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 Thomas Singleton, Jr. is the holder of ACLF License No. P-4-16-0089C held under the provisions of Chapter 400, Part II, Florida Statutes. This is a form of temporary license for operating adult congregate living facilities. Mr. Singleton is also an applicant for a permanent license for operating an adult congregate living facility. Carolyn Bothwell, is a social worker with the Department of Health and Rehabilitative Services, who specifically works in the field of aging and adult services. Sane of her clients were residents of Tom's Rest Home, 1834 Silver Street, Jacksonville, Florida, which is owned and operated by Thomas Singleton, Jr. On January 10, 1978, Ms. Bothwell received a call from Mr. Singleton in which Mr. Singleton expressed some consternation about trying to collect money owed by one of his former boarder's at Tom's Rest Home. In Ms. Bothwell's opinion, Mr. Singleton's speech was slurred and he seemed very different than her prior contacts with him. On January 13, 1978, Mr. Singleton came to her office to further discuss the problem about the payment by the hoarder. His appearance was disheveled and his speech was incoherent. In this conversation of January 13, Singleton also mentioned that his wife had left him and that he wanted Ms. Bothwell to be at the boarding home when he told the boarders of his wife's departure. Ms. Bothwell went to the location of the boarding home around 12:00 moon on the date, January 13, 1978, in the presence of other members of the Department of Health and Rehabilitative staff. When she arrived at the boarding home, she discovered that the boarding home was locked and the boarders were on the front porch, locked out of the hone. Mr. Singleton had difficulty remembering why he had gone to meet with Ms. Bothwell earlier that day and made no mention of the fact that his wife had left. In Ms. Bothwell's opinion he appeared very vague and confused. Ms. and the other members departed the premises a short time later. On that .same date, January 13, 1978, June K. Frye , a District Program Specialist, with the Department of Rehabilitative Services dealing with adult congregate living facilities, spoke with Mr. Singleton. This conversation apparently took place in the morning. In the course of the conversation Ms. Frye mentioned that she had called Mr. Singleton to advise him of an upcoming reinspection on the question of considering his probationary license status. Ms. Frye felt that Mr. Singleton was incoherent and unable to give concrete information about the license situation. She asked to speak to someone else at the facility but Mr. Singleton was unable to assist her in that request. Prior to this conversation with Mr. Singleton, 345. Frye had never noticed any slurred speech or inability on the part of Mr. Singleton to respond to requests or to give information. Later that afternoon, Ms. Frye, in the presence of Mr. Otto G. Hrdlicka, went to the facility at 1834 Silver Street.' When they arrived they found that Bertie Mac Baldwin was in charge of the facility. Mr. Singleton's wife was not at the facility and Mr. Singleton was on the bed in his room, out of contact with the boarders. Several attempts were made to awaken Mr. Singleton, but none of those attempts were successful. It should be mentioned that Mrs. Baldwin was hired as a housekeeper whose hours were from 9:00 a.m. to 3:00 p.m. each day and at the time of the visit by Mrs. Frye and Mr. Hrdlicka, Ms. Baldwin was preparing to leave the facility. Ms. Baldwin had no responsibility in terms of cooking the food or attending to the overall needs of the boarders in the home. Testimony was also given in the course of the hearing that Mr. Singleton had written a check for insufficient funds to April Russel on January 15, 1978. This check was in the amount of $50.00. Restitution was made on the check, however. Testimony was also given that Mrs. Frye had been approached by Marion Thomas, a cab driver who claimed that Mr. Singleton had written him checks on January 13, totaling $50.00, for which there were no sufficient funds. Again restitution was made for those checks. A representative of the Atlantic Bank of Springfield, Jacksonville, Florida, testified in the course of the hearing and indicated that the operating account of Mr. Singleton for his business Ton's Rest Home had been closed out in February at a time when the account was overdrawn $151.90. Subsequent to the January 13, 1978, incidents at the rest home, the boarders have been moved and placed in other facilities. Part of the motivation for such removal was due to the fact that some of the patients had come to the boarding home after being released from the Northeast Florida State Hospital, at Macclenny, Florida, an institution for the treatment of patients with mental illness. It was felt by the program coordinators of the adult congregate living facilities that Mr. Singleton would be unable to properly care for these individuals and others in his boarding home and in view of the fact that no other employees were in a position to take care of the needs of the individual boarders, the decision was made to remove them from Tom's Rest Home. Mr. Singleton gave testimony in the course of the hearing and indicated that he had suffered a severe stomach disorder beginning in April, 1977 and had undergone an operation to remove part of his colon. He says this caused him to take a number of pills as treatment. In addition he indicated that he had had some domestic problems with his wife. He also stated that on January 19, 1978 through January 23, 1978, he