The Issue Whether Respondent committed the offenses described in the Administrative Complaint issued by Petitioner? If so, what penalty should be imposed?
Findings Of Fact Elenor's Retirement Home (Home) is a licensed adult congregate living facility located in Miami, Florida. Eric Peavy is the owner of the Home. His wife is the Home's administrator. In November, 1989, OLC personnel visited the Home to conduct a survey to determine compliance with licensure requirements. Resident contracts on file were reviewed. Three of the contracts reviewed contained neither a refund policy of the type specified in Chapter 10A- 5, Florida Administrative Code, a bed hold policy, nor a statement as to whether the Home is affiliated with any religious organization. A previous survey conducted by OLC personnel had revealed that resident contracts on file at the Home lacked these provisions. The Peavys were so notified and directed to take corrective action. They failed to do so within the mandated time frame. This deficiency still existed as of the November, 1989, survey. During the November, 1989, survey, an examination was also conducted of the medication records maintained at the facility. The records were incomplete. They did not contain daily, up-to-date information regarding the administration of medication to three of the Home's residents. A previous survey conducted by OLC personnel had revealed that the Home did not have complete, up-to-date records concerning the daily administration of medication to all of its residents. The Peavys were so notified and directed to take corrective action. They failed to do so within the mandated time frame. This deficiency still existed as of the November, 1989, survey. During the November, 1989, survey, OLC personnel observed a resident who required greater care than the Home was able to provide. The resident was incapable of doing virtually anything for herself. Among other things, she needed to be administered medication. The Home, however, did not have the licensed staff to provide this service. The resident was totally incontinent. Because of her physical condition, the resident was unable to participate in any of the social activities at the Home. The same resident had been observed at the facility during an earlier survey conducted in June of that year. Although the matter of the inappropriateness of the resident's continued placement at the Home had been raised during the survey, the resident was still at the facility when OLC personnel returned to the Home in November. During the November, 1989, survey, the Home's fire drill records were inspected. There was no record of any fire drills being conducted at the facility in September or October of that year. This was not the first time that OLC personnel had found a lack of documentation concerning the conducting of monthly fire drills at the Home. Such a deficiency had been uncovered during an October, 1988, survey of the Home. The Peavys were made aware of this deficiency at that time. The Peavys were given written notice of the deficiencies found during the November, 1989, survey. OLC personnel revisited the Home in February, 1990, and discovered that all of the deficiencies found during the November, 1989, survey had been corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint, imposing a civil penalty in the amount of $1,000 for these violations and giving the Home a reasonable amount of time within which to pay this penalty. RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of May, 1991. STUART M. LERNER 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 6th day of May, 1991.
The Issue The issue presented here concerns the question of the entitlement of Petitioners to be granted a further license to own and operate an Adult Congregate Living Facility. Pursuant to Subsection 400.414(2)(b) Florida Statutes, Respondent has denied the relicensure of petitioners based upon the contention that the facility owner or operator "lacks the financial ability to provide continuing adequate care to residents." Respondent further relies on Rule 10A-5.21 Florida Administrative Code, for the licensure denial, claiming that evidence of issuance of bad checks or accumulation of delinquent bills constitutes prima facie evidence that the owners do not have the necessary financial ability to operate the facility. In particular, Respondent offered the following explanation of the license denial: Your credit history with the local credit bureau indicates long term delinquent accounts and civil judgments. During the period from January 4, 1982, until April 8, 1982, five (5) civil judgments were filed against you in the County Court of Citrus County. Copies of those actions (Aultman, Citrus Publishing, Allen, Schultz, Citrus Memorial) are enclosed. A report, a copy of which is attached, from the Citrus County Clerk of the Court indicates you have been convicted of worthless check charges. The Marion County Sheriff's Department has confirmed the existence of an outstanding warrant against you for worthless checks, a copy of which is attached. The Citrus County Sheriff's Department has levied against the real estate on which your facility is located, on instructions from a Judgment being issued out of the County Court of Pinellas County, Florida. You stated on the License Renewal Questionnaire that you owed no accounts which were over 60 days overdue. Your credit history, the levy against your property and a letter of 5/17/82 from the Citrus County Sheriff's office refute that claim. You stated on the License Renewal Questionnaire that you had had no checks in the last six (6) months returned for insufficient funds. Pending charges, set forth in the attached copy of warrant refute that claim.
