junctures to contact Mrs. Carter-Walker by telephone to resolve the problem and that Mrs. Carter-Walker was not accessible to the hospice representative. The resident unnecessarily suffered pain because the issue was not resolved in a timely manner. The failure to provide a terminally ill resident with appropriate pain medication resulted in a direct threat to the physical and emotional health of the resident, and, therefore, the Agency correctly identified the deficiency as Class II. Tag A700 reflects standards for resident care and requires that appropriate services be provided to residents. The July 23, 2009, inspection indicated that one resident was not being provided a nutritional supplement and that two residents were not being provided appropriate pain-relieving medications. As to the provision of nutritional supplementation, one resident with a history of weight loss had been prescribed a daily can of "Ensure" nutritional supplement. According to the facility records, the supplement had not been acquired by the ALF and had not been provided to the resident. As to the residents who were not receiving proper pain medication, one of the two was the terminally ill resident referenced in relation to Tag A427. As stated previously, the resident unnecessarily suffered pain because medication was not appropriately administered, which resulted in a direct threat to the health of the resident. Therefore, the Agency also correctly identified the deficiency cited as Tag A700 as Class II. The second resident had a history of hypertension and hypothyroid issues and had been prescribed a daily Ibuprofen (400mg) for pain. The Avalon I medication records indicated that, on some days, the medication had been provided twice daily to the patient, and, on other days, it had not been provided at all. The evidence establishes that the deficiencies identified in Tags A427 and A700 indicate a failure of the ALF to provide appropriate care and service to the residents of the facility. According to the uncontroverted testimony of Agency investigators as documented by the reports of their inspections, numerous lesser deficiencies were identified at Avalon I between 2007 and 2009, constituting a continuing pattern of inadequate performance and a failure to meet relevant standards. On August 5, 2009, an inspection conducted by the Agency at 1812 Crown Hill Boulevard, Orlando, Florida, 32828, indicated that an unlicensed ALF was operating at that address. On August 5, 2009, the Agency's investigator observed five individual residents in Avalon III. The investigator reviewed health assessments for the residents, all of whom required assistance with activities of daily living, including personal hygiene, ambulation, and meals. Medications for the residents were stored in a central area. The investigator reviewed medication observation records, indicating that the residents self-administered medications with observation by the Avalon III staff. Signage was present at Avalon III that identified Mrs. Carter-Walker as the administrator of the Avalon III facility. During the August 5, 2009, inspection, Mrs. Carter- Walker arrived at Avalon III and identified herself as the administrator of the facility. The investigator was familiar with Mrs. Carter-Walker and knew her as the administrator for Avalon I and Avalon II. Mrs. Carter-Walker identified herself as the Avalon III administrator to other care providers, including a clinical social worker, a registered nurse providing contract health care services to facility residents, and Administrators at other local ALFs. According to the testimony of an employee of Avalon III, there had been residents in the Avalon III location since at least June 16, 2009, at which time the staff member began to work at the facility. She worked five days per week, providing the resident services identified herein. During that time, there were always at least three residents in the facility. The same residents were present on a day-to-day basis. There is no evidence that such residents were transported out of the facility during the evening or that they did not otherwise remain at the Avalon III location overnight. A licensed practical nurse present at the Avalon III location on August 5, 2009, was the person who permitted the Agency's investigator to enter into the facility. The nurse was at the location to provide personal care assistance to a terminally ill resident receiving care through an agreement between the Mrs. Carter-Walker, as the facility administrator, and the hospice. After Mrs. Carter-Walker arrived at the Avalon III location, she was apparently unhappy that the nurse had permitted the investigator to enter the facility, and directed the nurse to leave immediately without providing further assistance to the resident. On the day of the investigation, the Agency investigator issued a "Notice of Unlicensed Activity/Order to Cease and Desist" to Robert Walker