received psychiatric treatment in a local hospital, in Jacksonville, Florida, for his condition. He described the condition as a collapse of his nerves, which was brought on, according to Mr. Singleton, by failure of the treating physician who dealt with his colon problem to respond to a need to control his blood pressure. The events of January 13, 1978, and the state of Mr. Singleton's finances have lead to a complaint letter of January 19, 1978. Mr. Singleton has received that letter and been given an opportunity to respond to it. The complaint letter falls into two broad categories. The first category pertains to the matters of January 13, 1978 and the second category pertains to the financial situation of Mr. Singleton. Under the matters of January 13, 1978, the Department of Health and Rehabilitative Services has alleged violations of Chapter 10A-5.06(5)(b)(2); 10A-5.09(1), (4)(a), and (6), Florida Administrative Code, and Section 400.414(2)(a)(d) and Section 400.441(2), Florida Statutes. Those provisions read respectively: 10A-5.06 Operational Standards. Facilities shall offer close supervision and living conditions as is necessary to the condition of the resident. This includes supervision of diets as to quality and quantity, and watchfulness over the general health, safety and wellbeing of residents. There shall be daily awareness of the residents by designated staff of the facility as to the apparent well-being of the individuals with sufficient provision for contacting the resident's physician, if the resident has not already done so, at any time there appears to be significant deviation from his normal appearance or state of health and well-being. Appropriate notice of such instances shall be recorded in the personal records of the individual. * * * (5) The minimum personnel staffing for adult congregate living facilities shall be: * * * 2. There shall be at least one staff member on call at all times when residents are in the facility. 10A-5.09 Personnel Standards. The administrator of a facility shall: (1) Provide such qualified staff as are necessary to assure the safety and proper care of residents in the facility. * * * (4) Assure that each person serving in any official capacity in the facility shall: (a) Be on duty, alert and appropriately dressed during the entire tour-of duty. In smaller facilities it is permissable for the administrator to be on call during normal sleeping hours. * * * (6) Insure that the staff is mentally and physically capable of performing their assigned duties. They shall be free of any communicable diseases which would present the hazard of transmission to resident or other staff member. If any staff member is found to have or is suspected of having such disease, he will be removed from his duties until the administrator determines that such risk no longer exists. 400.414 Denial, suspension, revocation of license; grounds. * * * Any of the following actions by a facility or its employee shall be grounds for action by the department against a facility: An intentional or negligent act materially affect- ing the health or safety of a resident of the facility * * * (c) Violation of the provisions of this act or of any minimum standards or rules promulgated hereunder. 400.441 Rules establishing minimum standards. Pursuant to the intention of the Legislature to provide safe and sanitary facilities, the department shall promulgate, publish, and enforce rules to implement the provisions of this act, which shall include reasonable and fair minimum standards in re- lation to: * * * (2) The number and qualifications of all personnel having responsibility for the care of residents. It is established through the evidence that at all times on January 13, 1978, when the events as described took place, those boarders who had been assigned to Tom's Rest Home were living in that facility. Therefore, an examination of the events of January 13, 1978, as reported above, in view of the requirements set forth in the Florida Administrative Code which are related herein; demonstrates that Thomas Singleton, Jr. was in violation of those conditions and is subject to the penalties for such violation, to include revocation of the temporary licence ACLF License no. P-4-16-089C and the denial of an unrestricted license. Moreover, the financial disarray of Mr. Singleton's business account for Tom's Rest Home, which was shown in the months of January and February, 1978, demonstrates a violation of Rule 10A-5.08(1), Florida Administrative Code, which reads: 10A-5.08 Fiscal Standards. The administrator of a facility shall maintain fiscal records in accordance with the requirements of Chapter 400 F.S., Part II. There shall be a recognized system of accounting used to accurately reflect details of the business including residents' "trust funds" and other property. The fiscal and "trust fund" records shall reflect a verified statement. The facility shall: (1) Be administered on a sound financial basis consistent with good business practices. Evidence of issuance of bad checks or accumulation of delinquent bills far such items as salaries, food, or utilities shall constitute prima facie evidence that the ownership lacks satisfactory proof of financial ability to operate the facility in accordance with the requirements of Chapter 400 F.S., Part II. This would also establish a sufficient basis for denying any application for an unrestricted license, because it would show that the applicant has failed to demonstrate satisfactory proof of financial ability to operate and conduct the facility as required by Section 400.411(2) , Florida Statutes.
