The Issue The issues in this case are: whether Respondent, Tallahassee Facility Operations, LLC, d/b/a Consulate Health Care of Tallahassee (“Consulate”), committed a Class III deficiency at the time of a complaint survey conducted on July 2, 2013; whether Consulate committed two further Class III deficiencies at a revisit survey on August 12, 2013; and, if Consulate did commit the alleged Class III deficiencies found during the surveys on July 2 and August 12, 2013, whether the latter deficiencies constituted “uncorrected deficiencies” meriting the imposition of a $1,000 fine and the issuance of a conditional license to Consulate for the period August 13, 2013 through September 30, 2014.
Findings Of Fact AHCA is the state agency charged with licensing of nursing homes in Florida under section 400.021(2), Florida Statutes, and the assignment of a licensure status pursuant to section 400.23(7), Florida Statutes.1/ AHCA is charged with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Pursuant to section 400.23(8), AHCA must classify deficiencies according to their nature and scope when the criteria established under section 400.23(2) are not met. The classification of the deficiencies determines whether the licensure status of a nursing home is "standard" or "conditional" and the amount of the administrative fine that may be imposed, if any. During the survey of a facility, if violations of regulations are found, the violations are noted on the prescribed form and referred to as "Tags." A tag identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, and sets forth specific factual allegations that the surveyors believe support the violation. Consulate operates a 120-bed nursing home at 1650 Phillips Road in Tallahassee and is licensed as a skilled nursing facility. July 2, 2013, complaint survey Having received c omplaints alleging Consulate’s failure to follow physician-ordered plans of care for residents, AHCA sent a survey team to conduct a survey of the facility on July 2, 2013. Registered nurse specialist surveyor Susan Page was specifically directed to examine the facility’s procedures regarding activities of daily living (“ADLs”) and its practices in following physicians’ plans of care. Ms. Page reviewed the records of Resident 1, a male resident who had suffered a fractured pelvis in a fall at his home. He had been fitted with an external fixation device to stabilize the fracture and was admitted to Consulate for rehabilitative care. The external fixation device was anchored by metal pins that were inserted through the skin and into the bone. When the fixator was removed, a small wound remained at the pin site on Resident 1’s hip. Resident 1 had been discharged on June 27, 2013. Ms. Page’s review was thus limited to the facility’s records. She looked at the generalized history of the resident, the physician orders, the grievance log, the ADL treatment record, care plan, and the Minimum Data Set information on Resident 1. Ms. Page discovered a written physician order dated June 1, 2013, that directed Consulate staff to clean the pin site with Betadine then wash off the Betadine and cover the wound with gauze twice a day for seven days, and afterwards to wash the wound with soap and cover it daily. The order directed a ten-day course of Zyvox, an antibiotic. Finally, the physician order stated, “Make sure [patient] showers daily.” Ms. Page testified that she reviewed other physician orders that showed changes in pain medications and indicated that Resident 1 was having issues with loose stool or diarrhea. He was tested for the bacterium Claustridium difficile (“C. diff”) in his stool. Ms. Page reviewed Consulate’s ADL Flow Record for Resident 1 and discovered that during the period from June 1 to June 27, the resident was given a shower on only seven days, despite the physician’s order that he receive a daily shower. On four days during that period, Resident 1 received no form of body cleansing. On the remaining days, he was given bed baths. Ms. Page and Debra Ball, a registered nurse specialist who was part of the survey team, each testified that a bed bath is not commensurate with a shower. A shower involves clean water running over the entire body, allowing the body to be cleansed with soap and rinsed with clean water. A bed bath involves a tub of soapy water and a tub of clean water. The resident remains in the bed and the staff person wipes the resident off as best she can. The resident is not immersed in clean water. Ms. Page explained the significance of Consulate’s failure to follow physician orders for Resident 1. The resident’s recent surgery provided a portal of entry for bacteria into the body, and the physician’s orders were designed to work in combination to minimize the possibility of infection. The daily shower was an essential part of the physician’s plan of care for Resident 1. A shower is invaluable in keeping low the bacteria count on the resident’s skin. The shower was especially important in this situation because of the pin site location on Resident 1’s hip and his noted problems with loose stools and possible C. diff infection. Ms. Page, opining as an expert in nursing, testified that the failure to follow the physician order in this case potentially compromised Resident 1’s ability to maintain or reach his highest practical mental, physical, or psychosocial well-being. Ms. Page specifically testified that due to the position of the wound site, the loose stools, and the fact that the portal of entry led directly to the bone, Resident 1 had a potential to contract cellulitis or osteomyelitis as a result of the deficiency. Ms. Page conceded the efficacy of cleansing with Betadine, but noted that the antibacterial cleansing was prescribed for only seven days and that the failure to give showers as prescribed occurred on consecutive days after the Betadine prescription had expired. As a result of the failure to provide showers or to note in the record any reason for that failure, the facility was cited for violating Florida Administrative Code rule 59A- 4.107(5), which provides: “All physician orders shall be followed as prescribed, and if not followed, the reason shall be recorded on the resident’s medical record during that shift.”2/ The deficiency tag correlating to this violation is Tag N054. Consulate was cited with a Class III deficiency for this violation. Ms. Page testified that the decision to classify the July 2, 2013, deficiency as Class III was reached by a consensus of the four-person survey team, all registered nurses, and was based on the facts of the case and the statutory definition set forth in section 