and Chiqquittia Carter-Walker for the Avalon III operation. Mr. Walker arrived during the inspection and identified himself as an owner to the Agency investigator. On August 14, 2009, the Agency received an application for licensure of an ALF at 1812 Crown Hill Boulevard, Orlando, Florida, 32828. The application, submitted by Robert Walker as the administrator, referenced the Avalon I and Avalon II as affiliated with Avalon III through ownership. Both Mr. Walker and Mrs. Carter-Walker submitted affidavits of compliance with background screening requirements as part of the Avalon III application. At no time was Avalon III licensed as an ALF. There was no evidence that the Avalon III residents were related to Mrs. Carter-Walker or her husband. There was no evidence that Avalon III was exempt from, or otherwise not required to comply with, relevant ALF licensing requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order revoking the licenses of Avalon I and Avalon II, denying the applications for license renewal filed by Avalon I and Avalon II, and assessing an administrative fine in the amount of $3,000 for the specific Class II deficiencies identified herein. DONE AND ENTERED this 28th day of January, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2011.
The Issue The issue is whether Respondent should have a civil penalty in the amount of $1,500.00 imposed for failing to timely correct five violations of administrative regulations, as alleged in the Administrative Complaint filed by Petitioner on September 2, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Gene A. Grier (Respondent), was licensed to operate an assisted living facility (ALF) under the name of El-Amins Shelter & Care Center at 2035 Baldwin Street, Jacksonville, Florida. As an ALF, Respondent is subject to the regulatory jurisdiction of Petitioner, Agency for Health Care Administration (AHCA). Although the facility was licensed to handle up to 11 residents, Respondent had only 5 or 6 residents when the events occurred. When it receives a complaint from a third party about a licensed facility, AHCA has the regulatory responsibility of conducting an inspection to ensure that the facility is complying with certain standards embodied in Chapter 58A-5, Florida Administrative Code. If standards are not being met, depending on their nature and severity, the deficiencies are classified as Class I, II, and III violations, with Class III being the least serious violation. After the deficiencies are noted in a Summary of Deficiencies, the facility is given a time certain in which to correct those violations. If no correction is made, AHCA normally imposes a civil penalty upon the erring facility. Respondent is charged with having failed to timely correct five Class III violations. That class of deficiency is one which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home residents. On an undisclosed date, the Jacksonville office of the Human Rights Advocacy Committee (Committee), an independent organization which monitors residents in ALFs, filed a complaint against Respondent and certain other ALFs in the Jacksonville area alleging that the facilities were not in compliance with AHCA regulations in various respects. In response to that complaint, on June 25, 1999, an AHCA health facilities evaluator, Robert A. Cunningham (Cunningham), conducted an unannounced inspection of Respondent's facility. During his inspection, Cunningham noted, among other things, that Respondent "did not ensure that there [was] at least one staff member on duty at all times who [had] certification in an approved first-aid and CPR course"; that Respondent's menus were not "reviewed, signed, and dated by a Registered Dietician"; that Respondent's menus "were not dated and planned at least one week in advance for regular and therapeutic diets"; that the facility's "dry and canned foods were not dated"; and that "the interior and exterior of the buildings and grounds were not kept reasonably attractive" in various respects, including a "broken mirror in the hall and peeling ceilings." Each of these deficiencies contravened an agency rule and constituted a Class III violation. After the inspection was completed, Respondent was given a copy of the Summary of Deficiencies and advised that the deficiencies must be corrected by July 25, 1999. On August 11, 1999, or approximately six weeks after the first inspection, Cunningham conducted a second inspection of Respondent's facility. While some of the violations had been remediated, Cunningham noted that none of the deficiencies cited in paragraph 5 had been corrected. At hearing, Respondent admitted that except for the violations pertaining to dated canned goods and a broken mirror, to which he takes "strong exception," the remaining violations were uncorrected. Therefore, the allegations pertaining to the remaining violations have been established. As to the two violations which Respondent