Findings Of Fact Respondent's adult congregate living facility (ACLF) has been licensed since 1989. Respondent was organized by 10 families with chronically mentally ill persons who needed placement. The ACLF provides personalized care to each of its residents. On April 9 and 16 and May 2, 1990, Petitioner conducted a periodic survey of Respondent's ACLF. The resident population at the time was 10 persons. The survey notes the following deficiencies relevant to this proceeding: the personnel files of staffmembers contained no evidence that the staff were free of communicable diseases, which is a Class III violation of Rule 10A-5.019(5)(a)1, (b), (c), (e), (f), and (g) if not corrected by May 30, 1990; therapeutic menus had not been prepared and served as ordered by physicians and no menu patterns were on file, which is a Class III violation of Rule 10A- 5.020(1)(e) if not corrected by June 10, 1990; each resident had not been examined by a physician or licensed nurse practitioner within 60 days before admission, or within 30 days after admission, because one assessment was undated, one resident was admitted January 20, 1990, and still had no assessment, and one resident was admitted August 21, 1989, and had an assessment dated May 26, 1989, which is a Class III violation of Rule 10A-5.01818(1) if not corrected by June 15, 1990; certain residents lacked a health assessment showing the suitability of the ACLF placement because one assessment was undated, an assessment dated August 19, 1989, failed to show if the resident could walk, and eight of ten files failed to document if the residents required help from staff to evacuate the building in the event of emergency, which is a Class III violation of Rule 10A-5.0181(2)(a)1., 2., 3., 4., a., b., c., d., e., and f. if not corrected by June 2, 1990; and the resident's medical records failed to justify the admission and continued residence in the ACLF, which is a Class III violation of Rules 10A-5.0181(3)(a)1.a., b.c., d., e., ., and h.(I), (II), i(I)(II), j. and 10A-5.022(1)m. if not corrected by June 2, 1990. By receipt signed May 23, 1990, Peter Lee indicated that he had received a copy of the survey. On July 17, 1990, Petitioner conducted a resurvey of Respondent's ACLF to see if the deficiencies had been eliminated. The resurvey states that three staffmembers had provided no evidence that they were free of communicable diseases; the deficiencies regarding the therapeutic diets had not been eliminated because a recent order for one resident changed his diet but his menu had not been adjusted and another diet order "had been changed" and required clarification; the health assessment were still missing for the resident admitted August 27, 1989, and the assessment was still undated for the resident admitted January 20, 1990; and the medical records continued to fail to justify the admission and continued residency because a contract remained undated, the health assessment for a resident admitted on August 19, 1989, had not been corrected, and three of ten assessments still failed to indicate if the resident was able to evacuate himself. Another follow-up survey was completed by November 5, 1990. This survey reflects that the noted violations had been corrected. The three communicable diseases statements had been sent to Petitioner on August 2, 1990. The alleged violation involving therapeutic diets was eliminated on October 8, 1990, when Respondent supplied Petitioner information that all the diets were changed to regular diets. The alleged violations involving physical examinations and assessments, as well as medical justification for admission and continued residency, were eliminated on October 8, 1990, when Respondent submitted the necessary documents to Petitioner.
Findings Of Fact Cirilo Alvarez, at all times pertinent to the allegations in the complaint, operated an adult congregate living facility in Lake City, Columbia County, Florida, Briar's Haven Adult Care Center, under license number 03-12- 0128-BPS, issued by the Florida Department of Health and Rehabilitative Services. In late July or early August, 1982, Respondent, who is a psychiatric nurse specialist and who works full time at North Florida State Mental Hospital (Hospital) at Macclenny, Florida, took Woodrow Harrison, an elderly patient at that institution, into his home, Briar's Haven Adult Care Center, on pass status from the Hospital for periodic short visits. Ultimately, on July 30, 1982, Harrison was released from Macclenny and began living full time at Respondent's facility. On August 3, 1982, Sharon Stucky, a registered nurse case manager for the North Florida Mental Health Center (Center) in Lake City, Florida, did an intake interview with Harrison, who had just been released from the Hospital and who was living at Respondent's facility. Mr. Harrison was brought into the Center by Respondent's wife. Records from the Hospital pertaining to Harrison, which came to the Center, reflected that he suffered from a seizure disorder and a diabetic condition. His medication consisted of 300 mg. of Dilantin daily and 30 mg. of phenobarbital daily, and he was to receive a daily insulin injection. At the time of his release from the Hospital, he was furnished with a thirty-day supply of these medications. On the afternoon of August 13, 1982, Mr. Alvarez went into the Center with Mr. Harrison and asked to see Ms. Stucky. Respondent indicated that Mr. Harrison was having many physical problems. Earlier in the day, he had taken Harrison back to Macclenny to have him readmitted for seizures, incontinence, etc., even though he was taking his medications, but officials at the Hospital refused to admit him. Mr. Alvarez wanted him admitted to some facility in Lake City. Stucky, indicating she would have to talk with Harrison before taking any action, did so and felt she could see no change in his condition since her first interview of him on August 3, and she decided she could not justify having him recommitted to the mental hospital. Since Stucky wanted to find out if the seizures were the result of a physical problem, and she could not do a physical herself, she requested that Respondent take Harrison to a doctor for an examination. The Respondent again demanded that Harrison be admitted and, when Ms. Stucky refused, stated he would take Harrison to the hospital and leave him. Ms. Stucky talked with her supervisor to see if there was any way that Harrison could be readmitted to Macclenny, and it was determined there was not. When the information was related to Mr. Alvarez, he departed with Mr. Harrison. Respondent then took Harrison to the emergency room at Lake City's Lake Shore Hospital. After a chart was prepared on Harrison, Alvarez departed, leaving Harrison there without his medications. When Alvarez first took Harrison in, he was told there would be an hour wait before Harrison could be seen. Alvarez asked if Harrison could sit there and wait, and the person on duty said, "Yes." Once that was arranged, Respondent left without Harrison. According to a report of the doctor on duty, Harrison was confused and incapable of giving a complaint or history. As a result, evaluation of him was difficult, and his well-being was compromised. Respondent subsequently made no effort to get Harrison's drugs to him by delivering them to Ms. Stuckv, nor did he inquire where Harrison was. Respondent's actions in dropping Mr. Harrison off at the Lake Shore Hospital unsupervised, and only calling to check on his status somewhat later, constitute an intentional abandonment which could have seriously affected Harrison's health, safety, and welfare. Somewhat later the same day, Respondent called Lake Shore Hospital to find out what Harrison's status was, but Harrison had already been placed in another adult care facility by Ms. Stucky when the hospital called her and told her of Harrison's situation. Respondent did not make any other calls. Ms. Stucky visited Harrison daily at this new facility and administered his insulin shot. He appeared to be doing well there and wanted to remain, but on August 17, 1982, he was readmitted to Macclenny, where he currently resides. Harrison is incapable of taking care of himself. He has a poor memory and is somewhat retarded and childlike, according to Stucky. He has no concept of time and could not administer his medicines to himself. He could not understand the need to take his medicine or remember to take it if he could. Since Mr. Harrison was dropped off at Lake Shore without either his medicines or a change of clothing, Stucky made several telephone calls to the Respondent to retrieve them. Mr. Alvarez was always out when she called, and Stucky talked with several different females who answered the phone and with whom she left messages requesting him to call her back. Alvarez did not return any of the calls, but he states he never received them. This is rossible since, he says, neither his mother nor his wife, two of the people at home who may have received the original calls from Stucky, speaks much English. Respondent provided Mr. Harrison with all the clothes he had except those he was wearing when he came from Macclenny. Upon the advice of individuals at Macclenny who he could not remember to identify, Respondent applied for Social Security benefits to support Harrison while he was at Respondent's facility. Because Harrison had no family, Respondent sought the counsel of the legal aid office in Lake City to see if he could be appointed Harrison's legal guardian and was told he could not. In late January or early February, 1983, Respondent received one Social Security check in the amount of $1,900 made out to Harrison and Mrs. Alvarez. This check was not cashed because Harrison was no longer with the Respondent, but was returned to the Social Security Office. Harrison's medicines that were in Respondent's possession when Harrison was taken to the hospital were discarded. Respondent worked with Harrison at Macclenny for about a year before taking him to his own facility. During that time to his knowledge, Harrison never had any seizures. Respondent gave him his medications at Macclenny and knew he needed drugs. When he took Harrison to his facility, he took Harrison's drugs as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Secretary of the Department of Health and Rehabilitative Services enter a final order revoking the Adult Congregate Living Facility License of Cirilo Alvarez, doing business as Briar's Haven Adult Care Center. RECOMMENDED this 1st day of April, 1983 in Tallahassee, Florida. ARNOLD H. POLLOCK 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 1st day of April, 1983. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 NW 13th Street, 4th Floor Gainesville, Florida 32601 Mr. Cirilo Alvarez Post Office Box 2392 Lake City, Florida 32055 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues in these cases are whether the natural persons named as Respondents are guilty of neglect of an aged person and, if so, whether Eileen's Guest Home is entitled to renewal of its license as an adult congregate living facility.