400.23(8)(c): A class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident’s ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. Ms. Ball agreed that Consulate should be cited for violating rule 59A-4.107(5) and that the violation should be classified as Class III. Ms. Ball testified that in her experience it is not unusual for a physician to direct the manner in which the cleansing of a post-operative patient should occur. She noted that the pin site’s portal of entry went into the bone and that bone infections have high morbidity and mortality rates. Ms. Ball further noted the variety of infections that could occur in a case such as Resident 1’s: osteomyelitis, enterococcus, candida, methicillin-resistant staphylococcus aureus (“MRSA”), and the most common one, staphylococcus. Some of these infections could be life threatening. Ms. Ball, who was accepted as an expert in nursing, offered the opinion that the failure to follow the physician order for showers had the potential to cause a surgical site infection, which in turn had the potential to compromise Resident 1’s ability to maintain or achieve his highest practical physical well-being. Ms. Ball testified that an infection is never the sort of “minor impact” contemplated by the statutory definition of a Class IV deficiency. Ms. Ball testified that each of the four registered nurses on the survey team agreed that the failure to follow physician orders had the potential to compromise Resident 1’s health and that the violation should be classified as Class III. Patricia McIntire is a registered nurse consultant supervisor for AHCA. Her duties include reviewing cited deficiencies and ensuring that the evidence cited by the survey teams meets the requirements of the applicable statutes and regulations. Ms. McIntire was the supervisor who reviewed the July 2, 2013, survey file. She agreed that the cited deficiency should be classified as a Class III deficiency. AHCA’s citation gave Consulate until August 2, 2013, to correct the deficiencies noted in the survey. August 12, 2013 revisit survey Ms. Ball was sent to conduct a revisit survey of Consulate on August 12, 2013 in order to determine whether the previous deficiencies had been corrected. Ms. Ball was specifically looking for Consulate’s compliance with physician orders and the correction of the federal citation related to ADLs. Ms. Ball wanted to survey a sample of residents that would include both aspects of the corrections she sought. She knew that residents receiving pain medications would have physician orders for the medications. She therefore asked the facility to provide the records of residents who were receiving both pain medications and assistance with ADLs. Resident 1 and Resident 3 met those criteria. Resident 1, who was not the same person as the Resident 1 cited in the July 2 survey, had a physician order dated July 26, 2013, to change her peripheral inserted central catheter (“PICC”) dressing every seven days starting on August 1. When Ms. Ball checked the PICC dressing on Resident 1, she saw a notation on the dressing indicating that it had last been changed on August 3, nine days prior to the revisit. Ms. Ball testified as to her experience with PICC dressing changes as follows: I’ve done these dressing changes for years. A central line dressing change, we’re not talking about a piece of gauze and a piece of tape. You actually use an adherent Tegaderm dressing. It’s like Saran Wrap. Picture Saran Wrap and when you put it on something, it sticks. Picture Saran Wrap with a sticky surface, a sticky bottom. So you have this clear 4-by-4-inch, it’s a standard size, a clear sticky dressing of Tegaderm. Within your dressing kits— because these dressings have kits that you have to buy. It’s a very involved, long, tedious process to do a dressing change on a PICC. I’ve done several. When you do this dressing change, which isn’t just changing the dressing, it includes a cleaning to disinfect and reduce the number of microorganisms on your skin and then some of them have like a little biofilm. It’s a little patch that you put where the catheter’s going into the vessel. And that biofilm is designed to kind of provide a barrier for seven days. I think that’s probably one of the reasons it’s done every seven days. So you’ve got this clear dressing, this 4-by- 4-inch Saran-Wrap-appearing thing that has a sticky to it. And it’s not easy to peel off. Well, when you change a dressing, within your kit, you also have this little label. It measures about maybe 1-by-2 inches. It says “date” and “initials.” And what you do is when you change that dressing, within your kit, which has a lot of stuff in it, you take the little label after you’ve sealed it, and you put that other sticky label on top of that Saran Wrap type dressing. Well, picture taking a piece of adhesive tape off a piece of Saran Wrap. I challenge you. It can’t be done. It’s going to tear it. So there would be no reason for that dressing to still bear that date of August the 3rd if it had been changed since then. Ms. Ball testified that it is a basic standard-of-care, established by the Centers for Disease Control (“CDC”) and many other entities, that PICC-line dressings should be changed every seven days. Ms. Ball testified that the primary risk associated with failure to change PICC dressings as directed is CLABSI, which is the CDC’s acronym for a central line associated blood infection. She stated that 250 deaths a day are associated with central line associated blood infections. Ms. Ball testified that the potential harm is so great that the CDC has developed initiatives for surgical site infections and central line associated blood infections. Ms. Ball saw the date of August 9 scribbled on a white label stuck to the dressing but she disregarded it because it was not on the label provided in the PICC dressing kit. She spoke to Consulate’s unit manager, who stated that the note on the white label had been made by a Licensed Practical Nurse (“LPN”). The unit manager confirmed that LPNs do not perform PICC dressing changes but nonetheless told Ms. Ball that the dressing must have been changed on August 9. However, the nurse’s notes and other medical records indicated no dates other than August 3 for a PICC-dressing change for Resident 1. Ms. Ball asked Resident 1 when the PICC dressing was last changed but the Resident could not say. Consulate’s medication log confirmed that the dressing had not been changed since August 3. Ms. Ball testified that she looked at the medication record, nurse’s notes, and treatment record and could not find any evidence in any record kept