The Issue The issue in this case is whether Respondent is guilty of violating various provisions governing adult congregate living facilities and, if so, what penalty should be imposed.
Findings Of Fact Respondent is currently licensed to operate an adult congregate living facility at 1822 Nebraska Avenue, Palm Harbor, Florida. On May 25, 1993, Petitioner's surveyor conducted an annual survey of the facility. Petitioner's surveyor noted several deficiencies on the survey report and gave Respondent 30 days within which to correct the deficiencies. Upon resurvey on September 13, 1993, the Petitioner's surveyor found nine deficiencies uncorrected. In addition, Petitioner's surveyor found uncorrected one deficiency that had been cited during a survey on August 4, 1993. On May 25, 1993, Respondent had three employees. Two of them had been employed at the facility for over 30 days. Their files contained no documentation showing that they were trained in infection control procedures. The third employee was new and had no personnel file. At the September 13, 1993 resurvey, the three former employees had been replaced by three new employees. Two of the new employees had received the required infection control training, although their statements omitted a copy of the license of the registered nurse who did the training. The file of the other new employee lacked any statement concerning infection control training. However, Petitioner failed to show that the deficiencies cited in the May 25 survey were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. During both the May 25 and September 13, 1993 surveys, Respondent's sanitation inspection report was missing the second page, which would have listed violations and corrective actions regarding sanitation. On May 25, 1993, resident I. M. had been at the facility more than 30 days without a health assessment. On September 13, 1993, I. M. had been discharged, but four new residents had been at the facility more than 30 days without a health assessment. Petitioner failed to prove that the violation concerning I. M.'s health assessment was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, Respondent failed to document that a person duly certified in first aid was on duty at all times. A staff member identified as being alone at the facility on weekends had no personnel file. On September 13, 1993, two staff members identified on the staffing chart as being alone at the facility had no documentation of first aid training. On September 13, 1993, a third staff member who was left alone at the facility claimed to be a certified nursing assistant and therefore exempt from the first aid certification requirement. Respondent and the employee had no documentation to indicate that the employee was a certified nursing assistant. As noted above, the former employees were no longer employed at the facility on September 13. Petitioner thus failed to prove that the May 25 deficiencies concerning first aid certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, three employees at the facility had no statement that they were free of signs and symptoms of communicable disease. On September 13, 1993, one of the new employees had no such statement. The other two employees had statements, but they were signed by a registered nurse rather than an advanced registered nurse practitioner. Due to the turnover of employees, Petitioner failed to prove that the May 25 deficiencies concerning communicable- disease certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, Respondent kept a supply of nonprescribed, over-the- counter drugs, such as aspirin and milk of magnesia, that were not labelled for use by a particular resident. However, Respondent remedied the violation during the May 25 visit. On September 13, 1993, the surveyor found approximately six bottles of unlabelled, nonprescription over- the-counter medication. These medications had been brought by the family of a newly admitted resident. Respondent corrected the labelling deficiencies during the May 25 survey. Petitioner thus failed to prove that the May 25 labelling deficiencies were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993 Petitioner's surveyor found no activities calendar and, based on resident interviews and her observations at the facility, no evidence of significant activities being provided. On September 13, 1993, Respondent had an activities calendar, but it did not specify the starting time or duration of resident activities. Petitioner proved that deficiencies concerning the activities calendar were uncorrected during the applicable timeframe. On August 4, 1993, Petitioner's surveyor found in a resident's room a full-bedside rail, which was not ordered by a physician. On May 25, 1993, Petitioner's surveyor found, evidently in a different resident's room, a half- bedside rail, which was not ordered by a physician. Respondent presented a physician's order for a hospital bed, but mechanical bedside rails were not addressed in the order. Due to the involvement of different residents, as well as different types of restraints, Petitioner failed to prove that the May 25 deficiency concerning the full-bedside rail was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, the facility maintained a clearly inadequate supply of nonperishable food. During the September 13, 1993 resurvey, Respondent had significantly more nonperishable food on hand, consisting of 567.5 ounces of fruits and vegetables. The May 25 survey report informs Respondent only that he does not have on hand a one-week supply of nonperishable food. The survey does not calculate the amount of such food needed based on some formula. At the hearing, Petitioner's witness testified that the nonperishable food supply on September 13 was inadequate, based on a requirement of 16 ounces of fruits and vegetables per day for seven days for five residents. Based on the formula, Respondent needed a total of 560 ounces of nonperishable food on hand on May 25, 1993, when he had nowhere near an adequate amount. Under the formula, Respondent would have needed, on September 13, 1993, 784 ounces of nonperishable food because two more residents had been added to the facility. However, Petitioner failed to prove that 560 ounces of nonperishable food does not represent one week's supply for the seven residents at the facility on September 13, 1993. On May 25, 1993, Petitioner's surveyor found that one resident was residing at the facility without a signed contract. On September 13, 1993, at least one resident was without a signed contract.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of the violations set forth above and imposing a fine of $750. ENTERED on July 18, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on July 18, 1994. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 N. Dale Mabry Hwy. #100 Tampa, Florida 33614 James V. Vinson, Owner White House #1 1822 Nebraska Avenue Palm Harbor, Florida 34683 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