Findings Of Fact C. G. is the owner and operator of Eileen's Guest Home, which has been licensed as an adult congregate living facility for six to seven years. C. G. has a bachelors degree with significant coursework in public health. During the relevant time period, J. K. R. was a part-time employee of Eileen's Guest Home and was not a caregiver. She worked only about seven hours a week, performing housekeeping tasks such as mopping floors, hanging laundry, and putting away groceries. At the time, J. K. R. was 20 years old. Eileen's Guest Home is located on Haben Drive in a residential neighborhood in Orlando. A lake, which is surrounded by a steep embankment, is located in the neighborhood. Virginia Avenue, which is heavily travelled, crosses Haben Drive about 500 yards from the facility. A short distance from this intersection is the intersection of Virginia Avenue and U.S. Route 17-92, which is very busy. A lumber yard in the vicinity of this intersection is directly behind a row of bushes that are located about seven houses down from the facility. At all relevant times, Eileen's Guest Home housed eight residents. Four of these residents are mentally confused to a substantial degree and require monitoring. Two of these residents, both of whom have Alzheimer's disease, wandered from the facility without permission or supervisioin in February and April, 1989. C. M., who had been admitted to the facility in December, 1984, wandered from Eileen's Guest Home during the daytime on February 4, 1989. C. M. became disoriented and requested assistance from a neighbor who lives seven houses from the facility. Directly across from this house, which is only four houses down from the steep embankment leading to the lake, is the row of bushes screening the neighborhood from the lumberyard. With the neighbor's help, C. M. returned to the facility without incident a short time after her departure. At the time, C. M. was 87 years old. This is the only time that C.M. wandered from the facility. N. B., who was 77 years old at the time and suffers from Alzheimer's disease, was admitted to Eileen's Guest Home on April 19, 1989. The owner of the Alzheimer's daycare center that N. B. attended told C. G. that N. B. needed a place to live for about one week while her husband was being hospitalized. The daycare center owner told C. G. that N. B. had Alzheimer's disease, but did not mention any tendency to wander. C. G. agreed to take N.B. Sometime during the afternoon of April 20, N. B. left the house without permission or supervision. C. G. failed to notice N. B.'s absence until after 5:30 p.m. when C. G. went to find N. B. to prepare her for bed. At the time of N. B.'s departure, C. G., J. K. R., C.G.'s 18-year-old daughter, and M. C., a 31-year-old employee, were working at the facility. N. B. wandered through the neighborhood for at least one hour before she found assistance. At about 6:30 p.m., N. B. walked up to the home of the same neighbor who had assisted C. M. several weeks earlier. She approached the neighbor's home from the direction of the lake, which is not in the direction of Eileen's Guest Home. She requested help to find her way home. As the neighbor walked N. B. to another neighbor's house, C. G. and J. K. R. drove up in C. G.'s car. With the help of a young man who had been water skiing at the lake and lived in the back of the facility premises, C. G. brought N. B. back to the facility. Neither of the neighbors reported seeing any marks on N. B. However, she had suffered bruises under her left eye, upper right chest, and left hand and thumb, plus lacerations under the left eye and near the left elbow, on the evening of April 19 when facility employees tried to get her to go to bed. Following the incident on April 20, C. G. contacted the owner of the Alzheimer's daycare center and requested that she find another facility for N. B. Told that no other facilities were available, C. G. took no other action except to explain to N. B. that her husband was in the hospital and she should not leave the house. C. G.'s failure to take corrective action after N. B.`s first escape is exacerbated by the fact that the doors to the facility were not secure. The back door, which either had no alarm or had an alarm that was never operative, was normally left unlocked, apparently for the convenience of several persons living in the back. The front door had an alarm, but the alarm was broken for about three weeks in April, beginning a few days prior to the arrival of N. B. On Sunday, April 23, 1989, N. B. wandered from the facility a second time without supervision or permission. At the time, C. G. and her daughter were the only employees present. Never realizing that N. B. had escaped, C. G. received a telephone call from a neighbor informing her that he had N. B. at his home, which was not located on the same street as the facility. N. B. was returned to the facility without incident. The following Sunday, April 30, N. B. wandered from Eileen's Guest Home for a third time without supervision or permission. Again, only C. G. and her daughter were present to care for the residents. A neighbor summoned a police officer, who returned N. B. to the facility. N. B. stayed at the facility for about six more weeks. During that time, she did not wander off the premises without supervision.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order confirming the report of neglect of an aged person by C. G., expunging the confirmed report of neglect of an aged person by J. K. R. and expunging her name as a perpetrator from the registry, and revoking the license of Eileen's Guest Home. ENTERED this 16th day of April, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1990. APPENDIX Treatment Accorded Proposed Findings of Eileen's Guest Home, C.G., and J. K. R. 1. First two sentences adopted. Remainder rejected as irrelevant. 2-6. Adopted or adopted in substance. 7. Rejected as unnecessary. 8-10. Adopted. First sentence adopted. Second sentence rejected as against the greater weight of the evidence. Third sentence adopted except as to "despite" clause. Fourth sentence adopted. Fifth sentence rejected as speculation. Adopted. Adopted in substance. First sentence rejected as subordinate. Second sentence rejected as unsupported by the greater weight of the evidence, although there was no evidence of other incidents of wandering. First two sentences adopted. Remainder rejected as irrelevant. Rejected as against the greater weight of the evidence. 17-19. Rejected as irrelevant. Rejected as recitation of testimony and irrelevant. Rejected as recitation of testimony and against the greater weight of the evidence. Rejected as hearsay and against the greater weight of the evidence. 23-24. Adopted. 25. Rejected as unsupported by the greater weight of the evidence. 26-27. Rejected as against the greater weight of the evidence. 28. Adopted. COPIES FURNISHED: Jonathan S. Grout Dempsey & Goldsmith, P.A. P.O. Box 10651 Tallahassee, FL 32302 Linda L. Parkinson, Attorney Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 701 Orlando, FL 32801 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
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.)