by the facility that the PICC dressing had been changed since August 3. Ms. Ball was also unable to find any evidence that the PICC dressing had been changed from July 26 to August 3, 2013. Ms. Ball concluded that the PICC dressing for Resident 1 had not been changed from August 3 to the date of the revisit survey, August 12, 2013, a period of more than seven days. Ms. Ball also concluded that the PICC dressing had not been changed from July 26 to August 3, 2013, also a period of more than seven days. Consulate’s records gave no reason why the physician order to change the dressing every seven days had not been followed. The physician order required a PICC-dressing change on August 1, 2013. Ms. Ball found no documentation of a PICC- dressing change for Resident 1 on August 1, 2013. After she encountered problems with Resident 1’s treatment, Ms. Ball reviewed the record of Resident 3, who had a physician order dated July 23, 2013, to change her PICC dressing every seven days. Ms. Ball could find no documentation showing that a dressing change occurred from July 23 to August 2, 2013, a period of more than seven days. The facility’s records also gave no indication as to why the dressing change had not occurred. AHCA’s July 2, 2013, notice of deficiency required Consulate to complete all corrections by August 2, 2013. The failures to perform PICC-dressing changes for Residents 1 and 3 occurred on or after August 2, the date by which all corrections were to be completed. On August 12, 2013, Consulate was cited with an uncorrected deficiency for again violating rule 59A-4.107(5), by failing to follow physician orders or to document reasons why the orders were not followed. Ms. Ball testified as to the similarities between the deficient practices found in the July 2 survey and the August 12 revisit survey. In both cases, Residents had orders for specific types of treatment. Both cases involved residents with impaired skin integrity that substantially increased the risk of infection. In both cases, the facility failed to show it was following physician orders. Ms. Ball testified that the July 2 deficiency involved the potential for infection to the bone, a “very complex, very devastating” type of infection. She noted that the August 12 deficiencies involved central lines going directly to the residents’ hearts. She stated, “They both have potential for serious harm or a potential to keep you from getting well or increasing your stay or possibly killing you. Ultimately, you could die from either one.” Ms. Ball testified that in her opinion, Consulate’s failure to follow physician orders for Residents 1 and 3 potentially compromised their ability to maintain or reach their highest practical, mental, or psychological well-being. Ms. Ball testified that AHCA does not assign a specific classification for all deficiencies related to failure to follow physician orders. Each deficiency is assigned a classification based on an application of the statutory definitions to the facts of the specific case under consideration. In this case, Ms. Ball had no doubt that Consulate’s failure to follow physician orders constituted a Class III deficiency. Ms. McIntyre testified that she reviewed the facts related to the August 12, 2013, revisit survey. She agreed that Consulate failed to follow physician orders in accordance with rule 59A-4.107(5), that Consulate’s failures to follow physician orders were properly classified as Class III deficiencies, and that they constituted an uncorrected deficiency from the July 2, 2013, complaint survey. The plan of correction Section 400.23(8)(c) provides in part: “A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, a civil penalty may not be imposed.” Section 408.811(4) provides that a deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency. Section 408.811(5) provides: “The agency may require an applicant or licensee to submit a plan of correction for deficiencies. If required, the plan of correction must be filed with the agency within 10 calendar days after notification unless an alternative timeframe is required.” After the July 2, 2013, complaint survey, AHCA sent to Consulate a letter dated July 12, 2013, stating that “Deficiencies must be corrected no later than August 2, 2013,” and requiring Consulate to file a plan of correction within ten days. The letter provided that the plan must contain the following: What corrective action(s) will be accomplished for those residents found to have been affected by the deficient practice; How you will identify other residents having potential to be affected by the same deficient practice and what corrective action will be taken; What measures will be put into place or what systematic changes you will make to ensure that the deficient practice does not recur; and, How the corrective action(s) will be monitored to ensure the deficient practice will not recur, i.e., what quality assurance program will be put into place. On July 21, 2013, Consulate submitted a plan of correction that provided as follows as pertains to Tag N054, failure to follow physician orders: Resident #1 has been discharged from the facility on 6/27/2013. An audit has been conducted for current residents shower preferences and an audit has been conducted of current resident ADL sheets. Re-inservice staff on giving showers per shower schedule. Shower sheets will be reviewed 5 times weekly in the clinical meeting for completion. [CNAs] will complete shower sheets daily and the nurse will verify that a shower has been given. Findings will be reviewed at the monthly QA/PI committee meeting to ensure substantial compliance. On July 24, 2013, AHCA sent a fax to Consulate stating that its plan of correction had been approved on June 18, 2003. Barbara Stevens, Consulate’s vice president of clinical services, testified that Consulate completed the corrective work proposed in the plan of correction on or before August 2, 2013. Consulate contends that AHCA’s approval of its plan of correction, without requiring additional conditions or actions, effectively preempts AHCA from finding that the August 12 deficiencies are uncorrected deficiencies from the July 2 survey. AHCA accepted the proposed plan, Consulate performed the plan, and no deficiencies involving showers or other ADLs were a part of the August 12 deficiency findings. In other words, the failure to follow physician orders deficiencies found in the August 12 survey should not be considered “uncorrected” because they were unlike the failure to follow physician orders deficiency found in the July 2 survey. Ms. Ball testified that when AHCA conducts a revisit survey, it