Recommendation It is recommended that the ACLF License No. P-4-16-0089C, held by Thomas Singleton, Jr. be revoked. DONE AND ENTERED this 17th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert M. Eisenberg, Esquire Department of HRS Post Office Box 2417F Jacksonville, Florida 32231 Thomas Singleton, Jr. Tom's Rest Home 1834 Silver Street Jacksonville, Florida 32206
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 Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Retirement Life Center, Inc., is licensed to operate Inverrary Retirement Center Annex at 5640 N.W. 28th Street, Lauderhill, Florida as an adult congregate living facility in compliance with Chapter 400, Part II, Florida Statutes. On October 27, 1985, at approximately 11:46 a.m. the Broward County Emergency Services received a call in reference to a person bleeding from the mouth at Inverrary Retirement Center Annex. Two paramedics with Broward County Emergency Services responded to the call and immediately went to the Respondent's adult congregate living facility. Upon arrival, the paramedics went to the fence but were unable to enter the premises because a locked padlock was on the gate. There were no staff members from the facility waiting for the emergency unit. The paramedics yelled out and rang a bell in an attempt to get someone to unlock the gate. One female staff member went to the gate, but she did not have a key so she left to get someone else. At least two minutes were wasted while the paramedics attempted to gain entry into the facility. When the gate was finally unlocked, the paramedics found the victim prone on the floor of the cafeteria, cyanotic and in cardiopulmonary arrest. The Respondent had previously performed an administrative inspection of Inverrary Retirement Center Annex on February 22, 1985. At that time, one of the deficiencies cited included the fact that locks were on the fence gate. When the facility was re-inspected on June 11, 1985, the deficiency had been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered assessing an administrative fine of $500.00 against Retirement Life Center, Inc., d/b/a Inverrary Retirement Center Annex. DONE and ORDERED this 8th day of May, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 8th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4214 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Addressed in Conclusions of Law section. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 7. Rejected as a recitation of testimony and/or contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 4. Adopted in Findings of Fact 3, 4 and 5. Adopted in Finding of Fact 7. COPIES FURNISHED: Dr. Martin Marenos Inverrary Retirement Center Annex 2057 North University Drive Sunrise, Florida 33322 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 Northwest 167th Street Suite 210 Miami, Florida 33014 Sam Power 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, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Darlington House is an adult congregate living facility owned and operated by Darlington Corporation under a license issued by the Department of Health and Rehabilitative Services. Darlington House has approximately five full-time residents and had five residents at all times relative to the events set forth in the administrative complaint. On January 22, 1985, personnel of the Department of Health and Rehabilitative Services conducted an inspection of Darlington House. A report of that inspection contained the following annotation: Medications were being administered by an unlicensed employee as evidenced by the employee placing medication in a spoon and dispensing it to residents. On March 6, 1985, the Department of Health and Rehabilitative Services issued a Notice of Deficiencies indicating that there was insufficient supervision of administration of medication. On March 14, 1985, the Respondent responded to the notice of deficiency indicating that all medications would be administered by or under the supervision of a person who would be either licensed as a practical nurse or registered nurse. On April 8, 1985, the Department conducted an inspection of Darlington House. A list of the deficiencies included the following entries. ACLF 28. The facility did not have job descriptions available for review. ACLF 55. The facility did not have food service policies and procedures providing for the nutritional care of the residents. On July 31, 1985, the Petitioner conducted an inspection of Darlington House. Gail Stanback, the temporary employee on duty, was unable to produce written copies of the job descriptions and nutritional policies and procedures during that inspection. The inspector also found on the kitchen counter plastic cups containing medication which had been transferred from original storage containers into the plastic cups by a licensed nurse in preparation for giving the medication to the residents. Darlington Corporation had written a job description for the position of the full time employee of Darlington House responsible for providing personal care to residents. This job description was located at the corporate offices of the corporation in Holiday, Florida, at the time of the agency's inspection. Similarly, Darlington Corporation had written policies and procedures pertaining to nutrition at Darlington House. At the time of the inspection, a copy of these policies and procedures was located at the corporate offices of Darlington House. Copies of the job description and policies and procedures for food service were received into evidence. The report of inspection of the agency for April 8, 1985, does not reference any deficiency involving the supervision or administration of medication.
Recommendation Having found the Respondent guilty of failing to maintain on the premises as required by rule copies of its nutritional policies and procedures, contrary to Rule 10A-5.20, Florida Administrative Code, it is recommended that the Respondent be fined One Hundred Dollars ($100.00). DONE AND ORDERED this 2nd day of June 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of May 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0307 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. All of Petitioner's and Respondent's Proposed Findings of Fact were adopted except for the following: Respondent's Proposed Findings of Fact: 5. Rejected; irrelevant. 12. Rejected; irrelevant. Petitioner's Proposed Findings of Fact: 10. Rejected; conclusion of law. COPIES FURNISHED: Mr. William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Steven W. Huff, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Barbara McPherson, Esquire District V. Legal Counsel 2255 East Bay Drive Clearwater, Florida 33518 Scott L. Knox, Esquire 1017 Bartelt Road Holiday, Florida 33590
The Issue The issue is whether Petitioner may change Respondents' license to operate an assisted living facility from superior to conditional.