Findings Of Fact Respondent is licensed to operate an adult congregate living facility known as Vereene's Love and Care Home, which is located at 1304 E. Gibbs Street, Melbourne, Florida. On February 27 and March 20, 1986, two representatives of Petitioner conducted an inspection of Respondent's facility. This inspection uncovered numerous violations, including 16 Class III violations. The facility was re-inspected on March 23 and 26 and April 21, 1987, and representatives of Petitioner determined that five Class III violations remained uncorrected. The uncorrected Class III violations were the failure of Respondent: to provide at least one staff member at the facility at all times with certification in an approved first aid course and documentation that all staff are free of communicable diseases; to maintain and make available physical examination records for one resident; to provide that one resident received medication in accordance with her prescription; to ensure that a refrigerator and chest freezer had accurate thermometers; and to maintain two freezers at a temperature below 0 degrees Fahrenheit. Representatives of Petitioner discussed the violations with Respondent at the time of the 1986 inspections. The parties agreed that Respondent would have varying deadlines, ranging from immediately to May 1, 1986, within which to correct the violations. Respondent proved at the hearing that the bottle of Diazide prescribed for a Mrs. Smith bore an incorrect dosage. Respondent and Mrs. Smith both testified that the physician had orally changed the dosage to one tablet every other day. Mrs. Smith produced a bottle containing this medication and bearing this dosage. The thermometers in the refrigerator and chest freezer were constantly falling off their shelves. The thermometers were always present in these two appliances.
The Issue Relating to Case No. 89-2757 Whether Respondent failed to assure that a sufficient number of staff members were certified in an approved First Aid course (a repeat violation), in violation of Section 400.419(3)(c), Florida Statutes and Rule 10A-5.019(5)(f), Florida Administrative Code. Whether Respondent failed to sanitize multi-use eating and drinking utensils in accordance with the food service standards (a repeat violation), in violation of Sections 400.419(3)(c) and 400.441(1)(b), Florida Statutes and Rule 10A-5.020(1)(n)6, Florida Administrative Code Relating to Case No. 89-3411 Whether Respondent failed to have in its files the inspection reports for the years 1984 and 1985, in violation of Sections 400.419(3)(c)4. and 400.435(1), Florida Statutes and Rule 10A-5.024(1)(d)(2a), Florida Administrative Code. Whether Respondent failed to assure compliance with physical plant standards, by not providing a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area for one (1) sleeping room window that serves as a second means of escape, in violation of Sections 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code. Whether Respondent failed to have a fire and evacuation route plan to assure compliance with fire safety standards, in violation of Section 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code.
Findings Of Fact Case No. 89-2757: At all times relevant the dates and alleged occurrences referred to in these proceedings, Respondent, Henderson's Retirement Home, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF). Respondent's facility was staffed without assurance of at least one staff member within the facility at all times who is certified in an approved first aid course. Tina Porterfield, the granddaughter of Dee Henderson, owner of Henderson's Retirement Home, although certified in an approved first aid course, was not a full time staff member. This violation occurred on September 30, 1987 and was not corrected on February 2, 1988. There was no competent evidence to show that Respondent's multi-use eating and drinking utensils were not being properly sanitized in accordance with food service standards. Case No. 89-3411: At all times relevant to the dates and alleged occurrences referred to in these proceedings, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF). HRS inspection reports relating to the Respondent's ACLF facility were not provided to Respondent for the years 1984 and 1985, and therefore could not be retained in its files at the time the facility was inspected in February, 1986 and February 18, 1987. HRS inspection of the premises on February 16, 17 and 18, 1987 revealed that a window that serves a second means of escape did not provide a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area. It was not proven where this window was located or if it was a sleeping room. Respondent was given until April 1, 1987 to correct the deficiency and the window was removed and replaced by a fire exit door when inspected on June 4, 1987. As of February 18, 1987, Respondent had a written fire and evacuation route plan prepared. A copy was posted during the time the HRS inspectors were completing their survey on February 18, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner impose a civil penalty in the total amount of $300 against Respondent pursuant to Section 400.419, Florida Statutes. DONE AND ENTERED this 15th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2757, 89-3411 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact: As to Case No. 89-2757: Adopted in substance. As to Case No. 89-3411: Paragraphs 1 and 3 adopted in substance. Paragraph 2 rejected as against the weight of the evidence. COPIES FURNISHED: Linda L. Parkinson, Esquire District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson Street Suite 701 Orlando, Florida 32801 Raymond A. McLeod, Esquire McLeod, McLeod and McLeod, P.A. Post Office Drawer 950 Apopka, Florida 32704 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the record compiled herein, the following relevant facts are found. By its Administrative Complaint filed on August 10, 1981, Petitioner's district administrator notified Respondent that the Department intended to impose a civil penalty in the amount of two hundred dollars ($200.00) based on the fact that Respondent denied to one of Petitioner's employees the right of entry into Simmons Hesperides Home For The Elderly. Simmons Hesperides Home For The Elderly is an adult congregate living facility (ACLF) licensed to operate as such pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. The facility is located at 4710 Hesperides Street in Tampa, Florida. The facility was licensed as an ACLF on December 2, 1980. Petitioner's program specialist, Alice Adler, made a periodic visit to Respondent's facility on June 23, 24 and 25, 1981, to perform a routine check of Respondent's operation to determine compliance with the applicable rules and regulations of the Department. During the June, 1981, visits, Ms. Adler advised Respondent that she did not have on hand a seven-day supply of non-perishable food to meet nutritional needs of residents and she was, therefore, in violation of Rule 10A-5.10(1)(k), Florida Administrative Code. Ms. Adler memorialized this deficiency by completing a deficiency report, a copy of which was provided Respondent. Approximately one week later, on July 1, 1981, Ms. Adler made another check of Respondent's facility to determine if Respondent was in compliance with the above cited rule requirement, at which time Respondent denied Ms. Adler the right of entry into the facility. Ms. Weinchowski was thereafter advised that her failure to permit her (Ms. Adler) to enter the facility could result in the imposition of a civil fine. Ms. Weinchowski, the owner/operator of Simmons Hesperides Home For The Elderly admitted that she denied Ms. Adler the right of entry into the facility on July 1, 1981. Ms. Weinchowski voiced her opinion that she was being harassed by Ms. Adler and, therefore, she did not permit her to enter the facility on July 1, 1981.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department's notice of intent to impose a civil penalty in the amount of two hundred dollars ($200.00) upon Lea Weinchowski d/b/a Simmons Hesperides Home For The Elderly, be upheld. RECOMMENDED this 24th day of November, 1981, in Tallahassee, Florida. COPIES FURNISHED: Janice Sortor, Esquire Assistant District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 Lea Weinchowski 4710 Hesperides Street Tampa, Florida 33614 JAMES E. BRADWELL, 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 24th day of November, 1981.
The Issue The issue in this case is whether the Agency for Health Care Administration should deny Petitioner's application for renewal of its standard assisted living facility license with a limited mental health component.