is not looking for compliance with a facility’s plan of correction; it is looking for compliance with statutes and regulations. She noted that Tag N054 specifically addresses failure to follow physician orders, not failure to shower a resident. Consulate’s plan entirely neglected to address what it intended to do going forward to assure that physician orders would be followed. She noted that virtually the same plan of correction was submitted for Tag F312, the federal ADL violation, and further noted that it should have been obvious that different actions would be required to correct a failure to provide ADLs and to correct a failure to follow physician orders. Ms. Ball testified that AHCA cannot lead a facility by the nose and tell it how to come into compliance. The facility is expected to know and follow the statutes and rules and to understand what it needs to do to come into compliance. She conceded that nothing in the plan of correction would have prevented the subsequent PICC-dressing violations, but opined that this was a flaw in the plan, not with AHCA’s determination that the PICC-dressing issue constituted an uncorrected deficiency. Consulate “missed the boat” by failing to address physician orders in its plan and paid the price during the August 12 revisit survey. Ms. McIntire testified that Consulate’s plan of correction touched on some of the subjects of its July 2 deficiencies, namely ADLs, but that AHCA expects the facility to correct everything cited in the notice of deficiency. AHCA expected Consulate to look holistically at all physician orders, not merely those related to ADLs. Ms. McIntire testified that when a facility is cited under the physician order tag, the facility will typically look at its entire resident population and establish a mechanism for determining whether staff is following physician orders. The facility is expected to implement whatever corrective actions are necessary to bring it back into compliance, not just for the few residents sampled in the survey but for all of them. It is up to the facility to decide what tool or mechanism it will use to correct the deficient practice. Ms. McIntire testified that AHCA cannot reject a plan of correction on the assumption that the facility did not intend to address physician orders. She stated that AHCA accepted Consulate’s plan because it did address some of the deficient practices that were identified, but that Consulate was nevertheless expected to correct every area in which it was found out of compliance. Ms. McIntire stated that following the plan of correction does not bring the facility into compliance because AHCA surveys for compliance with the regulations, not the plan of correction. Ms. McIntire stated that Consulate’s plan of correction included nothing that would have prevented the deficiency found on August 12 under Tag N054, but that the plan did correct Tag F312. Ms. McIntire testified that the plan of correction is a “jumping off point” for AHCA. The agency wants to see how comprehensively the facility is looking at deficient practices. AHCA proceeds on a good faith assumption that the facility is going to look at all of its residents who could have been affected by the deficient practice and make the proper corrections. Substantial compliance Consulate contended that it should not have been required to file a plan of correction at all because AHCA erred in finding the July 2, Tag N054, deficiency a Class III deficiency. Consulate argues that the deficiency should have been classified as Class IV because it had merely “the potential for causing no more than a minor negative impact on the resident.” Section 400.23(8)(d) provides that no plan of correction is required for an isolated Class IV deficiency. If the July 2 deficiency was Class IV, then the August 12 deficiencies cannot be considered “uncorrected.” Consulate’s argument rests essentially on the proposition that it substantially complied with the June 1, 2013, physician order for Resident 1. The pin site was cleaned with Betadine as prescribed. The wound was cleaned and gauzed as prescribed. The antibiotic was administered. The resident received a bath or shower on all but four days during the period from June 1 to June 27, and on some days he was washed more than once. Consulate argues that AHCA failed to establish how a failure to give Resident 1 a bath and/or shower on four days during the month of June presented a potential for physical, mental, or psychosocial discomfort to the resident or the potential to compromise the resident’s ability to maintain or reach his highest practical physical, mental, or psychosocial well-being.3/ Consulate’s argument is at odds with the evidence. The testimony of AHCA’s witnesses established the potential physical, mental, or psychosocial discomfort to the resident or the potential to compromise the resident’s ability to maintain or reach his highest practical physical, mental, or psychosocial well-being. The potential for infection was real, and the physician’s orders were fashioned to maximize Resident 1’s protection from any potential infection. Further, the deficiency for which Consulate was cited was not one with which it could “substantially” comply. Either the physician orders are followed or they are not. Ms. Page testified that facility staff may not pick and choose which physician orders to follow. The physician did not just pull the order out of the air and instruct Consulate to give the resident a daily shower.4/ It was a prescribed treatment, a preventive measure. Ms. Page observed that all of the prescribed measures were intended to work together to prevent infection. Ms. Ball stated that the order “was obviously infection control related. And he wouldn’t have written an order if he didn’t want it done. That’s why physicians write orders. If they write an order, they expect you to do that, hence, the word ‘order.’” Summary findings Based on the foregoing, it is found that AHCA properly cited Consulate on July 2, 2013 under Tag N054 for violating rule 59A-4.107(5) and properly classified the violation as Class III. Based on the foregoing, it is found that AHCA properly cited Consulate on August 12, 2013 under Tag N054 for two violations of rule 59A-4.107(5) and properly classified the violations as Class III. Further, it is found that AHCA properly cited Consulate for an uncorrected Class III violation for repeated failure to follow physician orders.
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 imposing a fine of $1,000 and further imposing conditional licensure on Respondent for the period from August 13, 2013 through September 30, 2014. DONE AND ENTERED this 31st day of December, 2014, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 31st day of December, 2014.