The Issue Whether or not Petitioner's license to operate Jennifer's Adult Care should be renewed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant facts are found. Jennifer Cason is the owner/operator of Jennifer's Adult Care. Jennifer's Adult Care is an adult congregate living facility (ACLF) situated at 1022 13th Avenue South in St. Petersburg, Florida. Petitioner's ACLF license expired by its terms on February 8, 1989. Petitioner's license renewal application was denied by the Respondent by letter dated May 25, 1989. Petitioner is the subject of a confirmed report of abuse dated October 19, 1988 confirming the exploitation of C.C. a resident in Petitioner's ACLF. Petitioner was advised that she could challenge the confirmed classification if she considered that the classification was inaccurate or that it should otherwise be amended or expunged. Petitioner failed to challenge the report. On October 21, 1988 Respondent imposed a moratorium on admissions at Petitioner's ACLF. The census at that time was eight residents. That moratorium has not been lifted and therefore remains in effect at this time. As of October 2, 1990, Petitioner has not requested an exemption of the confirmed abuse report to be qualified eligible to work with disabled adults or aged persons. Petitioner's ACLF has a history of deficiencies based on surveys dating from its inception. As example, Mrs. Diane Cruz, a human services surveyor specialist who has been employed by Respondent for more than eleven years conducted a survey of Petitioner's ACLF on May 17, 1988. As a result of that survey, the following deficiencies were noted: (a) The staff's time sheets were not posted or available for review; (b) the facility did not provide adequate staff and services appropriate to the needs of the residents, to wit: one resident required catheter care and there was either no staff person or other qualified third party provider available to provide the needed catheter care; (c) the food service staff was not knowledgeable regarding purchasing sufficient quantities of essential food, proper sanitary conditions necessary for safe food preparation and food types that meet the minimum requirements for a regular diet and (d) the staff person responsible for the supervision of self-medication was not trained. The deficiency relating to the lack of staff training and the supervision of self-medication was a repeat deficiency. Petitioner was allowed through June 17, 1988 to comply with the agreed corrective action plans. By July 18, 1988 most of the items cited as deficiencies were corrected however, Petitioner failed to correct two deficiencies relating to admission criteria and resident standards including (a) one resident's health assessment had not been completed more than 60 days prior to admission to the facility and five residents who were admitted to the facility for more than 30 days did not have a health assessment on file. Both of these deficiencies were corrected on October 5, 1988. Petitioner was also cited for certain deficiencies in the area of the physical plant in that (a) there was an inoperable ceiling light in Room 2; (b) there was no floor under the tub in the first floor corridor bath; (c) there were no non-slip safety devices in the tub of the upstairs corridor bath; (d) there was a hole in the ceiling at the south end of the first floor corridor and (e) the corners of the paneling in the first floor sitting room were broken off. Petitioner was allowed through June 17, 1988 to correct these deficiencies. As of July 18, items (a), (b), and (c) were corrected, however, items (d) and (e) remained uncorrected and were not in compliance until October 5, 1988. John C. Morton is Respondent's human services program director. He has been employed by the agency in excess of 11 years having served in his current position for approximately 3 1/2 years. As part of Morton's duties, he reviews survey reports, schedule surveys and respond to complaints received regarding ACLFs. Morton is familiar with Petitioner's facility from his review of survey findings and staff discussions. Morton prepared a deficiency report dated October 20, 1988 issued to Petitioner based on information he received from Respondent's office of adult protective services regarding a resident that Petitioner left in sole charge of Petitioner's ACLF. The resident that was left in charge was not trained to care for the residents of Petitioner's ACLF. As a result of that report, Morton cited Petitioner for failing to provide at least one staff member within the facility at all times; failure to provide sufficient staff to meet the needs of residents and leaving a resident in sole charge of other residents. The moratorium on admissions was issued effective October 21, 1988, based on that report. Mary Cook is employed by Respondent as a public health nutrition consultant. Ms. Cook has been so employed in excess of three years. She is familiar with Petitioner's facility having surveyed it on several occasions during the last three years. On January 23, 1989, Ms. Cook conducted a follow-up survey to determine whether Petitioner was in compliance with the moratorium. Following her review of the staffing patterns as listed on work schedules provided her, Petitioner listed only one staff person to work for the entire day on Sunday. However, when Ms. Cook arrived at the facility, two staff members were present. Upon inquiry, Ms. Cook was able to determine that the staff person who was present but who was not listed as working according to the schedule, also indicated that she was on duty at another area ACLF, Anita's Personal Care. Ms. Cook also participated in a survey conducted at Petitioner's facility on April 6 and 14, 1989. As a result of that survey, Petitioner was cited with deficiencies of minimum staffing standards based on the following: Several residents were being utilized as staff members to provide services to other residents including transportation, housekeeping and personal services; the facility did not have trained staff present at the facility necessary to supervise the administration of medication; (c) insulin was injected into one resident by a staff member who is not licensed to administer such medications; and (d) staff did not consistently document the residents deviation from normal food intake. Petitioner acknowledged receipt of FPSS Report No. 88-075890. Petitioner also admitted that she did not send a written request to contest the confirmed report nor has she sought an exemption to be qualified to work with disabled adults or aged persons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's renewal application for licensure as an adult congregate living facility and cancel Petitioner's conditional license for that facility. DONE and ENTERED this 10th day of December, 1990, in Tallahassee, Florida. Copies furnished to: Paula M. Kandel, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, FL 33614 William P. Murphy, Esquire 1500 Morgan Street Tampa, FL 33602 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1990.
