The Issue The issue is whether Petitioner, Madeline Smith, d/b/a Madeline L. Smith Boarding Home, (Smith) is entitled to relicensure as an Adult Congregate Living Facility (ACLF) or should be denied relicensure based upon intentional or negligent acts which seriously affect the health, safety or welfare of a resident or residents of the ACLF, as more particularly stated in the denial letter dated September 26, 1985. Petitioner presented the testimony of Madeline Smith, E'Lona Hogan, Carlos Martinez, Jo Ann Brooks, John Wade, Stephen Noulin, John Noulin and Dorothy Kaplan. Petitioner's Exhibits 1-16, 18-20, and 24 were admitted in evidence. Respondent, the Department of Health and Rehabilitative Services (DHRS), presented the testimony of James Valinoti, Phillip Drabick, Paul Grassi and Elizabeth Baller, together with Respondent's Exhibits 1, 2 and 4 which were admitted in evidence. The transcript of these proceedings was filed on June 19, 1986. The parties were to file proposed orders within 30 days of the filing of the transcript. On July 10, 1986, Petitioner filed a Motion for Extension of Time, requesting until after August 4, 1986, to file a proposed order. The motion was granted by order dated July 15, 1986, wherein the parties were granted to and including August 15, 1986, to file their proposed orders. Respondent filed its proposed recommended order on August 18, 1986. To date Petitioner has failed to file a proposed order. Accordingly, this Recommended Order is entered without reference to or consideration of a proposed order by Petitioner. All proposed findings of fact and conclusions of law filed by Respondent have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part hereof.
Recommendation Based upon 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 renewal of the ACLF license of the Madeline L. Smith Boarding Home. DONE and ORDERED this 15th day of September, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1986. COPIES FURNISHED: James A. Pearson, Esquire 2435 Hollywood Boulevard Hollywood, Florida 33020 Dennis Berger, Esquire Office of Licensure and Certification 5190 N. W. 167 Street Miami, Florida 33014 William Page, Jr., Esquire Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Respondent's Proposed Findings of Fact. Each and every proposed finding of fact of Respondent is adopted in substance in Findings of Fact 1, 2, 3, and 4.
The Issue Whether or not Respondent failed to assure that a management staff person completed a required food service management training course and used proscribed bed side rails in an adult congregate living facility in violation of Section 400.419(3)(c), Florida Statutes.
Findings Of Fact At times material hereto, Respondent has been licensed to operate an adult congregate living facility (ACLF) pursuant to Chapter 400, Part II, Florida Statutes and Chapter 10A-5, Florida Administrative Code. On May 18, 1987, Diane Cruz, a representative of Petitioner, conducted an inspection of Respondent's facility. Ms. Cruz cited Respondent for failure to complete a food service management training course and the deficiency was memorialized in a written report of deficiencies received by Respondent on June 22, 1987. The survey report established a correction deadline of July 18, 1987. On January 7, 1988, Tammy Smith, also a representative of Petitioner, conducted an inspection of Respondent's facility which inspection revealed that neither Respondent nor any other staff member or designated management person had completed a food service management training course. Respondent completed a food service management training course on January 27, 1988, or approximately eight months after the correction deadline set forth by Petitioner in its May 18, 1987, inspection. Respondent did not request an extension of time to complete the requirement that a food service management training course be completed by a management employee. During Ms. Smith's inspection of Respondent's ACLF on January 8, 1988, Smith observed both full and three-quarter side bed rails being used in the facility. This deficiency was discussed with Respondent and was noted in Smith's written inspection survey report which was received by Respondent on February 2, 1988. Immediate correction of the deficiency was required and was noted on the survey report. On February 25, 1988, Sharon McCray, Petitioner's investigator, conducted a routine follow up inspection of Respondent's facility. Ms. McCray's inspection revealed that a full bed rail was still in use on one of the beds and that a three-quarter bed rail was in the facility. During the hearing, Respondent maintains that she was confused regarding the type of bed rail which is permitted in a ACLF and the circumstances under which a bed rail is permissible. Petitioner presented several survey reports and each report contains an invitation to contact the surveyor in the event that Respondent or a health care provider had any question regarding any citations noted on the survey reports. Respondent never requested clarification of the noted deficiencies on any of the deficiencies for which she was cited in the survey reports. Also, Petitioner admits that she both obtained and read the pertinent rules and statutes relative to operation of ACLFs prior to submitting her application for licensure in 1986. Respondent admits that the bed rails were in the facility at both the January and February, 1988 inspections by Petitioner. During the hearing, Patrick Hagen testified that the bed with the full size rails was donated by a local health agency and that it was not in use in the ACLF. Additionally, Respondent introduced a copy of a physician's order for a bed rail for one resident dated June 19, 1987. Mr. Hagen immediately took the rails off the bed with the full rails on it however they continued to use the second bed with the three-quarter (approximate 30 inches long)1 rail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $500.00 payable to Petitioner within thirty days of entry of its Final Order. DONE and ENTERED this 6th day of July, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1990. Copies furnished to: Edward A. Haman, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Amelia M. Park, Esquire 11311 North Armenia Avenue Tampa, Florida 33612 Sam Power, Agency Clerk 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