Findings Of Fact The parties Petitioner, Agency for Health Care Administration, Division of Quality Assurance, Board of Medicine, formerly Department of Business and Professional Regulation, Board of Medicine, is the state government licensing and regulatory agency charged with the responsibility and duty of regulating the practice of medicine pursuant to the laws of the State of Florida, in particular Section 20.42, Florida Statutes, Chapters 120, 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. Chapter 93-129, Laws of Florida. Respondent, Muhammad S. Mustafa, M.D., is now and was at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0047360. Respondent was licensed by endorsement on October 7, 1985, but did not, ostensibly, actively engage in the practice of medicine in the State of Florida until September 14, 1988. 4/ Respondent's last known address, as of the date of hearing, was 8245 North Nebraska Avenue, Tampa, Florida 33604. Respondent received his medical degree from the Oklahoma University School of Medicine in 1970, performed an internship from 1970 to 1971 at the Altoona Hospital, Altoona, Pennsylvania, did a four-year residency in general surgery from 1971 to 1975 at The Cleveland Clinic, Cleveland, Ohio, and started practice as a sole practitioner in Cleveland, Ohio, in November 1975. Respondent's practice consisted of general surgery and family medicine, and he practiced in a predominately blue collar neighborhood until his license to practice medicine was revoked by the State Medical Board of Ohio, as discussed infra. While practicing in Cleveland, respondent had staff privileges at St. Vincent Charity Hospital, Luthern Medical Center, St. John's Hospital, and St. John's Westshore Medical Center, but by May 1988 had restricted his practice to Luthern Medical Center and St. John's Hospital. Respondent resigned his staff privileges at Luthern Medical Center and St. Johns in December 1989. The Ohio charges On May 11, 1988, the State Medical Board of Ohio, the licensing authority for medicine in the State of Ohio, notified respondent that it proposed to take disciplinary action against his certificate to practice medicine and surgery in Ohio. The gravamen of the Board's charges were as follows: That respondent's prescribing practices with regard to approximately 83 difference patients, as well as his overall prescribing as reflected by a listing entitled "Total Drug Amounts by Drug, Year and Month," constituted: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease," as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes," as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established," as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. That as to Patient 152 respondent did between March 27, 1984 and December 12, 1985, and again between November 13, 1986 and April 1, 1987, prescribe controlled substance stimulants when the patient either gained weight or failed to lose weight, contrary to the provisions of Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further charged that respondent's billing to Patient 152's insurance company for services rendered between March 27, 1984 and December 15, 1986, reflected a diagnosis of "hypertension, obesity, ingrown toenail, nerves, low back pain, and arthritis" when there was no indication in respondent's record that he had treated the patient for any condition other than obesity. Such conduct was alleged to constitute "publishing a false, fraudulent, deceptive or misleading statement," as that clause is used in Section 4731.22(B)(5), Ohio Revised Code, and the "obtaining of, or attempting to obtain money or anything of value by fraudulent misrepresentation in the course of practice," as that clause is defined in Section 4731.22(B)(8), Ohio Revised Code. That as to Patient 151 respondent did between February 21, 1979 and April 17, 1986, and again between November 13, 1986 and April 1, 1987, prescribe controlled substances and stimulants when the patient either gained weight or failed to lose weight, contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further alleged that on respondent's billing to Patient 151's insurance company for services rendered between January 10, 1984 and November 13, 1986, the diagnosis of "menopause; arthritis; glossitis; bronchitis; hypertension; nerves; and chest wall pain" were entered when the majority of services rendered by respondent were for "obesity," a diagnosis not listed, and his records contain no indication that she was being treated for hypertension, nerves or arthritis. Moreover, an EKG and "comprehensive office exam" performed on November 13, 1986 and billed under a diagnosis of "chest wall pain" were in fact performed as part of the physical required prior to starting the diet program. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent's reports and billing to two different attorneys with regard to Patient 140 (who had been involved in accidents in June and November 1985) reflected dates of service and patient complaints which were not reflected in the medical records. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent prescribed controlled substances for Patient 241 in 1979, 1982 and 1983 through 1985 contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code, in that the patient had admitted to respondent in 1979 that he was addicted to Codeine and in 1985 that he was addicted to Percocet. Respondent was alleged to have first prescribed Percocet in 1983, upon the patient's complaint of back pain, without noting any physical exam or findings, and had continued prescribing it on a regular basis well into 1985. His prescribing of Codeine-based medications and Percocet continued after the patient's admission of addiction to those substances. Finally, citing 13 different patients as examples, the Board alleged that respondent routinely kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications prescribed or dispensed; prescribed controlled substances and dangerous drugs based upon patient requests for medications or patient complaints, often without utilizing appropriate testing or other methods for evaluating the validity or etiology of the complaints; and routinely prescribed controlled substance stimulants for weight loss over extended periods of time without regard to whether or not the patient demonstrated weight loss. Such conduct was alleged to violate Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. Moreover, respondent's acts or omissions with regard to