Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner Lindsey is the owner and operator of the F & F Guest Home, an adult congregate living facility within the meaning of Florida Statutes, Section 400.401, et seq. At the time of her original licensure under the Adult Congregate Living Facilities Act, petitioner was granted a conditional license, thus providing her with an opportunity to correct deficiencies in her facility. On May 18, 1978, a representative from the Pinellas County Health Department conducted a sanitation elevation and a food establishment inspection of petitioner's facility. As illustrated on Exhibit 1, fourteen deficiencies were found with regard to the food service area. The sanitation evaluation noted that painting was needed throughout the kitchen, that the toilet floors were in need of repair and that better housekeeping was needed. (Exhibit 2) On August 2, 1978, respondent notified petitioner that her application for relicensure of the F & F Guests Home as an adult congregate living facility had been denied. It was determined by the respondent that the facility was in violation of Chapter 10K-6.10 and 10K-6.11, F.A.C., in that the facility had failed to pass the food establishment inspection. Many of the deficiencies listed in the inspection report had been corrected as of the date of the hearing. It was petitioner's intention to correct all deficiencies and do renovation work at the same time. She has had difficulty obtaining financing, and thus has not completed the work required for licensure.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent deny petitioner licensure until such time as it is adequately demonstrated that petitioner has complied with all licensing requirements. Respectfully submitted this 14th day of December, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Anne M. Lindsey 800 - 17th Avenue South St. Petersburg, Florida 33711 Barbara McPherson, Esquire District V Counsel Department of HRS Post Office Box 5046 Clearwater, Florida Gail Graham Adult Congregate Living Program Department of HRS Post Office Box 5046 Clearwater, Florida 33518 Emmett Roberts, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The Petitioner completed an application for home energy assistance benefits in mid-November, 1983. The application was not submitted to the Respondent until December 12, 1983, but the information contained in the application was correct as of the date the Petitioner signed it, November 10, 1983. Shortly after completing the application, the petitioner was laid-off from his employment with McDowell Concrete. Specifically, Petitioner was unemployed from the end of November until the end of January, 1984. In December, 1983 Petitioner applied for and received food stamps and he began receiving unemployment benefits. On December 22, 1983, Respondent mailed a letter to Petitioner requesting income verification. However, the Petitioner and his family went out-of-state for the Christmas Holidays, departing approximately December 23, 1983 and returning approximately December 31, 1983. During this time period, mail was delivered to Petitioner's residence and was allowed to accumulate in the mailbox. Petitioner denies ever having received the letter which was admitted as Respondent's Exhibit 1. Additionally, Respondent presented evidence that the usual practice of the agency is to mail such letters in envelopes with returned addresses, but Respondent was unable to present any direct evidence that the letter requesting income verification was ever actually mailed to Petitioner. The HRS worksheet which was submitted with the Petition for Hearing further fails to indicate any other attempts to contact the Petitioner prior to denial of benefits. In fact, the HRS office in Fort Walton Beach, which accepted the application from Petitioner, was only a temporary office and was closed on December 23, 1983. Because Petitioner did not supply income verification by January 5, 1984, his application was denied. Petitioner was notified of the denial in February, 1984, and immediately wrote to the Respondent, questioning the denial. See Respondent's Exhibit 2. The income verification which Respondent sought had in fact been supplied to another office of Respondent in December, 1983, when Petitioner's household qualified for food stamps. As indicated on the application, the Petitioner authorized the Respondent to use the records from any other HRS program to determine eligibility for home energy assistance. Had Respondent checked its computer prior to denying this benefit, Respondent would have determined that the Williams household was eligible for home energy assistance based on a zero income for a family of four.