Findings Of Fact Respondents own and operate an assisted living facility in Fort Myers known as Cypress Manor. On October 1, 1998, Petitioner's surveyors conducted an inspection of Cypress Manor. The Administrative Law Judge admitted the October survey strictly for the purpose of establishing that an earlier survey had occurred prior to the follow-up survey described in the next paragraph. In the absence of a stipulation or witnesses to establish the truth of the relevant contents of the October survey, the evidentiary ruling precludes the use of the October survey to prove the truth of the relevant contents. On November 24, 1998, Petitioner's surveyors conducted a follow-up survey of Cypress Manor. During the November follow-up survey, the surveyors identified two violations (Tags) that are the subject of this case. Tag F 326 alleges that Respondents did not provide a therapeutic diet for two of the residents. Tag F 371 alleges that Respondents did not store and serve food under sanitary conditions. As for Tag F 326, one surveyor determined that Resident 11, who had diagnoses of nutritional deficiency, renal failure, dehydration, hypertension, and hypovolemia, was receiving hemodialysis three times a week. The evidence established that Resident 11 was receiving a therapeutic diet at Cypress Manor. Any possible deficiencies in paperwork did not prevent the delivery of such a diet to Resident 11. Also under Tag F 326, one surveyor determined that Resident 1, who had diagnoses of cardiopulmonary disease and congestive heart failure, was receiving the dietary supplement, Ensure, on the orders of Respondents' registered dietician. The evidence did not establish that Resident 1 received an excessive amount of carbohydrates from her diet, including the Ensure. As for Tag F 371, one surveyor determined that cold turkey to be served to residents had reached the temperature of 52 degrees while still in the kitchen and peaches had reached 64 degrees. The surveyor saw whipped cream left on a resident's table for 45 minutes before it was returned to the refrigerator, presumably for reuse. For proof that these temperatures constitute deficiencies, Petitioner relies on the testimony of a witness to establish the contents of the u. S. Food and Drug Administration 1997 Food Code. However, the witness did not cite to a specific provision of either version of the Food Code, nor does Petitioner's proposed recommended order cite to such a provision. The alleged deficiencies do not rise above Class III deficiencies because the alleged deficiencies have no more than an indirect or potential relationship to the health, safety, or security of the nursing home facility residents.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order changing Respondents' license to superior for the relevant period. DONE AND ENTERED this 27th day of July, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 27th day of July, 1999. COPIES FURNISHED: Karel L. Baarslag Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33906-0127 R. Davis Thomas, Jr. Qualified Representative Broad and Cassel Post Office Drawer 11300 Tallahassee, Florida 32301 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact The Petitioner, Vinder Homes, Inc., d/b/a The White House of Vinder Homes, Palm Harbor, Florida, is an 8-bed licensed adult congregate living facility. The Petitioner was licensed on February 5, 1986. On January 29, 1986, the Respondent, the Department of Health and Rehabilitative Services, sent an inspection team to the Petitioner's facility to conduct the initial survey. Accompanying the team was Earl T. Wright, an employee of the Respondent. Present at the Petitioner's facility during the initial survey was Robert A. Jones, and James C. Vinson, the owner and applicant for the license. During the survey, the HRS survey team identified several violations of rules or statutes governing an adult congregate living facility. At the end of a survey conducted by HRS of adult congregate living facilities, HRS normally follows the procedure of orally describing and explaining the rule violations that have been found to those persons representing the facility who are present during the survey. The representative of the facility is then asked to sign an "exit letter." The "exit letter" is a form that is given to the facility representative to explain the procedures and deadlines that must be followed to correct the violations. HRS exhibit 1 is a copy of the "exit letter" given to the representatives of the Petitioner on January 29, 1986, at the conclusion of the survey. The letter was signed by Mr. Jones, who was expressly authorized by Mr. Vinson to sign the letter on that date on behalf of the Petitioner, and to receive a copy on behalf of the Petitioner. The Petitioner, through its duly authorized agent, was reminded by HRS exhibit 1 that it had been advised of the deficiencies and had been requested to write them down. It was further advised that a time frame had been established for correction of each deficiency and that it could request additional time, if needed. It was further advised that an unannounced revisit would be conducted after the date of correction to determine if the corrections had taken place. It was further advised by the exhibit that it was required to correct each deficiency by the date established, and that failure to do so might result in the assessment of an administrative fine. At the conclusion of the survey on January 29, 1986, Mr. Jones, the authorized