Findings Of Fact Prior to April 7, 1982, the date that Respondent received the most current application for licensure as an Adult Congregate Living Facility, Petitioners had owned and operated such a facility in Inverness, Florida, under the business name Guiding Star. On that date, Respondent received the application for relicensure, a copy of which is Respondent's Exhibit 12, 2/ in the form as shown by that exhibit with the exception of the signatures found on the fourth, fifth and sixth pages. The application form indicated that Mrs. Wilder was the owner of the facility as had been reported in the past in other periods when the facility was licensed as an Adult Congregate Living Facility pursuant to Chapter 400, Florida Statutes. On the occasions prior to the April 7, 1982, request for relicensure, records of Respondent had shown Peggy Thornburg Wilder to be the owner and had also shown her to be the operator and administrator of the facility. In actuality, Peggy Thornburg Wilder had ownership interest in the facility, to include hiring practices; however, with the exception of twenty-three (23) days in August, 1981, Roy Wilder has been in charge of the day-to-day operations of the facility. (Peggy Thornburg Wilder, Petitioner, has been variously referred to for purposes of this hearing as Peggy Thornburg Wilder, Peggy A. Wilder, Peggy Ann Stone Wilder, Peggy Wilder, Peggy Ann Wilders and Peggy Thornburg.) On April 7, 1982, the date of receipt of the application, Roy Wilder and Peggy Thornburg Wilder were divorced. Nonetheless, with the exception of the twenty-three (23) days mentioned before, Roy Wilder had continued to live in the facility. On April 24, 1982, the Wilders were remarried. On April 29, 1982, an official with Respondent spoke to Mrs. Wilder and was told that Mr. Wilder was not in charge of the facility, notwithstanding his continued involvement as operator. As a result, the official believed Mrs. Wilder to be in charge of operations on the occasion of relicensure. On May 3, 1982, Mrs. Wilder told the official, a Karen Hubbell, that Mrs. Wilder had remarried her husband. During the pendency of the communications involving the application for the annual relicensure, it was discovered that the application signatures were missing and Hubbell requested that the application he signed in the appropriate places, which was subsequently accomplished as shown in Respondent's Exhibit 12. It was signed by Roy Wilder as operator and applicant. Mrs. Wilder did not sign as owner/applicant, and the form continued to reflect an application made in the name of Peggy Thornburg, as opposed to Peggy Thornburg Wilder. Respondent did not attempt to have Mrs. Wilder sign the application, and the application was processed with the name Peggy Thornburg being reflected as facility owner/operator/administrator in the body of the application form, and Roy Wilder being shown as the operator and applicant by signature. Nonetheless, it is evident, as it was in the past history of the facility, that Mrs. Wilder had ownership interest in the facility and Roy Wilder was operator of the facility. In deciding the question of relicensure under the April 7, 1982, application, Respondent focused its attention on the financial responsibility of Peggy Thornburg Wilder. In this process, the following items were discovered: A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, Civil Division, against Roy L. Wilder (also known as Roy Wilder) and Peggy A. Wilder in the amount of $786.56 plus $25.00 court costs. See Respondent's Exhibit 1. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, Civil Division, against Peggy Wilder d/b/a Guiding Star Nursing Home in the amount of $100.00 and $22.00 costs. See Respondent's Exhibit 2. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, Civil Division, against Peggy Wilder and Roy Wilder d/b/a Guiding Star ACLF Home, in the amount of $275.00. See Respondent's Exhibit 3. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, against Roy Wilder and Peggy Wilder in the amount of $61.95 and $15.00 costs. See Respondent's Exhibit 4. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, against Peggy Wilder in the amount of 44.50 and $21.00 costs. See Respondent's Exhibit 5. In the County Court of Citrus County, Florida, a plea by Peggy Wilder to the offense of obtaining property by means of a worthless check in the amount of $300 as nolo contendere to the offense charged, a finding of guilt and $115.00 costs in an action in which restitution was made. See Respondent's Exhibit 6. Reference Peggy Wilder in the County Court of Citrus County, Florida, a misdemeanor finding of violation of probation, a nolo contendere plea to that violation, a finding of guilt, a payment of $115.00 cost, a jail sentence of thirty (30) days. See Respondent's Exhibit 7. In County Court of Citrus County, Florida, misdemeanor worthless check charge in the amount of $168.29 against Peggy Wilder, a plea of nolo contendere to the offense charged, a finding of guilt, $115.00 cost, six months probation, special conditions of payment of $25.00 per month and an indication that restitution had been made. See Respondent's Exhibit 8. Copy of a Capias for the arrest of Peggy A. Wilder for two counts of worthless check Subsection 832.05(4), Florida Statutes, dating from April 1, 1982. Respondent's Exhibit 9. From the County Court, in and for Pinellas County, Florida, a notice of levy against Peggy Ann Stone Wilder, reference property in Citrus County, Florida, Lot 8, Block E of Highlands Trailer Park. See Respondent's Exhibit 10. Correspondence from the law firm of Jenkins, Brooks, Wharrier, Kaiser & Walters reference Item 10 instructing the Sheriff's office of Citrus, Florida, to withdraw the levy, in view of indication that Mrs. Wilder would make payments towards settlement of the matter. In view of the circumstances, that have been related above, on June 9, 1982, the application for relicensure of the Adult Congregate Living Facility known as Guiding Star was denied. 3/ Mrs. Wilder gave testimony in the course of the hearing. By way of explanation on the subject of her financial problems, she indicated that, following an October, 1981, notification of accusations which had been placed against Mr. and Mrs. Wilder, related to the then current license for the subject facility, there was a reduction of clients from twelve (12) in December, 1981; two (2) in July, 1982, and finally a closing of the facility in August, 1982. (A copy of the charges involved in DOAH Case No. 82-104 and the balance of the grounds for denial of license reapplication which have been withdrawn in the present action may be found as attachment "A" to this Recommended Order, to assist in understanding Mrs. Wilder's explanation.)
The Issue Whether respondent should be administratively fined $500.00 for allegedly operating an Adult Congregate Living Facility without obtaining a license in violation of Section 400.407(1) Florida Statutes (1981).
Findings Of Fact Respondent, Edith Bartholomew is licensed to operate a boarding house in her home located at 201 Gould Road, Dade City, Florida. (Testimony of Cruz, R-1.) On March 24, 1982, Dr. Frederick Timmerman, Chairman of the Long Term Care Ombudsman Committee, and Diane Cruz, Adult Congregate Living Facility Licensure Specialist, inspected respondent's boarding home. Six residents, unrelated to respondent, were receiving meals, care, and lodging at respondent's home. Five residents were present during the inspection. Dr. Timmerman talked with each patient for the purpose of determining their physical and mental condition and the kind and level of physical services provided them. Only one of the five residents was capable of caring for herself during an emergency, the other four were incapable of taking care of themselves during an emergency and required physical services beyond room and board. (Testimony of Timmerman, Cruz.) Respondent explained that she kept the residents' medication locked in a kitchen cabinet. At mealtime, she would retrieve their medications from the cabinet and distribute them to the residents making sure they took the correct amount. (Testimony of Timmerman.) Respondent also admitted that she assisted her residents in bathing. The residents confirmed to Dr. Timmerman that she helped them bathe. There is conflicting evidence on whether the residents are capable of caring for themselves during emergencies, whether respondent dispenses medications