certain prescriptions written on or after November 17, 1986, for patients 25, 34, 130, 166, 265, and 276, were alleged to constitute violations of Rules 4731-11-02 and/or 4731-11-04, Ohio Administrative Code, and therefore Section 4731.22(B)(20), Ohio Revised Code. The aforesaid notice of charges dated May 11, 1988, advised respondent of his right to request a hearing on the matter, his right to appear at such hearing in person or through his attorney, to present his position and argument, and to present evidence and examine witnesses appearing for or against him. Respondent timely requested such hearing, and was represented by counsel. The subject charges were heard before Wanita J. Sage, Esquire, Hearing Examiner for the State Medical Board of Ohio, on September 18, 1988. Thereafter, the Hearing Examiner rendered an extensive recommendation, which contained findings of fact, conclusions and an order. Such findings of fact sustained the charges filed against respondent, and are contained in petitioner's exhibit 2. The recommendation, which summarized the factual findings, concluded: The acts, conduct, and/or omissions of Muhammad S. Mustafa, M.D., as set forth in the above Findings of Fact, constitute: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease", as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes", as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and/or "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established", as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. The testimony and evidence presented in this Matter amply establish that Dr. Mustafa, in the routine course of his practice, prescribed controlled substances and dangerous drugs for patients for excessive periods of time, without establishing valid medical indication or diagnosis. He prescribed potentially addictive controlled substances, often in dangerous combinations, for patients for years without adequately evaluating their complaints or attempting alternative therapies. In the case of Patient 241, Dr. Mustafa admitted that he had prescribed Codeine for this patient for a period of over one month in 1979 as treatment for his admitted Codeine addiction. Several years later, Dr. Mustafa began prescribing Percocet upon this same patient's complaint of back pain, without any evidence of evaluation, and continued to do so over a two-year period. When Patient 241 then admitted that he was addicted to Percocet, Dr. Mustafa continued to prescribe it for three addi- tional months as treatment for his addiction. Such prescribing contravenes both federal and state laws, including each of those provisions listed above. Dr. Mustafa's claim that there was no adequate treatment program available in 1979 does not satisfactorily explain his prescribing for Patient 241's addiction in 1985. The patient records clearly demonstrate Dr. Mustafa's willingness to prescribe whatever patients requested, even when objective data indicated that there was no valid medical indication for such drugs and no medical basis for the patients' complaints. In the case of Patient 36, Dr. Mustafa liberally prescribed synthetic thyroid hormone at her request, despite the fact that he had obtained tests showing her thyroid levels to be normal. He provided this same patient with narcotic pain medications, even when her complaints of pain were apparently related to urinary tract infections, menstrual cramps, or other conditions which would not appear to justify the use of controlled substances. In the case of Patient 308, Dr. Mustafa prescribed combinations of controlled substances and dangerous drugs, including narcotic analgesics, tranquilizers, hypnotics, barbiturates, antipsychotics, tricyclic antidepressants, and stimulants, even though he was aware that her complaints generally [had] no physical cause, but rather stemmed from emotional problems. On one occasion, he actually telephoned in a prescription for Compazine for Patient 308 when she was in the hospital under the care of another physician for treatment of a drug overdose. Even though Dr. Mustafa was admittedly aware that she had been hospitalized on three occasions due to drug overdoses, he continued afterwards to prescribe dangerous combinations of drugs for her, including the substances on which she had overdosed. In the case of Patient 130, Dr. Mustafa regularly prescribed and administered large amounts of narcotic analgesics over an approximately four year period. Dr. Mustafa admitted that Patient 130 was chemically dependent on narcotics, but claimed they were necessary to control his back pain. Yet, the patient record clearly indicates that Dr. Mustafa made no effort to independently evaluate or diagnose, but rather relied solely upon this patient's representations as justi- fication for his inappropriate prescribing in response to this patient's requests for addictive drugs. Furthermore, the patient record indicates that Dr. Mustafa abruptly discontinued prescribing pain medications and tranquilizers for Patient 130 in early 1987. In general, the patient records demonstrate lack of independent evaluations by Dr. Mustafa of patients' complaints of pain, for treatment of which he prescribed large amounts of controlled medications for excessive periods of time. Such prescribing violates each of the above provisions of law. Further, the patient records of Patients 152, 151, 25, 26, 36, 218, 236 and 265 support the State's allegations that Dr. Mustafa routinely prescribed controlled substance stimulants for weight loss purposes over extended periods of time, whether or not a patient demonstrated weight loss. Dr. Mustafa admitted that it had been his standard practice to prescribe a controlled substance anorectic upon a diet patient's initial visit, without first attempting to achieve weight loss through other means, such as diet or nutritional counseling. In addition, Dr. Mustafa often prescribed Lasix, a diuretic, for weight control purposes. As indicated by the testimony of Dr. Junglas, there is no valid medical indication for the use of a diuretic for weight loss. Such pre- scribing of diet medications also violates each of the above provisions of law. Certainly, both the patient records and the testimony of Dr. Mustafa support the Board's allegations that Dr. Mustafa, in the routine course of his practice, kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications he prescribed or dispensed to his patients. Although Dr. Mustafa appeared to claim that he had done examinations or made physical findings which justified the medications he prescribed, he stated that he simply didn't have time to write down everything he