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, and the candor and demeanor of the witnesses, it is, hereby RECOMMENDED that Petitioner, Nathaniel Williams, be declared eligible for participation in the Low Income Energy Assistance Program and that the appropriate benefits for which he is financially entitled be awarded to him. DONE and ENTERED this 5th day of April, 1984, in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 5 day of April, 1984. COPIES FURNISHED: Nathaniel Williams 116 Shell Avenue Fort Walton Beach, Florida 32548 Maureen McGill, Esquire District I Legal Counsel Department of Health and Rehabilitative Services Post Office Box 12836 Pensacola, Florida 32576 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Relating to Case No. 89-2757 Whether Respondent failed to assure that a sufficient number of staff members were certified in an approved First Aid course (a repeat violation), in violation of Section 400.419(3)(c), Florida Statutes and Rule 10A-5.019(5)(f), Florida Administrative Code. Whether Respondent failed to sanitize multi-use eating and drinking utensils in accordance with the food service standards (a repeat violation), in violation of Sections 400.419(3)(c) and 400.441(1)(b), Florida Statutes and Rule 10A-5.020(1)(n)6, Florida Administrative Code Relating to Case No. 89-3411 Whether Respondent failed to have in its files the inspection reports for the years 1984 and 1985, in violation of Sections 400.419(3)(c)4. and 400.435(1), Florida Statutes and Rule 10A-5.024(1)(d)(2a), Florida Administrative Code. Whether Respondent failed to assure compliance with physical plant standards, by not providing a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area for one (1) sleeping room window that serves as a second means of escape, in violation of Sections 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code. Whether Respondent failed to have a fire and evacuation route plan to assure compliance with fire safety standards, in violation of Section 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code.
Findings Of Fact Case No. 89-2757: At all times relevant the dates and alleged occurrences referred to in these proceedings, Respondent, Henderson's Retirement Home, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF). Respondent's facility was staffed without assurance of at least one staff member within the facility at all times who is certified in an approved first aid course. Tina Porterfield, the granddaughter of Dee Henderson, owner of Henderson's Retirement Home, although certified in an approved first aid course, was not a full time staff member. This violation occurred on September 30, 1987 and was not corrected on February 2, 1988. There was no competent evidence to show that Respondent's multi-use eating and drinking utensils were not being properly sanitized in accordance with food service standards. Case No. 89-3411: At all times relevant to the dates and alleged occurrences referred to in these proceedings, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF). HRS inspection reports relating to the Respondent's ACLF facility were not provided to Respondent for the years 1984 and 1985, and therefore could not be retained in its files at the time the facility was inspected in February, 1986 and February 18, 1987. HRS inspection of the premises on February 16, 17 and 18, 1987 revealed that a window that serves a second means of escape did not provide a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area. It was not proven where this window was located or if it was a sleeping room. Respondent was given until April 1, 1987 to correct the deficiency and the window was removed and replaced by a fire exit door when inspected on June 4, 1987. As of February 18, 1987, Respondent had a written fire and evacuation route plan prepared. A copy was posted during the time the HRS inspectors were completing their survey on February 18, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner impose a civil penalty in the total amount of $300 against Respondent pursuant to Section 400.419, Florida Statutes. DONE AND ENTERED this 15th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2757, 89-3411 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact: As to Case No. 89-2757: Adopted in substance. As to Case No. 89-3411: Paragraphs 1 and 3 adopted in substance. Paragraph 2 rejected as against the weight of the evidence. COPIES FURNISHED: Linda L. Parkinson, Esquire District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson Street Suite 701 Orlando, Florida 32801 Raymond A. McLeod, Esquire McLeod, McLeod and McLeod, P.A. Post Office Drawer 950 Apopka, Florida 32704 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact James Zaharako is the Executive Vice-President of J. R. Brooks & Sons, Inc. In this capacity he is involved in the management and administration of J. R. Brooks & Sons, Inc., including but not limited to collection of sums owed. He or his subordinates agreed to fill orders for avocadoes from Sunshine Produce Company, Inc. totalling $84,193.25 set out as follows: DATE INVOICE NO. DOLLAR AMOUNT 06/10/83 45434 $9,256.25 01/05/84 125261 7,337.00 01/11/84 12096 4,936.00 01/12/84 12168 6,610.50 01/26/84 14094 8,908.00 01/26/84 14127 8,755.00 02/02/84 15114 10,172.50 02/08/84 22125 7,340.00 02/08/84 22126 10,632.00 02/15/84 23141 10,246.00 $84,193.25 These agricultural products were delivered into the care, custody and control of truck drivers employed by Sunshine Produce, Company, Inc. at the J. R. Brooks packing facility located in Homestead, Florida. The transaction, except for payment to J. R. Brooks, was complete at that time. Despite many attempts to collect the total amount, representatives of Sunshine refused, declined, or failed to pay J. R. Brooks & Sons, Inc. the amount charged without offering any reason except that they did not have sufficient funds. The surety, pursuant to bond FS-106353 for Sunshine Produce Company, Inc. is Allied Fidelity Insurance Company. The amount on this bond is capped at $4,000 for events arising between August 7, 1983, and August 6, 1984. Seventy-four thousand nine hundred and thirty-seven dollars ($74,937.00) of the total unpaid-for orders were filled by J. R. Brooks & Son to Sunshine Produce Company, Inc. in this period of time.