Findings Of Fact The Agency is responsible for licensing and regulating assisted living facilities in Florida pursuant to Part III, Chapter 400, Florida Statutes (2001). Pursuant to that responsibility, the Agency is authorized to conduct surveys and follow-up surveys, to make visits and inspections of assisted living facilities, and to investigate complaints. Oakland Manor is an assisted living facility located at 2812 North Nebraska Avenue, in Tampa, Florida, licensed and regulated pursuant to Part III, Chapter 400, Florida Statutes (2001), and Rule Chapter 58A-5, Florida Administrative Code. The facility's license has a limited mental health component. Rory and Lisa McCarthy have owned and operated Oakland Manor since about December 1999. Mrs. McCarthy is the administrator of the facility. Between the dates of December 14, 2000 and September 18, 2001, the Agency conducted three appraisal visits, a moratorium monitoring visit, a complaint investigation, and a biennial license renewal survey of the facility. The Agency noted the results of these inspections on a form referred to as Agency Form 3020-0001 ("Form 3020"). The Form 3020 is the document used to charge assisted living facilities with deficiencies that violate applicable law and rules. The Form 3020 identifies each alleged deficiency by reference to a tag number. Each tag of the Form 3020 includes a narrative description of the allegations against the facility and cites the relevant rule or law violated by the alleged deficiency. In order to protect the privacy of the residents, the Form 3020 and this recommended order refer to the subject resident by a number rather than by a name. There are 24 tags at issue in the proceeding, some having been cited as repeat or uncorrected deficiencies. An uncorrected deficiency is one that was previously cited and has not been corrected by the time designated or by the time of the Agency's follow-up visit. A repeat deficiency is one that the facility has been cited for and that has been corrected, but after the correction, the deficiency occurs again. Section 400.419, Florida Statutes, requires that the Agency assign a class rating to the deficiencies alleged in its Form 3020. The classification rating assigned to a deficiency is based on the nature of the violation and the gravity of its probable effect on facility residents. On December 14, 2000, the Agency conducted an appraisal visit of Oakland Manor. As a result of this visit, the Agency cited the facility with four Class III deficiencies, including a Tag A519 deficiency for failure to maintain minimum staffing to meet the residents’ needs, a Tag A1001 for failure to provide a safe environment, Tag A1024 for failure to provide beds for two residents, and Tag A1033 for failure to provide each bathroom with a door in good working order to ensure privacy for residents. The Agency conducted a second appraisal visit of Oakland Manor on March 12, 2001, and cited the facility for seven deficiencies, including three uncorrected deficiencies from the December 14, 2000, visit. According to the Form 3020 for the March 12, 2001, appraisal visit, the uncorrected deficiencies were cited as Tag A519, for failure to provide minimum staffing; Tag A1001, failure to provide a safe environment; and Tag A1024, for failure to provide clean, comfortable mattresses. In addition to the alleged uncorrected deficiencies, the Agency cited the facility for four new deficiencies under Tag A210, Tag A212, Tag A523, and Tag A1004. Tags A519, A523, and A1001 were rated as Class II deficiencies. The other tags cited were rated as Class III deficiencies. Because the Agency found new violations of Tags A519, A1001, and A1024, and deficiencies under those same tag numbers were identified in December 2000, the Agency deemed those violations or deficiencies to be uncorrected deficiencies. On March 13, 2001, the day after the second appraisal visit, the Agency entered an Order of Immediate Moratorium ("Order"). The Order was based on the alleged violations cited from the March 2001 appraisal visit and stated that the conditions at the facility presented a significant threat to the health, safety or welfare of the residents. Under the Order, Oakland Manor was prohibited from admitting any residents. On June 13, 2001, the Agency conducted a complaint investigation based on a complaint that the Agency had received. The Form 3020 summarizing the Agency's findings during the June 13, 2001, investigation did not cite Oakland Manor for any continuing violations, but alleged that there was a violation of Tag A1114, relating to staff records standards. The A1114 deficiency was assigned a Class II violation. The Agency conducted a biennial license and limited mental health renewal survey on June 28, 2001. This survey is required for continued licensure. As a result of the biennial survey, the Agency cited Oakland Manor with the following ten deficiencies, none of which had been previously cited: Tags L200, L201, L202, L203, L400, A525, A634, A1005, A1101, and A1103. All of these tags were assigned Class III ratings. On September 18, 2001, the Agency conducted an appraisal/monitoring visit. As a result of this visit, the Agency cited Oakland Manor with two violations, Tag A519, related to staffing standards, and Tag A1004, related to physical plant standards, both of which were assigned Class III ratings. Because Oakland Manor was cited for deficiencies under Tag 519 during the March 12, 2001, visit, the Agency noted that the deficiency of Tag A519 was a repeat violation. The Form 3020 for each survey or visit indicated when each alleged violation should be corrected. In some cases, a specific date was given. In other instances, the correction was to be implemented "immediately." DECEMBER 14, 2000, APPRAISAL TAG A519 Tag A519 requires a facility to maintain the minimum staffing hours set forth in Rule 58A-5.019(4), Florida Administrative Code. Because Oakland Manor had a resident census of 26 in November 2000 and through the first two weeks of December 2000, the facility was required to have minimum staff hours of 294 per week. Based on a review of the facility's staffing schedule for the time in question, the Agency surveyor properly concluded that the facility did not maintain the required minimum staff hours of 294 in November 2000 and the first two weeks of December 2000. As a result of this finding, the Agency properly cited Oakland Manor with a Tag A519, Class III deficiency. DECEMBER 14, 2000, APPRAISAL: TAG A1001 The second violation for which Oakland Manor was cited was a Tag A1001 deficiency, which requires that assisted living facilities "be located, designed, equipped, and maintained to promote a residential, non-medical environment, and provide for the safe care and supervision of all residents." See Rule 58A- 5.023(1)(a), Florida Administrative Code. The violation was rated as a Class III deficiency. The allegation that Oakland Manor failed to meet the requirements of Tag A1001 is based on the following observations noted on the Form 3020: there were electrical wires and light fixtures hanging loose from the ceiling in the hallway on the first floor; the residents' room walls were dirty, the rooms had a foul odor and the smell of urine; the floors of the facility were dirty; residents were observed smoking in their beds; the toilet tank lid was missing; and discharge water from the washing machine in the breezeway was running over the walkway in the patio area. At the time of the survey, one resident's room had dirty walls and also had a foul odor. The floors of the facility were dirty and had food particles on them, and the facility had an "unpleasant odor." Also, two residents were observed smoking in their bedrooms, despite the facility's no smoking policy. Contrary to the observation noted on the Form 3020, there were no light fixtures hanging loose from the ceiling, nor had that situation ever existed. At hearing, there was no evidence presented by the Agency that there were light fixtures hanging loosely from the ceiling. The electrical wires, referred to in the Form 3020, were slightly visible and coming from a 9-foot ceiling. However, there were wire nuts on the wires and, thus, the wires were not a danger to the residents. There was water coming from the washing machine as noted by the Agency surveyor. Mr. McCarthy does not deny that allegation, but the water coming from the washing machine was "feed" water going into the machine and not "discharge" water as noted in the Form 3020. This problem was resolved the following day when Mr. McCarthy purchased and had a new washing machine installed. The surveyor observed one toilet that did not have a toilet tank lid. The owners do not dispute this, but the lid was not "missing" as noted on the Form 3020, but had likely been removed by one of the residents. When a resident removes the toilet tank lid, staff members routinely replace the lid. The surveyor was unaware of any regulation that requires the facility to secure the lids to prevent the residents from removing them. DECEMBER 14, 2000, APPRAISAL: TAG A1024 The third alleged violation for which the facility was cited was Tag A1024, which refers to the physical plant standard set forth in Rule 58A-5.023(4)(e), Florida Administrative Code. That standard requires that each resident bedroom or sleeping area, where