representative of the Petitioner, was told by the HRS survey team the nature of each of the violations found, and was advised concerning the period of time established for correction of each asserted violation. Mr. Vinson had thee opportunity to learn about the violations as well, but it is unclear whether he availed himself of the opportunity. At some time after January 29, 1986, and before April 1, 1986, the Respondent mailed a copy of HRS exhibit 2 to the Petitioner. It was mailed to the Petitioner at the address of the facility. This was the address given to HRS in the license application by Mr. Vinson. HRS exhibit 3. Mr. Vinson had not requested that notices be sent by HRS to any other address. HRS exhibit 2 is a form used by the Respondent to give written follow-up notice to the adult congregate living facility of the violations and correction schedule. It is intended to give written notice of that which had already been orally discussed with the facility representative at the time of the survey. The violations listed on HRS exhibit 2 are the same violations which were orally described and explained to the authorized representative of the Petitioner on January 29, 1986. On April 1, 1986, Mr. Wright conducted an unannounced reinspection of the Petitioner's facility. A copy of HRS exhibit 2 was present at the facility on April 1, 1986, when Mr. Wright conducted his unannounced reinspection. By April 1, 1986, the Petitioner had corrected some of the rule violations listed on HRS exhibit 2. The Petitioner, through its authorized representatives present at the facility, in fact received a copy of HRS exhibit 2 before April 1, 1986. The Petitioner presented no evidence that HRS exhibit 2 was received by its authorized representative in an untimely manner, i.e., at some time after the deadline had passed for correction of violations. Mr. Vinson testified that he never received a copy of the exhibit, but his authorized representative, at the address he had given to HRS as the address of the licensed facility, did receive it. The following are the four violations contained in HRS exhibit 2 that are in dispute in this case. Each is alleged to have occurred on January 29, 1986, and to still to have not been corrected on April 1, 1986: A copy of the Resident Bill of Rights was not posted in the facility. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department. The facility did not have back-flow devices to prevent contamination from entering the water supply. The fire alarm system was not continuously maintained in reliable operating condition. A copy of the Resident Bill of Rights was not posted in the facility on January 29, 1986, or on April 1, 1986. Mr. Vinson's testimony that he "thought" it was posted is insufficient to overcome the proof presented by the Respondent. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department on either January 29, 1986, or April 1, 1986. Mr. Vinson's testimony that he thought Mr. Jones would have completed the course is not sufficient. Mr. Vinson did not produce Mr. Jones to testify, nor did he produce any record of completion of the course. The facility did have back-flow devices to prevent contamination from entering the water supply on January 29, 1986, or on April 1, 1986. The testimony of Mr. Vinson is credited over the contrary testimony of Mr. Wright. Mr. Wright did not explain how he conducted the inspection of the back-flow devices, and did not explain what he found and how that resulted in the conclusion that back-flow devices were not present. Mr. Vinson, on the other hand, stated that he built the building himself, that he installed back-flow devices, that such devices were required by his building permit, and that he obtained a certificate of occupancy following construction. The Department has not proved the point by a preponderance of the evidence. The proof that the facility did not have a fire alarm system that was continuously maintained in reliable operating condition on January 29, 1986, was not adequate to prove this fact by a preponderance of the evidence. Mr. Wright acknowledged that a fire inspector (who did not testify) accompanied him on the survey and conducted that portion of the initial survey. Although Mr. Wright testified that he heard the fire inspector attempting to work the fire alarm system, this second hand evidence is not sufficient to prove that the system was not in good and operable mechanical order on January 29, 1986. Moreover, the proof is not adequate that the system was not mechanically operable on April 1, 1986. Mr. Wright asked the young woman present during the revisit to work the system, and she was not able to do so because she did not know how to operate it. Mr. Wright did not try to work it either. Thus, no one conducted a test of the system, and there is, therefore, no evidence in the record to show that the deficiency that existed on January 29, 1986, had not been corrected. It must be remembered that the deficiency that existed on January 29, 1986, was not that the manager or administrator of the facility could not operate the fire alarm system, but that the system was mechanically inoperable. There were no elderly persons present in the Petitioner's facility during the initial survey on January 29, 1986, but on April 1, 1986, the young woman in charge of the facility was serving breakfast to four elderly persons. None of the violations discussed above were considered by HRS to be of sufficient gravity to deny issuance of the license.