knew about his patients. The patient records generally reflect only patient requests for refills of medications, non-specific patient complaints, and lists of drugs prescribed or administered by Dr. Mustafa. They are generally devoid of evidence of appropriate diagnostic testing; documentation as to the nature or severity of the patient's reported pain, illness, or injury; evidence of investigation of alter- native therapies; thorough histories, physical examinations, and diagnoses; in short, infor- mation necessary to assure that the patient receives appropriate treatment. Such records evidence Dr. Mustafa's violations of each of the above provisions of law. As indicated by the testimony of Dr. Donald Junglas, Dr. Mustafa's treatment with regard to each of the 17 patients whose records were reviewed at hearing violates each of the above provisions of law. Further, the prescriptions identified as State's Exhibits #6A through #6H and summarized by the "Prescription List by Patient Number" and the listing of "Total Drug Amounts by Drug, Year, and Month" (State's Exhibit #1) indicate that Dr. Mustafa's inappropriate, long-term prescribing of controlled substances was not confined to those 17 patients, but rather was common in his practice. Dr. Mustafa's prescribing of controlled substances for weight reduction for Patients 152 and 151 after November 17, 1986, constitutes "violating . . ., directly or indirectly, . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rule 4731-11-04, Ohio Adminis- trative Code, as in effect on and after November 17, 1986. Rule 4731-11-04(B) requires that a physician's use of controlled substances for purposes of weight reduction in the treatment of obesity be only as an adjunct in a regimen of weight reduction based on caloric restriction. It further requires the physician to determine, before instituting treatment with a controlled substance, that the patient has made a "substantial good-faith effort to lose weight in a treatment program utilizing a regimen of weight reduction based on caloric restriction, nutritional counseling, behavior modification, and exercise, without the utilization of controlled substances, and that said treatment has been ineffective. Further, the physician must obtain a thorough history, perform a thorough physical examination, and rule out the existence of any recognized contradictions to the use of the controlled substance. Further, according to this rule, the physician may not initiate or must discontinue utilizing controlled substances immediately upon determin- ing that the patient has failed to lose weight while under treatment with a controlled substance over a period of 14 days, such determination to be made by weighing the patient at least every fourteenth day. Dr. Mustafa's prescribing of Schedule IV anorectics for Patients 152 and failed to meet these requirements. Patient testified that he had never tried dieting before seeing Dr. Mustafa. Dr. Mustafa's lecturing Patient 152 about snacking does not constitute the institution of a regimen of weight reduction based on caloric restriction. The documentation in the patient records, parti- cularly in the case of Patient 151, fails even to establish that these patients' overweight constituted obesity which might have justified the use of a controlled substance in the event that other treatment methods had been proven ineffective. Further, Dr. Mustafa failed to discontinue prescribing Schedule IV anorectics for Patients 152 and 151 when they failed to lose weight, as required by Rule 4731-11-04(B). In fact, although Dr. Mustafa admittedly become aware of this Rule in December, 1986, he prescribed Schedule IV anorectics for Patient 152 when he demonstrated weight gains on February 5, March 5, and April 1, 1987, and he prescribed Schedule IV anorectics for Patient 151 when she demonstrated failure to lose weight on January 9, February 5, and March 5, 1987. Pursuant to Rule 4731-11-04(C), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Further, Dr. Mustafa's prescribing for Patients 25, 34, 130, 166, 265, and 276, on and after November 17, 1986, constitutes "violating . . ., directly or indirectly . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rules 4731-11-02 and/ or 4731-11-04, Ohio Administrative Code, as in effect on and after November 17, 1986. With respect to patient 25, Dr. Mustafa violated Rule 4731-11-04(B) by prescribing the Schedule IV controlled substance Fasin 30 mg. for purposes of weight reduction on both December 19, 1986, and February 13, 1987, without: instituting a regimen of weight reduction based upon caloric restriction, first determining the ineffectiveness of other methods of weight reduction, or determining whether or not she failed to lose weight by weighing her at least every fourteenth day. Further, Dr. Mustafa violated Rule 4731-11-02(D) by telephoning in a prescription for 30 Tranxene 7.5 mg., a Schedule IV anxiolytic, for Patient 25 on April 2, 1987, without documenting any exam- ination, evaluation, diagnosis, or purpose for this controlled substance. On seven occasions from November 19, 1986, through April 29, 1987, Dr. Mustafa prescribed Vicodin, a Schedule III narcotic analgesic, for Patient 34 without documenting any examination, evaluation, diagnosis, or purpose for his use of this addictive controlled substance. In fact, four of these prescriptions were issued after Dr. Mustafa had discussed with Patient 34 the addictiveness of Vicodin and the need for him to take less of it. Such acts and omissions violate both paragraph (C) and (D) of Rule 4731-11-02. Dr. Mustafa's acts and omissions with regard to Patient 130 also constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Without documenting any examination, evaluation, diagnosis, or purpose other than the patient's requests for pain medication, Dr. Mustafa administered IM injections of Demorel 100 mg., a Schedule II narcotic analgesic, to Patient 130 on December 13, 1986, January 6, 1987, and April 7, 1987. In addition to the Demerol injection, he also prescribed 100 Tylenol #4, a Schedule III narcotic analgesic, for this patient on April 7, 1987, solely upon Patient 130's request for pain medications for vacation. Dr. Mustafa had previously notified this patient on January 12 that he would prescribe no more tranquilizers or pain medications for him. Dr. Mustafa admitted at hearing that this patient had been chemically dependent upon narcotics, though he claimed that he had needed them to control his pain. Upon Patient 166's request, without document- ing any examination, evaluation, diagnosis, or purpose, Dr. Mustafa prescribed for her 