furnishings are supplied by the facility, shall at a minimum, be furnished with, among other things, a clean comfortable bed with a mattress. It is alleged that this standard was not met as evidenced by the observation that the mattress in Room No. 10 was torn, and the filler appeared to be coming out of the mattress. The undisputed testimony was that the torn mattress was not being used by any resident of the facility, but was a mattress that was not being used. The Notice of Intent to Deny mischaracterizes the surveyor's findings under Tag A1024 as "failure to provide beds for two residents." This allegation was not addressed or proven by the Agency. DECEMBER 14, 2000, APPRAISAL: TAG A1033 The fourth alleged violation, cited under Tag A1033, relates to the physical plant standard set forth in Rule 58A- 5.023(5), Florida Administrative Code. That standard requires that each bathroom have a door in working order to assure privacy and that the entry door to the bathrooms with a single toilet is required to have a lock which is operable from the inside by the resident, with no key needed. The Agency alleged that this standard was not met in that the bathroom door on the first floor was not operable because the door was missing the striker plate that keeps the door tightly closed into the frame. The Agency noted that as a result of this alleged defect, residents using that bathroom did not have privacy. Based on Mr. McCarthy's testimony, there was a door leading into the bathroom, which had a working lock. In addition, the door with the missing striker plate had a hook and eye that allowed the door to be secured from the inside. MARCH 12, 2001, APPRAISAL TAG A519 Tag A519 requires the facility to meet the minimum staffing required by Rule 58A-5.019(4), Florida Administrative Code. Based on the resident census of 25 for March 4-12, 2001, and the surveyor's review of the staff work schedule for that week, Oakland Manor was cited for a Tag A519 deficiency. According to the facility's staff work schedule, there were 208 total staff hours for that week and not the required minimum staffing hours. The Form 3020 stated that the "[l]ack of adequate staffing has resulted in a malfunctioning sewage system which poses an immediate risk to the residents, staff, and public." In making this allegation, the Agency apparently assumed that the residents caused the sewage system problems and that if there had there been adequate staffing, these problems would not have occurred. The Agency then alleged that the malfunctioning sewage system posed an immediate risk to the residents, staff, and public. However, these assumptions and allegations are not supported by any evidence. There is no evidence that the sewage system problems were caused by the residents and/or lack of staffing. Moreover, there is nothing in this record which supports the claim that the malfunctioning sewage system posed an "immediate risk" to the residents, staff, or public. Clearly, there was a Tag A519 deficiency in that the facility failed to maintain the weekly minimum staff hours required. Also, because the facility had been cited for a Tag A519 deficiency during the December 14, 2000, appraisal, the Agency properly found that the Tag A519 deficiency, cited during the March 12, 2001, appraisal was an uncorrected deficiency. However, in this instance, the violation did not "directly threaten the physical or emotional health, safety, or security of the facility residents." Accordingly, the violation is not a Class II deficiency, as alleged by the Agency, but is a Class III deficiency. MARCH 12, 2001 APPRAISAL: TAG A523 As stated on the Form 3020, Tag A523 requires that, notwithstanding the minimum staffing ratio, all facilities have enough qualified staff to provide resident supervision, and provide or arrange for resident services in accordance with resident scheduled and unscheduled service needs, resident contracts, and resident care standards. See Rule 58A- 5.019(4)(b), Florida Administrative Code. The Agency alleged that Oakland Manor failed to meet this standard. The determination that Oakland Manor failed to meet the standard required by Tag A523 was based on the surveyor's observation and interview with the facility administrator. On the day of the survey, from 9:30 a.m. to approximately 11:00 a.m., the surveyor noticed that there was a strong odor of sewage coming from the basement area and standing water on the basement floor. The surveyor learned from the administrator that the matter came to her attention that morning and that a plumber had been called and had corrected a similar problem a week earlier. Mr. McCarthy explained that the lift station malfunction and the overflow of sewage into the basement had occurred the day of the Agency inspection. After a plumber came to the facility to repair the lift station and was unable to do so, an electric company was called and came out and immediately repaired the lift station. The Form 3020 notes that when the lift station backed up the week before, the plumber found t-shirts, garbage bags, bandannas, and a stick of deodorant clogging up the lift station. From this alleged statement, the surveyor erroneously concluded that some of the residents had thrown these and possibly other items into the lift station. In view of this assumption, the surveyor alleged on the Form 3020 that: The lift station back up is occurring due to a lack of supervision of qualified staff to provide resident supervision and allowing the residents to freely access the lift station in the yard and put items in it. The size and accessibility of the lift station also poses a threat to residents due to the possibility of a fall while throwing in inappropriate items. The lift station was in the yard of the facility, but the residents do not have free access to the lift station, except the top external lid of the lift station. The residents can not remove the lid covering the lift station because the lid is made of steel and weighs over 200 pounds. Accordingly, the residents can not throw items in the lift station and, thus, there is no threat to the residents "due to the possibility of a fall while throwing" items into the lift station, as alleged by the Agency. The Agency deemed the Tag A523 violation as a Class II deficiency and required that the facility correct the deficiency immediately. The Agency failed to establish this allegation. MARCH 12, 2001, APPRAISAL: TAG A1001 The standards of Tag A1001 are stated in paragraph 20. Based on the surveyor's observations, Oakland Manor was again cited for a Tag A1001 deficiency. Tag A1001 was deemed by the Agency to be an uncorrected deficiency and designated a Class II violation. In the Form 3020, the Agency listed the following 12 alleged facts as the basis for the cited deficiency: Two large ladders were lying on the floor in the hallway, partially blocking access through the hallway. The bathtub and shower in the first floor shower room were badly stained and mildewed. In Room No. 1, the toilet was not working and there was an accumulation of feces in the toilet bowl. In Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. The wall and floors throughout the facility were dirty. In Room No. 8, there was an electric space heater in front of full length curtains. In Room No. 10, there were cigarette butts on the floor and the resident in the room was observed smoking, although smoking is not allowed in the facility. In the second residential building, the first bathroom had a dirty floor and the vinyl was very worn and there was no lid on the "toilet back." In the second residential building television room, there was a resident smoking even though there is a no smoking sign posted. There was a strong sewer odor emanating from the facility basement and the basement had standing water. The staircase to the second floor of the main building was covered with dirt and grime. The overhead light in the second floor hallway was not working and the staircase was very dark. The ladders, referred to in the Form 3020, were not lying on the floor but were leaning against a recessed part of the wall in the hallway. They were not blocking the passageway and, even with the ladders in the hallway, there was enough room for a 215-pound man to walk through the hall into the adjacent room. The reason the ladders were in the hall was that Mr. McCarthy was painting the facility. At the end of each day, when Mr. McCarthy was finished painting, he stored the ladders in an office in back of the kitchen or in a shed in the back of the facility. The surveyor reported that the bathtub and shower in the first floor shower room were badly stained and mildewed. Mrs. McCarthy testified that the shower stall is made of heavy marble and is original to the 100-year-old house and that many of the stains can not be scrubbed off. The substance the surveyor described as mildew was shampoo. The toilet in Resident Room No. 1 was described in the Form 3020 as having an accumulation of feces and not working. The toilet was stopped up, but was working and was put back into flushing order that same day, immediately upon the problem being called to her attention. The residents in that room placed female products in the toilet and caused it to stop up. However, the toilet was functioning in all respects when it was not stopped up. In