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what sanction(s), if any, should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent operates a 120-bed skilled nursing facility in Tallahassee, Florida (Facility) pursuant to a license issued by the Agency. The Facility is part of a "continuing care retirement community" that also includes an assisted living facility (Westminster ALF). There are residents of the Facility who have "lived [in the community for] up to 20 years." The Facility has the benefit of a stable workforce. Its staff "retention rates are very high." As a result, staff members are generally quite familiar with the residents and their needs. A 20-bed wing on the second floor of the Facility (referred to as the "240 wing") houses residents in the "middle stage of dementia." Most of these residents come from the Westminster ALF, which has a "memory support floor" set up "very similarly" to the Facility's 240 wing. The 240 wing is "for residents [who] are very social" and enjoy interacting with others and participating in the many group activities that are available to residents in this wing. It is not for persons who are prone to violent outbursts. The residents in the unit are evaluated on a regular basis to ensure that their placement there remains appropriate. If it is determined that a placement has become inappropriate, the resident will be moved to a more appropriate setting. The 240 wing provides a "structured" environment for its residents. Activities take place "at the same time every day"; furniture is not moved "so the [residents] know where to go"; and there is the "same staff caring for [the residents]" on a regular basis. Assigned to the 240 wing during the day shift are: four Certified Nursing Assistants (CNAs), including a team leader, who are responsible for the care and supervision of the units' residents; an "activities person"; and the "unit manager who oversees the entire wing." There are also others who have occasion to be "on the floor," including "floor nurses," housekeeping and janitorial staff, clergy, and volunteers. In addition, some residents have "sitters" (hired by the residents' families) who stay with them and provide them with extra help in dealing with their day-to-day needs. The doors to the 240 wing are supposed to remain closed, but they are not locked and residents from other parts of the Facility have access to the unit. There is a nurses' station, which is open on three sides, located in approximately the center of the second floor of the Facility. It is an active area usually occupied by "clinical staff," who, from their vantage point at the station, are able to "look straight down" the 240 wing hallway (as well as the 220 wing and 260 wing hallways) and into the second floor dining room, which is approximately ten to fifteen feet away. The second floor dining room is not ordinarily visited by residents except at "eating time," when its doors are opened and residents are invited in. It has one of the four "wheelchair buffets" located in the Facility. There is also a "wheelchair buffet" in the first floor dining room,2 one in the 140 wing hallway (on the first floor), and another in the 240 wing hallway.3 The 140 wing and 240 wing hallways are sufficiently wide4 to provide ample room for the "wheelchair buffets," as well as for the tables and potted plants that have been placed there. The "wheelchair buffets" in these hallways are positioned near (but not flush against) the wall so they do not impede hallway traffic. The instant case involves allegations of "unsupervised access" of "24 cognitively impaired, ambulatory [Facility] residents,"5 on January 4, 2006, to the "wheelchair buffets" in the second floor dining room and in the 140 wing and 240 wing hallways. The discussion that follows concerns these three "wheelchair buffets" (Three Wheelchair Buffets), as they existed on and leading up to the date in question. At all material times to the instant case, each of the Three Wheelchair Buffets consisted of a "pretty thick" and relatively sturdy rectangular folding table on which four large (approximately a foot wide, a foot and a half long, and six inches deep), metal chafing dishes (with electric heating elements, temperature control knobs,6 and two-inch high, handled lids) were set side-by-side the length of the table. The table was "very low to the ground" to accommodate residents in wheelchairs. Running the length of the "tray line" side (or front) of the table was a "sneeze guard," beneath which was an additional Plexiglas barrier (Lower Barrier) that extended up to the height of the rims of the chafing dishes. There was a space of four inches between the bottom of the sneeze guard and the top of the Lower Barrier. It would have been extremely difficult, if possible at all, for a resident, standing or in a wheelchair in the front of the table, to reach through this four-inch space and "get the lid off" any of the chafing dishes (and there is no record evidence that any resident ever attempted to do so). Neither the rear nor the ends of the table had a "sneeze guard" or a Lower Barrier. At meal times, food prepared in the Facility's kitchen was brought to the table on aluminum pans having depths from approximately two and quarter inches to three and half