has denied, the more persuasive evidence supports a finding that they were also uncorrected as of August 11, 1999. Even so, Respondent contended that he was only given one follow-up inspection, while two other ALFs, one in Jacksonville and the other in Hilliard, were given at least two follow-up inspections in which to correct violations discovered during their initial inspection. According to Respondent, he "got the treatment" from the inspector, while the others did not, and his facility was labeled a "hell hole." At the same time, Respondent suggested that if he had been given additional time like the others, he would have eventually corrected the deficiencies. While it is true that two other facilities were given more than one follow-up visit, the number of follow-up visits is a discretionary matter on the part of the evaluator, depending on the nature and severity of the violations and other circumstances. Here, there was no abuse of discretion shown on the part of the inspector, and Respondent presented no compelling reason why he was unable to correct the violations within the six-week period between the first and second inspections, or why he needed more than a normal period of time to correct a particular violation. It is noteworthy that both of the facilities which were given two follow-up inspections were also fined. Respondent further contended that the Committee which filed the complaint was biased against him and unjustly singled him out. Even if this is true, however, AHCA is legally required to investigate all complaints, even if anonymous and no matter what their underlying motivation, to determine if the allegations are true. This is because ALFs are entrusted with the care of elderly persons and require special oversight by AHCA. In this case, the evidence shows that Respondent was not singled out, and that the Committee triggered inspections of several other area ALFs. While one of the two deficiencies alleged by the Committee to be present in Respondent's facility was later determined to be unfounded, one was substantiated, and during the inspection, the evaluator found a number of other violations at the facility. The fact that the Committee also filed complaints against Respondent with the Department of Children and Family Services, City Code Enforcement Board, and County Health Department regarding alleged violations is of no concern here. At hearing, Respondent also contended that he was denied due process because the Committee failed to honor its own procedural rules (regarding notice and the use of a check list) and it has no expertise in operating an ALF. However, AHCA (and not the Committee) is the agency which has regulatory jurisdiction over Respondent's facility, and there is no evidence that AHCA's inspections failed to comport with the law. Therefore, the concerns about the Committee have no relevance here. Respondent further contended that the Committee's complaint, and the inspector's evaluation, were based on a 1999 version of administrative rules, even though the rules did not become effective until after the recommendation for sanctions was made. The evidence shows, however, that the evaluator used the then-effective 1995 version of rules, and the later-adopted rules were never considered nor used during the inspection. According to Respondent, he has been licensed for 27 years, first by the Department of Health and Rehabilitative Services, and then AHCA. This was not contradicted. There is no evidence that he has ever violated any rules prior to this proceeding. Finally, there is no evidence that the residents were placed in jeopardy by the violations not being corrected by August 11, 1999. These circumstances should be taken intoaccount when determining the amount of a civil penalty to be imposed upon Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order determining that the charges in the Administrative Complaint have been sustained, and that Respondent should have a $750.00 civil penalty imposed. DONE AND ENTERED this 12th day of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 12th day of June, 2000 COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Michael O. Mathis, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Gene A. Grier El-Amins Shelter & Care Center 2035 Baldwin Street Jacksonville, Florida 32209 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Azalea Manor operated a licensed 20-bed assisting living facility in St. Petersburg, Florida. Azalea Manor houses its residents primarily in two buildings. The buildings will be referred to herein as the Big House and the Small House. On January 20, 2011, S.M. was a resident of Azalea Manor and resided in the Small House. In addition to certain physical ailments, S.M. suffered from dementia. S.M. is approximately six feet tall, and on the date in question, weighed about 150 pounds. For at least several months leading up to, and including January 20, 