Resident Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. This was not disputed. Every shift, staff is suppose to sweep, mop, and make sure that the room is cleaned out, but sometimes the residents put their laundry on the bed. The walls and floors throughout the facility were dirty as reported in the Form 3020. In an effort to keep the walls clean, they are painted every three or four months. The Agency surveyor observed a space heater in Room No. 8, which she characterized as a fire hazard. However, the heater was not plugged in and was not in use at that time. When the heater is in use, it is in the middle of the room and not near the curtain. In Room No. 10, the surveyor observed cigarette butts on the floor and the resident in the room was observed smoking, even though the facility had a no smoking policy and all residents were given copies of that policy, upon admission. In Oakland Manor’s second residential building, the surveyor observed that the floor was dirty and the vinyl was torn, and there was no lid on the toilet back. Mr. McCarthy confirmed that the vinyl was worn and did not dispute that the floor was dirty. At the time of the Agency inspection, the worn dirty vinyl was in the process of being replaced. With regard to the toilet backs, the residents remove the toilet tank lids, but they are always put back on. The Agency surveyor observed a resident smoking in the television room, even though there was a “No Smoking” sign posted in the room. At Oakland Manor, smoking in violation of the house rules is a continuing problem that the administrator and staff make efforts to correct. The Agency surveyor observed that there was standing water in the basement and a strong sewer odor coming from the basement. Other facts related to this observation are discussed in paragraphs 35 and 36. Mrs. McCarthy does not dispute this allegation, but the problem was promptly correctly. Mr. Carthy corrected the problem within 48 hours; he went into the basement and “squeegeed” all the standing water and otherwise treated the floor to dry it and deodorize it. The surveyor determined that the overhead light in the second floor hallway of the main house was not working. She reached this conclusion after she first observed the dark hallway and then tried to turn on the light and was unable to do so. There is no indication that the surveyor asked facility staff to turn on the light or inquired as to how the switch worked. The light operates by a three-way switch, and although there are two switches, only one of them turns on the light. Also, there are two lights in the stairwell so that if one light is burned out, the other one still works, but it does not appear that the inspector knew how to operate the three-way switch. No testimony was presented by the Agency regarding the allegation concerning the staircase to the second floor of the main house. Based on the Agency’s findings in the paragraph 40-d, e, and j, above, the facility was properly cited for the Tag A1001 deficiency. This was an uncorrected deficiency. MARCH 12, 2001, APPRAISAL: TAG A1004 Tag A1004 requires that all windows, doors, plumbing, and appliances in assisted living facilities be functional and in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. According to the Form 3020, Oakland Manor failed to meet this standard as evidenced by windows in the facility that were not functional and in good working order and failing to promptly repair broken glass, which "may result in injury to residents or staff." The surveyor observed the following: a large window pane in the front door was broken, the lower window pane in the dining room window was covered over with plywood, the first floor rear bathroom window was hanging off the hinge and the screen was missing; and the window pane of the outside door leading to the ramp was broken and covered with a garbage bag. The owners do not dispute that the pane in the front door was broken, but testified that the material was not glass, but Plexiglas. The door had been broken by one of the residents the day of the survey. Mr. McCarthy replaced the Plexiglas pane the same day and, four or five days later, replaced the entire front door with a solid door. As to the allegation that the lower half of the dining room window was covered with plywood, that there was not a glass pane in the lower part of the window. Rather, the plywood was placed there instead of the glass and was put in with trim molding and sealed with caulking. It appears that the window was designed that way to serve as a "fixed" window. The Agency acknowledged that window had been like that before the McCarthys purchased the facility. Moreover, the Agency had not previously indicated that this was a violation of any regulation. Although the Agency offered no suggestions to address its concern with the “fixed” window, Mr. McCarthy replaced the plywood with Plexiglas in an attempt to comply with the Agency requirements. The surveyor's observation regarding the first floor rear bathroom window was reversed. There was a screen on hinges that opened and closed and the top hinge of the screen was pulled out and hanging over a bit. However, the screen was there and the window was functional. Mrs. McCarthy does not dispute that the outside door had a broken glass pane that was covered with a garbage bag. The glass pane had been broken out earlier that day and the entire door was replaced within a day or so of the Agency's appraisal visit. The observations noted in paragraph 61 constitutes a violation of Tag A1004. MARCH 12, 2001, APPRAISAL: TAG A1024 The Tag A1024 requires that each resident room in an assisted living facility be furnished with, among other things, a clean comfortable mattress. See Rule 58A-5.023(4)(e)1., Florida Administrative Code. According to the Form 3020, the Agency alleged that Oakland Manor failed to comply with this standard in that "the facility did not provide appropriate beds for two residents." No mention is made in the Form 3020 of which residents did not have appropriate beds. The alleged Tag A1024 deficiency was based on the two reported observations of the surveyor. First, the Form 3020 notes that in Room No. 10, the surveyor observed "a medical crutch being used as a mattress support on one bed." Second, the surveyor noted her observation that in Room No. 4, there was "a ripped mattress with the filling coming out of the rips." The owners testified that the crutch was not being used to support the mattress and that bed was not being used by any of the residents. Mr. McCarthy did not know why the crutch was under the mattress, but it was not there for support because of the construction of the bed. As to the second observation, the owners do not dispute that the mattress also in Room No. 4 was ripped. However, the bed with the torn mattress was not being used by anyone and has been replaced. Finally, there were appropriate beds for all the residents because at the time of this survey, there were 26 residents and 32 beds. This testimony was not disputed by the Agency. Tag A1024 was deemed by the Agency to be an uncorrected deficiency and was designated as a Class III violation. The Agency gave the facility until March 15, 2001, to correct the deficiency. MARCH 12, 2001, APPRAISAL: TAG A210 Four additional new violations were cited as a result of the Agency's March 12, 2001, appraisal visit. These violations or deficiencies were assigned Tag A210, Tag A212, Tag A523, and Tag A1004. Tag A210 requires compliance with the standards set forth in Rule 58A-5.024, Florida Administrative Code. That rule requires that assisted living facilities maintain the records prescribed therein "in a form, place and system ordinarily employed in good business practice and accessible to the department and [A]gency staff." Rule 58A-5.024(1)(m), Florida Administrative Code, requires that the facility maintain all fire safety inspection reports issued by the local authority having jurisdiction or the State Fire Marshal within the past 2 years. In an interview, which occurred during this visit, the facility administrator advised the Agency surveyor that the fire inspection reports were not on the premises, but at the administrator's home. Based on this statement by the administrator, the Agency properly concluded that this standard was violated because the fire inspection records were maintained at the owner/administrator's home, and were not in a place accessible to Agency staff as required by the applicable rule. MARCH 12, 2001, APPRAISAL: TAG A212 The Tag A212 relates to facility records standards. According to the Form 3020, Oakland Manor failed to meet this standard in that it violated Rules 58A-5.020(3) and 58A- 5.024(1)(n), Florida Administrative Code. The former rule requires that "copies of inspection reports [relating to food hygiene] issued by the county health department for the last two years . . . be on file in the facility." The latter rule requires that all sanitation inspection reports issued by the county health department within the past two years be maintained in a form, place, and system ordinarily employed in good business practice and accessible to department or agency staff. The Form 3020 indicates and it is undisputed that the most recent copy of the sanitation inspection report was not on the premises, but at the administrator's home. MARCH 13, 2001, ORDER OF IMMEDIATE