to them, and whether she helps them to bathe. The testimony of Dr. Timmerman is considered the most credible and worthy of belief. He is a professional physician with no discernable bias or interest in the outcome of this proceeding. Dr. Timmerman told respondent to apply for an Adult Congregate Living Facility License, a request that had previously been made by other Department personnel. Respondent declined, responding that it involved too much paperwork. (Testimony of Timmerman.) Respondent has consistently operated a home which furnishes excellent care and services to its residents. For a reasonable fee, she provides food, lodging, personal services, and loving care to the elderly people who reside there. Department officials are convinced that she provides a valuable and essential service; they have even recommended that older persons be placed in her facility. She has always been courteous and cooperative with Department personnel. (Testimony of Cruz, Timmerman.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be fined $500.00. DONE and RECOMMENDED this 10th day of November, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. 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 10th day of November, 1982.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Prior to its licensure as an adult congregate living facility, the respondent H & E Guest Home received an initial inspection by HRS on June 24, 1985. Various deficiencies were cited during this visit and all such deficiencies were corrected by September 10, 1985, the date of the revisit by HRS. Among the deficiencies cited by HRS were that "the facility income and expense records were not available for review," denominated by HRS as an "unclassified" deficiency, and that "menus were not dated and planned one week in advance," denominated as a Class III deficiency. At the time of this initial survey on June 24, 1985, there were no residents in the respondent's facility as it was not yet licensed or opened for operation as an adult congregate living facility. On June 17, 1986, HRS performed an annual survey on respondent's facility. During this survey, several deficiencies were found. As pertinent to the charges in this proceeding, HRS found that there were no fiscal records relating to the facility's financial operating status available at the facility site for review. This deficiency was denominated by HRS as a Class III repeat deficiency. The other repeat deficiency noted, also denominated as Class III, was that menus were not dated and planned one week in advance. Residents were in the respondent's facility on June 17, 1986. HRS proposes to levy a fine of $250.00 for the fiscal records deficiency, and a fine of $200.00 for the deficiency relating to menus. According to HRS, the impacts upon patients resulting from such deficiencies are, respectively, "without the records it would be difficult to determine the financial stability of the facility," and "it would be difficult to maintain a sufficient food supply, and the residents would not be aware of their meals in advance."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint be DISMISSED, without prejudice to HRS to conduct an unannounced visit to the respondent's facility to determine if the cited deficiencies have been corrected. Respectfully submitted and entered this 6th day of October, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 6th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1374 The proposed findings of fact submitted by the petitioner are accepted, except as follows: 2. Partially accepted; however, there was no evidence that the corrections were not timely made. 4. Accepted, but not included as irrelevant and immaterial to the issues in dispute. COPIES FURNISHED: Gaye Reese, Esquire Senior Attorney Office of Licensure and Certification 7827 North Dale Mabry Highway Tampa, Florida 33614 Aubrey E. Estes 3116 Ninth Street, East Bradenton, Florida 33508 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether the licensee, Robert Schmidt, should be subject to an administrative fine for failure to meet the background screening requirements at Dixie Lodge, an assisted living facility (hereinafter Respondent), and, if so, the amount.