Recommendation It is therefore recommended that the Department of Health and Rehabilitative Services enter its final order finding that Vinder Homes, Inc., d/b/a the White House of Vinder Homes, Palm Harbor, Florida, has failed to correct the first two violations described above in the time established by the Department, and assessing a total civil penalty of two hundred dollars ($200). DONE and ENTERED this 21st day of July, 1987. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July 1987. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 John Brook, Esquire 695 Central Avenue Suite 213 St. Petersburg, Florida 33701
The Issue The issues to be decided in this proceeding concern whether the Respondent’s license to operate a nursing home should be disciplined by the imposition of the a Conditional License due to purported violations of nursing home regulatory rules.
Findings Of Fact The Respondent is an agency in the State of Florida charged with inspecting nursing homes and enforcing nursing home licensure requirements and performance standards in accordance with Chapter 400, Florida Statutes, and Rule 59A-4.128, Florida Administrative Code. The Petitioner rates nursing home licensees as either superior, standard, or conditional pursuant to this rule provision. The Petitioner is a licensed nursing home located and operating in Brooksville, Florida. It is known as Eastbrooke Health Care Center. (Eastbrooke; Petitioner). The Respondent surveyed the Petitioner for performance evaluation purposes on May 31, 1996, and conducted a follow-up survey visit on October 31, 1996. The Respondent claimed at hearing that the Petitioner was deficient in four (4) categories, referred to in the records as “tags”: F248, F250, F279, and F326. Each tag corresponds to a particular regulation. The findings in these tags or categories are incorporated into a survey report known as a “2567,” which is provided to the nursing home after the survey is completed. This form serves as a charging document for issuance of a Conditional License. Tag F248, concerning the May 1996 survey, requires that a nursing home “must provide for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interests and the physical, mental, and phychosocial well-being of each resident.” Under this category that Agency asserted the Eastbrooke was deficient because residents complained that they wanted more activities outside the building, like shopping. The Agency acknowledged that nothing in the rule required activities outside the building. Eastbrooke has a comprehensive and varied activities program, as evidenced by its activities calendar and its efforts to provide a variety of programs for its residents. It conducts resident meetings once a month, and attempts to meet the requests of residents expressed at those meetings. No request had been made for outside activities until May 1996, as evidenced by the Minutes of those meetings. An outside event was scheduled in June of 1996 for residents. While the Agency asserted as a deficiency that there had been no assessment of Resident 7’s activity preferences, the evidence actually shows, including excerpts from the resident’s file, that a complete assessment of such preferences, including a specific recreational assessment, and a care plan which provided for individualized activities, was done. AHCA also found, as a deficiency, that Resident 7 was to be involved in “group activities,” because the “therapeutics” of such activity, related to vision impairment, was not clear. It was explained by the Petitioner’s administrator, however, that such involvement was to prevent social isolation caused by the vision impairment. The Agency, in any event, failed to explain how involving a resident in group activities could violate the requirement to provide an activities program. The Agency asserted that the activities program for Resident 9 was deficient because she liked arts and crafts but not the activities that were offered to her. The Agency acknowledged that there was an activities plan for Resident 9, however. Additionally, the evidence shows that the resident had exceptionally long finger nails which she refused to cut and which prevented her from participating in most arts and crafts. Further, she was being treated for depression which was a cause for her refusal to participate in activities. The Agency’s assertion of the deficiency was based solely on the comments of the resident and not on any substantive evaluation. AHCA maintained that Resident 21’s recreational preferences were not known. However, this is inaccurate, as the recreational assessment was in the resident’s file and shows that the resident had been assessed for activities, was offered activities, and made his own independent choices. This assessment was either overlooked or not considered by the Agency. Concerning the October survey visit, the Agency did not review Residents 7, 9, or 21, who had been reviewed in the May survey to determine whether the alleged deficiencies it claimed to have found had been corrected. Instead it reviewed a different set of residents and the numbers do not correlate. Resident 9, surveyed in October, in effect is not the same person as Resident 9, who was surveyed in May. The Agency alleged in October that Resident 9 was provided one-on-one activities but did not receive them for two (2) weeks because he was asleep at the time the visits were scheduled. It therefore contended that Eastbrooke was deficient. The Agency does not dispute, however, that the effort was made to visit the resident, nor that there was an activities program in place for the resident. The record establishes that the resident was also participating in group activities during this time. The Agency’s assertion that the last activity for Resident 13 had been in January was shown, by October entries from that resident’s file, to be in error. The resident, who was completely unaware of her surroundings, was regularly provided various forms of sensory stimulation. Concerning the May visit and Tag F250, the Agency asserts that the failure to