2011, S.M. was prescribed medication for psychosis, depression, confusion, and memory loss. On January 20, 2011, S.M. was 65 years of age. On January 20, 2011, Joyce Spiker (Ms. Spiker) was employed by Azalea Manor as a caregiver. On January 20, 2011, the date upon which the instant action is based, Ms. Spiker was 66 years old, five feet, five inches tall, and weighed 300 pounds. Rasheena Nicole Wade (Ms. Wade), an Azalea Manor employee, started working for Azalea Manor on January 13, 2011. Ms. Wade's job duties included waking residents in the mornings and assisting them with getting dressed. Prior to January 20, 2011, Ms. Wade had worked with S.M. on one prior occasion and was generally unfamiliar with S.M. and her morning preferences and tendencies. On the morning of January 20, 2011, Ms. Wade was tasked with helping S.M. get dressed. Ms. Wade asked S.M. to get dressed several times, but for whatever reason, S.M. refused to do so. S.M. told Ms. Wade multiple times that she was not going to get dressed, and in furtherance of her general disposition of defiance, S.M. repeatedly slammed doors throughout her immediate living area. S.M. was obviously in an agitated state and Ms. Wade, being generally unfamiliar with S.M., called to the Big House for assistance. Ms. Spiker fielded Ms. Wade's phone call. In response to Ms. Wade's call for help, Mike, the son of the owner of Azalea Manor, went to the building where S.M. was located. Upon entering the building, Mike noticed that S.M. was not dressed. Mike encouraged S.M. to get dressed, but she refused. S.M. continued slamming doors and otherwise stating that she was not going to get dressed. Mike then advised S.M. that he was going to call Ms. Spiker and have her to come to the Small House to aid her in getting dressed. Mike then left the area where S.M. was located and phoned Ms. Spiker and asked for her assistance. Ms. Spiker, at the time of Mike's call, was still located in the Big House. Mike explained to Ms. Spiker the difficulty that he was having with S.M. and requested that she take over the situation with S.M. Before Ms. Spiker arrived at the Small House, Mike left the Small House and headed back towards the Big House. En route to the Big House, Mike encountered Ms. Spiker who was on her way to see S.M. During his encounter with Ms. Spiker, Mike again explained to her the difficulty that he was having with S.M. Following his discussion with Ms. Spiker, Mike returned to the Big House and Ms. Spiker went to the Small House and met with S.M. When Ms. Spiker arrived at the Small House, Ms. Wade was still present and witnessed the interaction between Ms. Spiker and S.M. that provides the basis for the instant action. When S.M. saw that Ms. Spiker had arrived at the Small House, she calmed down, went into her room, and started getting dressed. However, after making some progress towards getting dressed, S.M. again started to verbalize that she did not want to get dressed. Ms. Spiker told S.M. to finish getting dressed. Per Ms. Spiker's directive, S.M. finished putting on her clothing items, but refused to put on her sneakers. At this point, S.M. placed one of the sneakers on her bed and announced that she was not going to put the shoe on her foot. In response to S.M.'s pronouncement, Ms. Spiker grabbed the shoe, hit S.M. in the middle of the forehead with the sole of the shoe, then threw the shoe in S.M.'s lap and told her to put the shoe on her foot. S.M. then grabbed the shoe and threw it at Ms. Spiker. S.M. and Ms. Spiker then launched into a short volley of angry expletives. Soon thereafter, S.M. capitulated and placed the shoe on her foot. Ms. Wade was approximately four feet from Ms. Spiker and S.M. when the exchange occurred. S.M. did not sustain any injuries resulting from being hit on the forehead with the shoe. Within seconds of S.M.'s placing the shoe on her foot, one of the other residents in the Small House informed Ms. Wade that another resident had become very upset after overhearing the fracas between S.M. and Ms. Spiker. Ms. Wade immediately left the area where S.M. and Ms. Spiker were located so that she could tend to the needs of the resident that had become upset. At this point in time, Ms. Spiker was alone with S.M. The evidence is inconclusive regarding the amount of time that Ms. Spiker and S.M. were alone in S.M.'s room. However, what is clear is that Ms. Wade, after having calmed the resident that had become upset, noticed when she saw S.M. about 15 minutes after having left S.M. alone with Ms. Spiker, that S.M. "had red on her lip." Ms. Wade believed that the "red" on S.M.'s lip was lipstick. It was eventually determined that the "red" was not lipstick, but instead was blood. On the day in question, S.M. had extremely dry and cracked lips. Soon after Ms. Wade saw S.M.'s red lips, S.M. left the Small House and went to the Big House where she found Nicole Wiggins (Ms. Wiggins). Upon seeing Ms. Wiggins, S.M. immediately