Findings Of Fact The Agency for Health Care Administration (hereinafter the Agency) is the state agency responsible for the licensing and regulation of assisted living facilities. Respondent is licensed to operate as an assisted living facility in DeLand, Florida. Robert A. Cunningham was called as a witness for the Agency. Mr. Cunningham is a Health Facility Evaluator II. His duties include surveying assisted living facilities, adult family homes and adult day care centers. Mr. Cunningham testified that he was familiar with Dixie Lodge because he has been surveying this facility for approximately 15 years. On or about May 16, 2001, Mr. Cunningham conducted a complaint investigation of Dixie Lodge. Mr. Cunningham identified Petitioner's Exhibit One as a complaint investigation form. This contains a summary of his investigative findings. The last finding was that a care- giving employee, who did not meet the screening requirements, had been retained as an employee in a "contact" position. Mr. Cunningham identified Petitioner's Exhibit Two as a copy of the Agency's letter to the facility administrator outlining the findings of the complaint investigation. It states that the facility was in violation of Section 400.4174(2), Florida Statutes, and Rule 58A-5.019(3), Florida Administrative Code, regarding background screening on employees. The letter dated June 26, 2001, states that the inspection findings have been revised to reflect Tag A 1115, a Class II deficiency, as the result of an amendment in the law, effective May 15, 2001. Mr. Cunningham identified Petitioner's Exhibit Three as a copy of the recommendation for sanction inspection report narrative of the inspection conducted on May 16, 2001. Mr. Cunningham testified that the recommendation for sanction was prepared by Robert Dickson, a Facility Evaluator Supervisor in the area office. Mr. Robert Dickson was called as a witness for the Agency. His duties included supervising the field surveyors, who conduct the surveys of the licensed facilities, and reviewing and approving the survey work findings. Mr. Dickson is familiar with the survey at issue in this proceeding. Mr. Dickson identified Petitioner's Exhibit One through Nine. Mr. Dickson identified Petitioner's Exhibit Three as a copy of the sanction recommendation that he prepared. Mr. Dickson identified Petitioner's Exhibit Five as a copy of Section 400.414, Florida Statutes (2000), which gives the Agency the authority to deny, revoke licenses, and impose administrative fines. Mr. Dickson identified Petitioner's Exhibit Six as a copy of Section 400.4174, Florida Statutes (2000), regarding background screening and exemptions. Mr. Dickson identified Petitioner's Exhibit Seven as a copy of Rule 58A-5.019, Florida Administrative Code, regarding staffing standards and background screening. Mr. Dickson identified Petitioner's Exhibit Eight as a copy of Respondent's assisted living facility (standard) license for Dixie Lodge. Mr. Dickson identified Petitioner's Exhibit Nine as a copy of Respondent's request for a formal administrative hearing. Mr. Walker testified that at the time in question on May 16, 2001, his staff employee, Mr. Michael Roberts, did not have an exemption from background screening.
Recommendation Based upon the Findings of Fact, Conclusions of Law, and in consideration of the mitigating factors, it is RECOMMENDED: That the Agency enter a final order imposing a fine of not more than $500.00 against Respondent for failure to remove an employee who failed to meet the background screening requirements from a position working in direct contact with residents. DONE AND ENTERED this _____ day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STEPHEN F. DEAN 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 19th day of October, 2001. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Walker Richardson, Administrator Dixie Lodge 507 South Woodland Boulevard DeLand, Florida 32720 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308
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.
The Issue Whether Respondent committed the Class "II" violation alleged in Counts I and II of the Amended Administrative Complaint and, if so, what sanction(s) 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: The Facility is a 160-bed assisted living facility operated by Respondent and licensed by Petitioner. Resident #1 was admitted to the Facility on or about December 16, 2009, and was a resident of the Facility at all times material to the instant case, including March 21, 2010, May 2, 2010, and May 10, 2010. The "Resident Health Assessment for Assisted Living Facilities" form (Health Form) that was completed in conjunction with Resident #1's admission to the Facility reflected that Resident #1 had a history of alcohol abuse and depression and that, in the opinion of the "examiner" filling out the form, while "[d]aily [o]versight" of Resident #1's "well being and whereabouts" was needed, Resident #1 did not "pose a danger to [him]self or others."5 On March 21, 2010, at around 6:00 p.m., Resident #1 was involved in an incident at the Facility (March 21 Incident). The March 21 Incident was accurately documented (albeit in a manner that was vague and lacking in detail) in the following entry made by Facility staff on the Observation Log maintained at the Facility for Resident #1 (Resident #1's Observation Log):6 Resident [#1] is disoriented at this time and aggressive.