provide Resident 6 with lower dentures was a deficient practice. The Agency maintains that the resident claimed that she was embarrassed by not having her dentures. The evidence shows, however, that she was admitted to the nursing home from her own home without dentures and that she regularly went out to eat with her family after being placed in the nursing home without dentures and that she was on a regular diet with no problems in eating or maintaining her weight. It appears that dentures were not medically required and that their absence caused the resident no distress. The Agency’s findings were based solely on the resident’s isolated comment without further investigation. She had not expressed any interest in dentures before the survey was made. The Agency also cited the Petitioner concerning Resident 9, in spite of the surveyors acknowledgment that Resident 9 received all necessary social services and was being appropriately treated for the problem of motivation. The Agency’s admission contradicts any finding of a deficiency with regard to this resident. The Agency asserted that Resident 7 had dental pain and infection and should have had a dental consultation. The testimony and records reflect that the resident, while “at risk” for dental problems, did not suffer from pain and infection and that the facility was attempting to obtain a dental consultation, but had difficulty finding a dentist who would come to the facility in Brooksville. Reasonable efforts had been made to provide this service. They should continue. The Agency also found that the absence of social service notes for the discharge concerning Resident 20, constituted a deficiency. The records reflect that resident was in for a short term of rehabilitation for her broken hip and that constant contact was maintained with her family with regard to her planned return home to Michigan. Her family was made aware of her follow-up needs. The discharge needs in fact were fully addressed by the Petitioner. The Agency also contends that there was a lack of discharge planning for Resident 19 in violation of the pertinent regulation. The Petitioner, however, had only one (1) day’s notice of her discharge, as she was moved by her husband to another facility closer to their home when a bed became available there. Her husband had taken care of all the planning for the move although Eastbrooke did provide her with a discharge summary to assist the new facility in understanding her care needs. Upon re-surveying the Petitioner in October 1996, the Agency did not attempt to review Residents 6, 7, 9, 20, or 19, from the May survey to determine whether the alleged deficiencies as to them had been corrected. Resident 9 in the October visit had vision problems and the Agency alleged that the plan to have a vision consultation in December was not soon enough. The resident had had an evaluation in April and already wore glasses. She was being monitored for signs of vision problems. There was no urgent need to have her eyes examined before December, and the surveyor’s opinion that an examination should have been scheduled immediately, was unsupported by the established facts. Tag F279 requires a nursing home to “develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident’s medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment.” The Agency has asserted that, with regard to the May survey, that although Resident 1 should have had a care plan for dental problems, there was none. The records show, however, that there was a dental care plan, and it had been in existence since August 2, 1995, with periodic reviews and updates. The Agency also contended that Resident 4 had a problem related to activities that should have been addressed in her care plan. In fact, the comprehensive assessment, a standardized process, did not reveal a problem related to activities. An activities assessment and update had been done, nonetheless. The citation for Resident 7 was the same as that under F248. The surveyor did not understand why she should be involved in group activities. The purpose of this activity is well explained by the Petitioner. See Petitioner’s Exhibit 3, May Tab 8 A, B; Transcript pages 102-103. The Agency’s concern with regard to Resident 9 was apparently that there was not a specific goal related to mobility on the care plan. The problem of mobility was addressed on the care plan, however, as an “approach” rather than a “goal,” though there were documented problems getting the resident to agree to get out of bed. In any event the problem was addressed in the care plan as required by the regulation. In October the Agency did not review Residents 1, 4, 7, or 9, who had been surveyed in the May visit, to determine whether the alleged deficiencies were corrected. The problem found by the Agency with regard to Resident 7 in October was that although the resident was obese, the care plan did not show a goal of losing weight, but instead had a goal to be free of complications of obesity. The surveyor who offered this opinion, however, was not a nurse, doctor, or dietician. Care plans are formulated and reviewed at Eastbrooke by an inter-disciplinary team of health care professionals. The opinion of a surveyor without such expertise, who had not examined the resident in question, is of little probative value. Moreover, Eastbrooke presented sufficient reasons as to why a goal of losing weight would have been inappropriate for this resident. The Agency criticized the care plan for Resident 6 because the fluid level intake goal was not given in a specific measure. Other documents in the resident’s file, however, show the amount of fluid to be provided and the prescribed amount of fluid was put on the resident’s food tray by the dietary staff. The goal was therefore measurable in conjunction with other records in the file. There was no reason to restate the numbers in the care plan. AHCA also claimed that the goal for Resident 9 was not measurable, because it provided for the resident to “not display signs/symptoms of functional decline.” Functional abilities