inches. The pans, with the food on them, were placed in the "wells" of the chafing dishes, suspended over no more than two inches of water lying at the bottom of the dishes. The chafing dishes' heating elements, when turned on, heated the water, producing steam, which kept the food at appropriate serving temperatures. Residents (both wheelchair-bound and non-wheelchair bound) went down the "tray line," observed the food items in the unlidded chafing dishes, made their selections, and then communicated their choices to the Facility staff members (Buffet Staff), who were manning the buffet from their positions on the opposite side (or rear) of the table (which they were able to get to without difficulty given the distance the table was away from the wall).7 The Buffet Staff removed the selected food items, in appropriate portions, from the chafing dishes and placed them on plates. They then put the plates on trays and gave them to the residents.8 Residents were frequently accompanied to their seats by Facility staff, who carried the residents' trays. During the entire process, there was careful monitoring of the residents' movements. The "wheelchair buffets" were the product of considerable study and planning. They were borne out of desire on the part of Respondent, as a step in the development and implementation of a "person-centered [overall] care model"9 for the Facility, to move from the "institutional model" of food service ("where the trays are assembled and plated in another location and brought to the floor and then given to each resident") to a "more homelike model where residents could see the food [and] smell the food" and have the opportunity to select, from among the available choices, what they wanted to eat. The Facility's nutrition committee "submitted a request back in 2002" that such a change be made. It took Respondent quite a while to work out the details of implementing this change. Input was sought and obtained from the residents, their families, Facility staff, and outside consultants, as well as the Agency. Safety issues, including those relating to the placement of the "wheelchair buffets," were considered. The Agency was consulted regarding these matters, and it expressed no concerns about the planned locations of the "wheelchair buffets." As part of the planning process, Respondent set up a non-operational, unmanned "wheelchair buffet" (with empty chafing dishes) in the 240 wing hallway to see what the residents' reaction to it would be. The residents did not "seem interested in it at all." "They [simply] walked past it." Similar "trial runs" were conducted at the other three planned locations, with similar results. The "wheelchair buffet" in the 240 wing hallway was the first of the Facility's four "wheelchair buffets" to go into service. It became operational in 2004. Later that year, the Agency surveyed the Facility and found no deficiencies related to this "wheelchair buffet." "[P]leased that there were no concerns stated" with respect to this "wheelchair buffet," Respondent "moved forward with placing the other ones into service." By February 2005, the other three "wheelchair buffets" were up and running. Along with the "wheelchair buffet" in the 240 wing hallway, they have remained in service through the present. By all appearances, the Facility's transition to buffet-style dining has been a success. The Facility's "management services" office developed the following written "guidelines" for "[b]uffet [s]tyle [d]ining" at the Facility" (Buffet Guidelines): All residents will be offered an opportunity to partake of buffet meals in their dining rooms. This will provide choices to our residents, as well as offer a more interesting meal time environment. Residents will be asked if they would like to go through the buffet line, or if they would like nursing staff to tell them what is on the buffet. Diet will be liberalized as much as possible. See liberalized diets for long term care. There will be a choice of 2 entrees at all meals for all therapeutic diets and consistency types as well as a selection of starches and vegetables. We also provide a soup, and selection of salads, and 2 dessert choices for lunch and dinner. The Dining Services Director/dining services department will be responsible for maintaining standard operating procedures at remote dining locations: There must be a system in place to keep hot foods above 140° and cold foods below 40°F. Temperature logs must be maintained on foods and refrigeration units designated for resident use. Sneeze guards must be utilized on hot food tables and salad bars, etc. Residents that choose not to or are unable to eat in dining room will be served in their room by nursing staff. Room trays will be assembled from the steam table in the main floor dining room in accordance with physician ordered diet and delivered in closed food carts to assure maintenance of safe food temperatures. Operating Hot Food Tables Plug-up steam table Be sure table is free of crumbs, etc. Turn on switch. Select desired temperature setting Place pans in steam table bins Serve Clean steam table daily Cleaning Hot Food Table IMMEDIATELY AFTER USE Turn off steam table Cover all pans on steam table Replace all guards Empty and clean all pans daily Buffet staff were trained, in accordance with the Buffet Guidelines, to "turn [the chafing dishes] on in the morning, serve breakfast, turn [them] off after use, turn [them] back on