[7] He has trouble with other resident [C.].[8] [Resident #1] is very altered and disoriented. I called the doctor for request and sent to the Hospital. I notified to his friend for let to know about the situation.[9] The aftermath of this incident was accurately documented in the following March 21, 2010, 7:00 p.m., entry made by Facility staff on Resident #1's Observation Log: I reported to the police that [Resident #1] is very aggressive and confused. He refused to go to the Hospital. These two entries made by Facility staff on Resident #1's Observation Log constitute the only record evidence concerning the March 21 Incident and its aftermath.10 The record evidence is silent as to the extent to which Resident #1 and the other residents of the Facility, including the one involved in the March 21 Incident, were being supervised by Facility staff at the time of the March 21 Incident. On May 2, 2010, Resident #1 was involved in an altercation with another resident of the Facility, Resident #5 (May 2 Incident). The Health Form that was completed in conjunction with Resident #5's admission to the Facility reflected that he was a five-foot, eight-inch, 289 pound man, with a history of chronic obstructive pulmonary disease, coronary artery disease, atherosclerotic heart disease, diabetes mellitus, morbid obesity, dilated cardiomyopathy, and kidney failure. The May 2 Incident and its aftermath were accurately documented by Facility staff by an entry written in Spanish on the Facility's Daily Communication Log for that date (May 2 Daily Communication Log). The following is the English translation of that entry:11 At midnight [Resident #5], [Resident #1] and [E. S.] were in the nurses' station happily chatting. All of a sudden, [Resident #1] verbally insulted [Resident #5] without any reason whatsoever.[12] Offended, [Resident #5] got up from his chair,[13] and [Resident #1] pushed his chest.[14] [Resident #5] called the police--while the police were on their way, [Resident #5] thought about what had happened and did not want to do anything improper, but at the same time he was worried about his safety because he had heard that [Resident #1] has a knife in his room.[15] [Resident #5] asked my opinion and I suggested that he tell the office about it, that you would resolve the problem in the best possible way and that he shouldn't file a report against [Resident #1], and [Resident #5] made his own decision to not have the police take [Resident #1] away. [Resident #1] had not always behaved this way, he was not acting normally. Ms. [E.] disappeared for over half an hour and since I know that she and Mr. [R.] are good friends I asked him about her. [Resident #1] heard me and made a show of the matter, he took charge of the matter as if he were the boss. Without my realizing it, he sent [E.] outside to look for [Ms. E.] and there is no reason for him to do my job. [Ms. E.] was in the back part of Munne accompanied by Mr. [N.]. I had already gone back there in the dark calling out to [Ms. E.] by name and [she] heard me but did not answer that she was there. If she had answered me I wouldn't have worried any more. When I looked at her I asked her: Did you hear that I was looking for you? And she answered that she had. The problem is that [Resident #1] is taking on a role that does not correspond to him, on top of a poor attitude; there was no need for these incidents. [I was] [t]rying to keep the other residents from realizing what was going on so that they would not get riled up and to avoid an even bigger commotion. This entry on the May 2 Daily Communication Log constitutes the only record evidence concerning the May 2 Incident. The record evidence is silent as to the extent to which Resident #1, Resident #5, and the other residents of the Facility were being supervised by Facility staff at the time of the May 2 Incident. On May 10, 2010, while he still was a resident of the Facility, Resident #5 was "punched"16 (May 10 Incident) and, as a result, sustained an injury (a two-centimeter laceration above his right eyebrow) for which he was taken to Larkin Community Hospital's emergency room for treatment. After receiving five stitches to close the laceration, he was discharged from the hospital. Other than the "[h]ospital [r]ecord[]" entry17 memorializing the statement made by Resident #5 to emergency room staff concerning his having been "punched" by an unidentified assailant,18 there is no record evidence as to what happened during the May 10 Incident. The record evidence is silent as to the extent to which Resident #5 and the other residents of the Facility, including Resident #1, were being supervised by Facility staff at the time of the May 10 Incident.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration issue a Final Order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 9th day of June, 2011, 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 9th day of June, 2011.