are measured by an instrument called a “Minimum Data Set,” or “MDS,” which is reviewed for each resident at least quarterly. This goal was therefore measurable. The Agency also criticized the care plan for Resident 13 as non-measurable in that it referred to “optimal quality of life.” The surveyor who made this notation did not have a copy of the care plan and did not know its date. The Petitioner presented the testimony of a registered nurse, who reviewed that resident’s entire file and was unable to locate a care plan containing a goal as described by the Agency. The Agency failed to prove this purported deficiency in the care plan. Concerning Tag F316, the Agency presented testimony concerning the May survey visit. The Agency presented no testimony regarding this “tag” related to the October survey. Without a repeat or continuation of the deficiency, it cannot form a basis for imposition of a conditional license, as explained in the Conclusions of Law below.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Agency for Health Care Administration establishing a standard rating for the Petitioner and rescinding the conditional rating. DONE AND ENTERED this 8th* day of December, 1997, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th* day of December, 1997. *Note: Corrective Order of January 12, 1998, references 9th day of December, 1997, as true filing date. COPIES FURNISHED: Thomas W. Caufman Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Donna H. Stinson Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Douglas M. Cook, Director Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact Elizabeth Ann Boarding Home is an adult congregate living facility licensed by Petitioner. On the evening of November 6, 1980 Leatrice Carpenter, a 56 year old female resident at this facility, fell in her room and struck the back of her head on the door leaving a cut in the scalp some two inches long running vertically near the center of the back of the head from the hairline up. She was found shortly thereafter by Rebecca McPherson (Becky), a 70 year old maid, who lived and worked at the facility. Becky saw Ms. Carpenter had a cut in the back of her head which was bleeding slowly. Becky put a wet towel around Ms. Carpenter's head, helped her into a chair which she pushed over the bed and then helped Ms. Carpenter into the bed. Becky did not notify Ms. Morris because Ms. Morris had been sick with heart trouble. Becky did dial Ms. Carpenter's daughter but received no answer. During the night Becky checked on Ms Carpenter off and on when Becky would get up. Ms. Carpenter is subject to epileptic seizures; however, her malady is under control with medication consisting of phenobarbitol and dilantin. Despite the medication she is still subject to focal seizures during which her eyes roll back but she retains control of her other bodily functions. Ms. Carpenter is also a member of the Senior Citizens Day Treatment Program run by St. Vincent's Hospital. She and others similarly unable to fully take care of themselves are transported to St. Vincent's Monday through Friday where they are placed in programs to occupy their day and help them cope with their situation. Ms. Carpenter is also given her medication of phenobarbitol and dilantin at St. Vincent's. She is given only one dosage to take with her when she leaves St. Vincent's in the afternoon. When Ms. Carpenter did not get off the bus at St. Vincent's the morning of November 7, Linda Hartley, the LPN in charge of Ms. Carpenter while she is at St. Vincent's, became concerned and went to the facility to find out what was wrong. When she arrived she found Ms. Carpenter in bed with the towel still wrapped around her head. Ms. Carpenter was comfortable and alert. When she removed the towel Ms. Hartley observed dried blood on the towel and blood-matted hair on the back of Ms. Carpenter's head. She saw the cut in Ms. Carpenter's scalp was not bleeding but believed it required medical attention. She talked to Becky and to Ms. Carpenter who told her the latter had fallen the previous evening shortly after supper and thereby obtained the injury. Ms. Hartley got Ms. Carpenter's daughter's (Ms. Watson) telephone number and returned to St. Vincent's to call Ms. Watson's residence. When she didn't get an answer she called the school at which Ms. Watson taught and left a message for Ms. Watson to call her as soon as possible. Both of Ms. Watson's phone numbers were in the St. Vincent's records for Ms. Carpenter. Early after lunch Ms. Watson returned Ms. Hartley's call and was told about her mother's accident. Ms. Watson proceeded to the facility to her mother who she found still in bed. When she saw the cut on Ms. Carpenter's head she helped her dress and took her to the emergency room at St. Vincent's where the wound was cleaned, dressed and sutured. This emergency room treatment is recorded on Exhibit 4. Eight stitches were required to close the cut. In late January, 1981, after Ms. Carpenter had been moved to a different adult congregate living facility, St. Vincent's Day Care Center reported to Petitioner the events surrounding the injury Ms. Carpenter had received. Later the same day Ms. Hartley called Petitioner to confirm the information (Exhibit 1). Two days later, on January 28, 1981 Ms. Watson complained to Petitioner regarding the failure of the facility to provide proper medical treatment when her mother was injured (Exhibit 1). An investigation conducted by Petitioner confirmed the facts above noted and resulted in the February 17, 1981 letter notifying Respondent of the intent to impose an administrative fine. Then the investigator talked to Ms. Morris, the owner of the facility, she found it difficult to focus Ms. Morris' attention on the November incident involving Ms. Carpenter. Ms. Morris recalled a fall Ms. Carpenter had taken in April, 1980 while she was away from the facility and kept referring to this incident as she was being questioned about the November accident. No notation regarding the current accident had been entered in the facility's records.