ran to Ms. Wiggins and embraced her around the neck. Ms. Wiggins had worked with S.M. for several months prior to the incident and was someone with whom S.M. would converse with on occasion. S.M. was extremely upset and was literally shaking with fear when she embraced Ms. Wiggins. When Ms. Wiggins freed herself from S.M.'s embrace, she noticed that there was blood on S.M.'s lips. Ms. Wiggins asked S.M. about her bloody lips and S.M. explained that her lips were bloody because Ms. Spiker had pushed and kicked her in the face. Ms. Wiggins took S.M. to the bathroom in order to clean the blood from S.M.'s lips. During the process of trying to remove the blood from S.M.'s mouth, Ms. Wiggins noticed a small puncture wound on the inside of S.M's upper lip that was actively bleeding. Ms. Wiggins applied pressure to the wound and eventually the bleeding stopped. As a consequence of the incident, S.M. was allowed to stay home from work on January 20, 2011. Based on the current record and given Ms. Spiker's physical characteristics, the undersigned is unable to find as a matter of fact that Ms. Spiker kicked S.M. in the face, thereby causing blood to appear on S.M.'s lip. Ms. Wiggins reported the incident to her immediate supervisor and then reported the same to the DCF abuse hot-line (abuse hot-line) and the St. Petersburg Police Department. Additionally, Ms. Wade also reported the incident to the abuse hot-line. On January 20, 2011, an officer from the St. Petersburg Police Department was dispatched at approximately 10:15 a.m., to Azalea Manor to investigate the incident involving S.M. Upon arriving at Azalea Manor, the investigating officer spoke with S.M. and Ms. Wiggins regarding the incident. Ms. Spiker was not present during the officer's initial visit, but she subsequently met with the officer during the afternoon of January 20, 2011. As a part of the investigation, the officer asked Ms. Spiker if she knew Rasheena's (Ms. Wade) surname. Because Ms. Wade was a new employee, Ms. Spiker advised the officer that she did not know Rasheena's surname. In order to assist the officer, Ms. Spiker called Mr. McKenzie, explained to him why she was calling, and handed the phone to the police officer so that he could speak with Mr. McKenzie. The police officer spoke to Mr. McKenzie while in the immediate presence of Ms. Spiker. Although the investigating officer was able to secure Ms. Wade's surname, the officer never interviewed Ms. Wade as part of the investigation. The investigating officer determined that the allegations were criminally unfounded and the investigation was closed. In response to the abuse hot-line report, DCF, on January 20, 2011, also dispatched an investigator to Azalea Manor. When the DCF investigator arrived at Azalea Manor on the afternoon of January 20, 2011, the officer from the St. Petersburg Police Department was present. The DCF investigator met with Mr. McKenzie and informed him of the reason for her visit. During the meeting with the DCF investigator, Mr. McKenzie advised that he had already spoken with the officer from the St. Petersburg Police Department about the incident involving S.M. On January 21, 2011, the Department was contacted regarding the incident between Ms. Spiker and S.M. In response to notification of the incident, the Department, on January 24, 2011, visited Azalea Manor. While visiting Azalea Manor, the Department interviewed Mr. McKenzie and several employees. The Department's interview with Mr. McKenzie commenced at approximately 11:20 a.m. As a part of the Department's questioning of Mr. McKenzie, inquiry was made as to why he had not filed the initial adverse incident report. In response to this inquiry, Mr. McKenzie advised that he was unaware of the requirement for doing so. Within a few hours of completing his meeting with the Department, Mr. McKenzie filed the initial adverse incident report, which is officially entitled, "Assisted Living Facility Initial Adverse Incident Report – 1 Day (Day 1 Form)." Mr. McKenzie did not file a 15-day full report. Noted on the Day 1 Form was a check mark signifying that the incident had been reported to law enforcement officials. The Day 1 Form was signed by Mr. McKenzie. On January 24, 2011, Mr. McKenzie also fax filed an incident report with the Agency for Persons with Disabilities. On January 25, 2011, Mr. McKenzie issued a verbal warning to Ms. Spiker and provided her with refresher training on appropriate strategies for dealing with challenging situations. Mr. McKenzie also discussed the incident with S.M.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order and, therein, dismiss Count I of the Administrative Complaint and assess against Respondent, Eastwinds of Florida, Inc., d/b/a Azalea Manor of St. Peterburg, an administrative fine of $1,200 and a survey fee of $500. DONE AND ENTERED this 19th day of January, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2012.