MORATORIUM On March 13, 2001, the day following the Agency’s March 12, 2001, appraisal visit to Oakland Manor, the Agency imposed a Moratorium on Admissions to the facility, which has remained in effect. JUNE 12, 2001, MORATORIUM MONITORING VISIT TAG A528 In the Notice of Denial, the Agency alleged that a Moratorium monitoring visit was made to Oakland Manor on June 12, 2001, during which the facility was cited for violating Tag A528. The Agency failed to establish this violation. JUNE 13, 2001, COMPLAINT INVESTIGATION TAG A1114 On June 13, 2001, the Agency conducted a complaint investigation of Oakland Manor. As a result of the investigation, the Agency alleged that the facility violated Tag A1114 by failing to include in an employee’s file documentation of compliance with Level 1 screening. The standards under Tag A1114 are set forth in Section 400.4275(2), Florida Statutes, and Rules 58A-5.019(3) and 58A-5.024(2)(a)3., Florida Administrative Code. Pursuant Rule 58A-5.019(3), Florida Administrative Code, a Level 1 screening is required for all employees hired after October 1, 1998, to provide personal services to residents. Also, personnel records for each staff member should include documentation of compliance with Level 1 background screening for all staff. See Subsection 400.4275(2), Florida Statutes, and Rule 58A-5.024(2)(a)3., Florida Administrative Code. Mr. and Mrs. McCarthy did not dispute this allegation. According to the Form 3020, the employee in question had been hired by the facility on or about May 15, 2001. Mrs. McCarthy told the surveyor that she had applied for the background screening about two weeks prior to the June 13, 2001, complaint investigation, but it had not yet been received. Later that day, the administrator provided the surveyor with a copy of an arrest report from the Tampa Police Department. The arrest report did not satisfy the standards required under Tag A1114. The deficiency constituted a failure to comply with the requirements of Tag A1114, and was properly designated a Class II deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG L200 Tag L200 requires assisted living facilities with a limited mental health license, such as Oakland Manor, to have a copy of each mental health resident’s community living support plan. See Subsection 400.4075(3)(a), Florida Statutes. In addition, Tag L200 requires that the mental health case manager and the mental health resident, in conjunction with the facility administrator, prepare the community living support plan within 30 days of admission to the facility or within 30 days after receiving the appropriate placement assessment. See Subsection 400.402(8), Florida Statutes, and Rule 58A.5.029(2)(c)3.a., Florida Administrative Code. According to the Form 3020, the surveyor reviewed the file of Resident 1, a limited mental health resident who was admitted to the facility on November 23, 1993, and did not find the resident’s community living support plan. The resident’s record did have the annual community living support plan, but the surveyors simply missed or inadvertently overlooked the document. There was a community living support plan in Resident 1’s file that was signed by the resident, the resident’s counselor, and the former facility administrator, and dated February 17, 1999. Attached to the community living support plan were progress notes, with the last entry dated October 14, 1999. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS L201, L202, L203, AND L400 Oakland Manor was cited for violating standards under Tags L201, L202, L203, and L400, all of which relate to community living support plans. Tag L201 requires that the community living support plan include the components enumerated in Rule 58A- 5.029(2)(c)3.a.(i)-(vi) and (viii), Florida Administrative Code. Tag L202 requires the assisted living facility to make the community living support plan available for inspection by the resident, the resident’s legal guardian, the resident’s health care surrogate, or other individuals who have a lawful reason to review the plan. See Subsection 400.4075(3)(c), Florida Statutes. Tag L203 requires that the community living support plan to be updated annually in accordance with See Rule 58A- 5.029(2)(c)3.a.(vii), Florida Administrative Code. Finally, Tag L400 requires the facility to assist the mental health resident in carrying out the activities identified in the individual’s community living support plan. See Subsection 400.4075(3)(d), Florida Statutes. The alleged deficiencies cited under Tags L201, L202, L203, and L400 were all based on the surveyor’s finding that the file of Resident 1 did not contain a community living support plan. In light of the finding in paragraph 80, that the annual community support plan was in the resident’s file, the Agency did not establish the deficiencies listed under Tags L201, L202, and L400. Oakland Manor failed to comply with the standards of Tag L203, in that the community living support plan had not been updated annually as required by the foregoing rule. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A525 Tag A525 was assigned to Oakland Manor based on the Agency's determination that for two facility employees, scheduled to work alone on the 11:00 p.m. to 7:00 a.m. shift, there was no documentation that they had received first aid training. This alleged deficiency constitutes a failure to comply with the staffing standards in Rule 58A-5.019(4)(a)4., Florida Administrative Code, which requires that at least one member who is trained in first aid and CPR be in the facility at all times. Oakland Manor was properly cited for a violation of Tag A525 which was designated a Class III deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A634 The Agency assigned a Tag A634 deficiency to Oakland Manor based on its determination that Oakland Manor failed to meet the medication standards set forth in Section 400.4256(1), Florida Statutes. That provision requires the facility to advise the resident or the resident's guardian or surrogate that the resident may receive assistance with self-administration of medication from an unlicensed person and that such assistance will not be overseen by a licensed nurse. As support for this violation, the Form 3020 noted that based on a review of three residents' files, there was no documentation that the facility had informed the residents as required by Section 400.4256, Florida Statutes. The facility does inform residents appropriately, based on documents included in the admissions package. However, the surveyors did not look anywhere except the residents’ files for that documentation. The residents also signed a letter giving their informed consent to comply with the Agency regulations, and a copy of that letter was faxed to the Agency soon after the citation. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A1005 As part of this survey, the Agency assigned a Tag A1005 deficiency, alleging that the facility failed to meet the physical plant standard required by Rule 58A-5.023, Florida Administrative Code. That rule requires that all furniture and furnishings be clean, functional, free of odors, and in good repair. This deficiency was based on a surveyor's observation of the main bathroom on the first floor of the main building. During a tour of the facility, the Agency surveyor observed human excrement on the bathroom floor, on the outside of the toilet bowl, and on the toilet seat. The surveyor also observed that an adult brief, filled with human excrement, had been thrown against the wall. After this was brought to the administrator's attention, the bathroom was cleaned immediately. However, several hours later, when the surveyor returned to the area, human excrement again had been smeared on the toilet seat. A few minutes prior to the surveyor returning to the bathroom, a resident exited the bathroom. Therefore, it is very likely that the resident who was in the bathroom soiled the toilet seat after it had been cleaned. The facility staff has a regular cleaning schedule and, pursuant to that schedule, the bathrooms are checked and cleaned several times, as necessary. However, the residents are entitled to their privacy in the bathrooms and staff does not check the bathroom every time a resident uses it. Tag A1005 was designated a Class III deficiency, and the facility was required to and did correct this deficiency immediately after it was discovered. In light of the totality of the circumstances, the Agency did not properly cite the facility for a violation of this tag. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS A1101 AND A1103 The Agency cited Oakland Manor for a Tag A1101 deficiency for failure to adhere to the staff record standards in Rule 58A-5.024(2)(a), Florida Administrative Code. That rule requires that the personnel records of each facility staff member contain the verification of freedom from communicable disease, including tuberculosis. The Tag A1101 deficiency was based on a review of eight personnel files, which revealed three files that contained no documentation that the respective employees were free from communicable disease. The three employees, for whom there was no documentation, had been hired two or three months prior to the June 28, 2001, re-licensure survey, on March 20, April 4, and April 20, 2001. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG A1103 The Agency cited Oakland Manor for a deficiency under Standards of Tag A1103. That tag requires that, within 30 days of being hired, a facility staff member must "submit a statement from a health care provider, based on an examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis." See Rule 58A-5.019(2)(a), Florida Administrative Code. The rule further provides that such "freedom from tuberculosis must be documented on an annual basis." The Tag A1103 deficiency was assigned based on the Agency's review of the personnel files of eight of the facility’s staff members. The Form 3020 states that the files of four employees, W.W., L.M., J.V., and M.J., hired July 5, 1992, November 1999, April 23, 2001, and March 20, 2001, respectively, did not contain documentation of freedom from tuberculosis, obtained from a test in the last 365 days. The Agency's finding that the facility failed to comply with the staffing standards in Rule 58A-5.019(2)(a), Florida Administrative Code, is well-founded as it relates to the staff members employed on July 5, 1992, and November 1999. However, the requirement that freedom from tuberculosis must be documented annually can not be the basis for the Tag A1103 deficiency, as it relates to the two employees hired on March 20, 2001, and on April 23, 2001, only two or three months from the date of the survey. SEPTEMBER 18, 2001, APPRAISAL VISIT TAG A519 On September 18, 2001, the Agency conducted an appraisal visit of the facility and cited it for a Tag A519 deficiency, which relates to failure to maintain minimum staffing standards required in Rule 58A-5.019, Florida Administrative Code. The cited deficiency was based on the fact that the facility census was sixteen. In accordance with the foregoing rule, on the day of the September visit, the resident facility was required to have a weekly minimum of 253 staffing hours, but the facility only had 208 hours. Based on its review of records proved by the facility, the Agency properly concluded that the facility did not meet the minimum staffing standards for the first two weeks of September 2001. The Agency designated the Tag A519 as a Class III deficiency and properly noted that this was a "repeat deficiency." SEPTEMBER 18, 2001, APPRAISAL TAG A1004 Tag A1004 requires that the windows, doors, plumbing, and appliances of the facility be in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. The Agency found that Oakland Manor was in violation of this standard. According to the surveyor, the basis for this alleged violation was that "certain light fixtures throughout the facility were being maintained in an unsafe manner" and that "numerous bare (uncovered by globe or shade) light bulbs were observed, specifically in the dining area and in the main building bathrooms." The Agency concluded that the "unprotected bulbs are in danger of being broken, putting the residents at risk." Although the Agency cited the facility for the exposed light bulbs, the surveyor testified that there is not a specific tag that addresses the hazards of a light bulb, but the designated Tag A1004 “was the best available citation, quite frankly.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order revising the survey reports to delete and/or modify the deficiencies described in the Forms 3020 that are not supported by the record and granting Oakland Manor's application for renewal of its assisted living facility license. DONE AND ENTERED this 4th day of October, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 4th day of October, 2002. COPIES FURNISHED: A. S. Weekley, Jr., M.D., Esquire Holland and Knight LLP 400 North Ashley Drive Tampa, Florida 33602 Eileen O'Hara Garcia, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701 Lisa McCarthy, Administrator Oakland Manor ALF 2812 North Nebraska Avenue Tampa, Florida 33602 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In August of 1987, the petitioner submitted an initial application for licensure as an adult congregate living facility. With advance notice to the petitioner, a survey team from the Department of Health and Rehabilitative Services' Adult Congregate Living Facility Program went to the petitioner's facility on September 28, 1987, to conduct a survey to ensure that the facility was in compliance with the minimum standards for licensure. The then- administrator, Kevin Nance, and the owner of the facility, Minnie Nance, were present while the survey was being conducted. The survey conducted on September 28, 1987, resulted in a finding of some 44 Class III deficiencies. A Class III deficiency or violation is defined as a condition or occurrence related to the operation and maintenance of a facility or to the personal care of residents which the Department determines indirectly or potentially threatens the physical or emotional health, safety or security of facility residents. The deficiencies found related to administration, management and staffing standards, admission criteria and resident standards, food service standards, resident and personnel records and fire safety standards. Prior to leaving the facility on September 28, 1987, the HRS survey team conducted an exit interview with Kevin and Minnie Nance, discussed the deficiencies found during the survey, and mutually arrived at dates upon which the deficiencies were to be corrected. It was agreed that the deficiencies should and would be corrected on or before various dates, ranging from October 1, 1987, to November 28, 1987, depending upon the nature of the particular deficiency. The Nances were requested to write down the deficiencies found, as well as the times for correction, and they were informed that a written report of the survey would be received in several weeks. They were informed that additional time could be granted to correct specific deficiencies if a written request were received by HRS prior to the original date set for the correction. They were further informed that an unannounced revisit would be conducted after the dates of correction to determine if the deficiencies had been corrected. In the early part of November, 1987, the written report of the survey was sent to the petitioner. This report listed each of the deficiencies found, as well as the required date of correction. A Statement of Acknowledgement of Receipt, dated November 11, 1987, and signed by Charles W. Nance as the Administrator, was returned to HRS on November 13, 1987. The HRS survey team revisited the facility on January 7, 1988, and found that some thirty deficiencies previously cited on September 28, 1987, had not been corrected and that three or four more had been only partially corrected. At that time, petitioner was informed that its application for initial licensure as an adult congregate living facility would be denied. Petitioner does not dispute the existence of the deficiencies initially found on September 28, 1987, nor did petitioner offer testimony to rebut the respondent's testimony regarding the uncorrected deficiencies. Instead, petitioner attempted to explain the still uncorrected deficiencies with testimony that the Administrator of the facility on September 28, 1987, was no longer the Administrator in January of 1988, that Minnie Nance and Charles Nance did not become aware of the specific nature of the deficiencies until late November of 1987, and that the holiday season prevented them from securing the necessary labor and assistance to correct the physical deficiencies. Petitioner also presented testimony that on the date of the unannounced revisit, January 7, 1988, Charles Nance was not present and that all the administrative paperwork was in his locked apartment and thus unavailable for review by the survey team. In light of the facts that at least Minnie Nance was present during the initial September survey and the exit interview, that Charles Nance signed as the Administrator on November 11, 1987, and acknowledged that he received the written report of the survey from HRS, and that petitioner never requested an extension of the time required for correction of the deficiencies, these explanations by the petitioner are neither credible nor sufficient. Also, no documentation was offered at the hearing concerning the existence of records contained in the locked apartment of Charles Nance on January 7, 1988.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure as an adult congregate living facility be DENIED, without prejudice to petitioner to submit a new application at such time as compliance with the relevant standards and criteria for licensure can be established. Respectfully submitted and entered this 18th day of November, 1988, 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 18th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1677 The proposed findings of fact submitted by the parties have been carefully considered and are accepted, incorporated and/or summarized in this Recommended Order, with the following exceptions: Petitioner 5 - 7. Rejected as contrary to the greater weight of the evidence. 8. Rejected as not established by competent, substantial evidence. 10 and 11. Rejected as not established by competent substantial evidence. COPIES FURNISHED: Gregory L. Fisher, Esquire 149 Central Avenue St. Petersburg, Florida 33701 Edward A. Haman, Esquire Senior Attorney Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