before lunch, and then off, and then on before dinner." They did not always, however, in practice "turn [the chafing dishes] off after use." "[W]hen they were having problems keeping the food at hot temperatures, they would leave them on throughout the day periodically."10 That they did so was not common knowledge among the Facility's non-food service employees. At no time prior to the Agency's conducting the survey that led to the issuance of the instant Administrative Complaint had the Facility experienced any problems with residents making, or attempting to make, contact with the chafing dishes on any of the buffet tables, nor had the residents shown any interest in the buffet tables unless there was a meal being served. Furthermore, no resident had ever [accidentally] "fallen in close proximity to [a] buffet table." The survey referenced in the preceding paragraph was an annual survey that was conducted by the Agency from January 3, 2006, to January 6, 2006. The alleged deficiency that is the subject of the instant controversy was observed on January 4, 2006. On the morning of January 4, 2006, after breakfast had been served, Agency survey personnel observed the activity at and around the Three Wheelchair Buffets. At the time of these observations, there were no Buffet Staff manning the tables and the lidded chafing dishes on the tables were turned on and had hot water (with temperatures of 149 degrees Fahrenheit or more11) in them.12 Agency survey personnel found the lids of the chafing dishes too hot for them to hold in their bare hands when they went to take the lids off.13 Although there were residents in the vicinity of the buffet tables during these observations, no residents were seen going up to the tables to examine or touch the chafing dishes. The activities at and around the "wheelchair buffet" in the second floor dining were observed from approximately 9:09 a.m. to 9:37 a.m. (Dining Room Observation Period). Residents 26 and 27 (both of whom had transitioned to the Facility from the Westminster ALF) were in the dining room this entire time. Resident 26 used a wheelchair and, according to the records maintained by the Facility, had mild cognitive impairment, although his impairment was "not particularly obvious." He was someone who "stay[ed] in his wheelchair." Although he "could move himself," there was no reason to believe, based on prior experience, that he would attempt to approach the buffet table in the dining room between meals. Resident 27 also used a wheelchair. She was deaf, blind, and mute. According to the records maintained by the Facility, she had severe cognitive impairment. When she was sitting in her wheelchair in the dining room and wanted to leave, she would "tap[] her foot" and a Facility staff member would come and wheel her out. She did not "move about the unit unaccompanied." There was no reason to believe, based on prior experience, that she would at any time attempt to approach the buffet table. During the Dining Room Observation Period, approximately five other persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise) went "[i]n and out of the dining room" (the doors to which were unlocked). No Facility staff member took any action to "redirect" these individuals. For a portion of the Dining Room Observation Period, Jim Gagnon, Ph.D., a "contract" licensed clinical social worker, was seated facing Resident 26 and engaging in a conversation with him. "[T]here were [also Facility] staff in and out of the dining room periodically [during the Dining Room Observation Period, but] there was no continuous supervision." In addition, there were Facility staff "at the nurses' station intermittently" and they could "see into the dining room" (albeit not the entire dining room). The activities at and around the "wheelchair buffet" in the 240 wing hallway were observed from approximately 10:10 a.m. to 10:37 a.m. (240 Wing Observation Period). During the 240 Wing Observation Period, there were persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise) who passed by (but did not stop at) the buffet table. Some were walking. Others were in wheelchairs. Though there were Facility staff in the hallway (one engaged in an activity with approximately 12 residents, and others entering and exiting the resident rooms off the hallway), no staff member was "continuous[ly]" within twenty feet of the table. The activities at and around the "wheelchair buffet" in the 140 wing hallway were observed from approximately 11:10 a.m. to 11:16 a.m. (140 Wing Observation Period). During the 140 Wing Observation Period, there were approximately six persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise) who were "just sitting or walking around [and] chatting" in the hallway. No Facility staff member was nearby providing supervision. It was not until 1:00 p.m. that Agency survey personnel first brought to the attention of the Facility's administration that they believed that the conditions that they had observed with respect to the Three Wheelchair Buffets constituted a deficiency requiring immediate corrective action. Respondent timely took action to eliminate these conditions. The Facility was deemed by the Agency to be in substantial compliance with all regulatory standards on February 20, 2006.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency issue a final order dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 28th day of July, 2006.