100 Vicodin, a Schedule III narcotic analgesic, on December 24, 1986, and 50 Vicodin on January 29 and again on April 23, 1987. Such acts violate Rule 4731-11-02(D). With respect to Patient 265, Dr. Mustafa initiated treatment with Adipex-P, a Schedule IV stimulant anorectic controlled substance, on December 9, 1986, without first determining the effectiveness of other methods of weight reduction, without instituting a regimen of weight reduction based on caloric restriction, and without obtaining a thorough history or performing a thorough physical examination to rule out the existence of any contradiction. Dr. Mustafa continued to prescribe Apidex-P through April 31, 1987, without weighing Patient 265 at least every fourteenth day and without immediately discontinuing such treatment when this patient showed a weight gain on February 10, 1987. Such acts and omissions violate Rule 4731-11-04(B). Furthermore, from December 9, 1986, through May 11, 1987, Dr. Mustafa prescribed Valium for her on three occasions, two of which prescriptions he telephoned in. On five occasions during this period, he prescribed Darvon Compound 65 for her, including one occasion when Patient 265 indicated that she had 30 tablets left from a previous prescription, two occasions where Dr. Mustafa provided her with postdated prescriptions, and one occasion where he telephoned in a prescription. At no time did Dr. Mustafa document any examination, evaluation, diagnosis, or purpose other than the patient's stated complaint, for his prescribing of these controlled substances. Such acts and omissions constitute violation of both paragraphs (C) and (D) of Rule 4731-11-02. In an approximately five month period from November 17, 1986, through April 28, 1987, Dr. Mustafa prescribed for or administered to Patient 276 a total of 519 dosage units of controlled substances, including: 25 Demerol 50 mg., a Schedule II narcotic analgesic; 2 IM injections of Demerol 50 mg.; 2 IM injections of Demerol 75 mg.; 60 Fiorinal, a Schedule III barbiturate analgesic; and 430 Darvocet N-100, a Schedule IV narcotic analgesic. Of these, 230 dosage units were prescribed by telephone. Throughout this period, Dr. Mustafa failed to document examination, evaluation, diagnosis, or purpose for this prescribing other than patient requests and complaints. On one occasion, he did note a physical finding of severe pain and tenderness in the back, radiating downward; however, no further evaluation was done and no diagnosis was indicated. On another occasion, Dr. Mustafa noted a diagnosis of severe migraine headache, but failed to state any information upon which that diagnosis was based. In view of the addictiveness and volume of the substances so prescribed, it is concluded that Dr. Mustafa's acts and omissions with regard to Patient 276 constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Pursuant to Rule 4731-11-04(C), Ohio Administ- rative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Pursuant to Rule 4731-11-02(F), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-02(C) and (D) also violate Sections 4731.22(B)(2) and (B)(6), Ohio Revised Code. Further, in view of the nature and/or amounts of the drugs prescribed and the circumstances with regard to such prescribing, Dr. Mustafa's acts and omissions with regard to Patients 130, 265, and 276 are found to constitute purposeful, knowing, or reckless violations of paragraph (C), and thus, pursuant to paragraph (F), also violate Section 4731.22(B)(3), Ohio Revised Code. Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of Fact #7 and #13, above, constitute: "Publishing a false, fraudulent, deceptive, or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Reviewed Code. Claim forms submitted by Dr. Mustafa or his office staff to insurers for reimbursement for Dr. Mustafa's services for both Patient 152 and Patient 151 reported diagnoses for which he had not treated those patients. The fact that diagnoses appeared on claim forms, but not in the patient records, cannot be attributed merely to Dr. Mustafa's poor documentation. Although Dr. Mustafa's patient records clearly indicate that the EKG's done in November, 1986, were part of physical examinations for initiation of diet programs, these EKG's were claimed under diagnoses of hypertension for Patient 152 and chest wall pain for Patient 151. In fact, the "Weight Reduction Program" form contained in Patient 152's file indicates that he had no history of hypertension or heart disease. It must be concluded that false diagnoses were reported for purposes of obtaining reimbursement from the insurer for performance of these routine tests. Although not included in the Board's allegations, it is noted that a similar billing was submitted on behalf of another patient reviewed in this Matter, Patient 25 (See Finding of Fact #19). Although Dr. Mustafa denied knowledge of or responsibility for these false billings, copies of the claims, many of which were signed by Dr. Mustafa, were made a part of the patients' records. Furthermore, contrary to Dr. Mustafa's contentions, he is responsible for the billing procedures of his office. It must be concluded that Dr. Mustafa knew or should have known of the fraudulent billings submitted on behalf of Patients 152 and 151. Further, Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of fact #15 and #16, above, constitute: "Publishing a false, fraudulent, deceptive or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Revised Code. Dr. Mustafa submitted billings and reports of Patient 140's attorneys, listing dates of service and fees not reflected in the patient record. In addition, he billed both attorneys for a January 28, 1986, office visit. Dr. Mustafa's attempts to explain these discrepancies are not convincing. The reports to the attorneys listed no specific treatments or medications for the dates reported; thus, they could not be adequate substitutes for clinical notes which Dr. Mustafa claimed to have recorded on separate cards. Further, Dr. Mustafa claimed that he had made clinical notes on cards, later discarded, because Patient 140 had come to his home, rather than to his office, for treatment; yet he had earlier testified that his office was in his home (Tr. at 41). Also, Dr. Mustafa's attempt to blame his receptionist for the double billing of the January 28, 1986, visit is not well taken. Dr. Mustafa signed the reports submitted to both attorneys and was responsible for their accuracy. It is evident that the billings submitted to Patient 140's attorneys for reimbursement for professional services fraudulently misrepresented the extent of and fees for Dr. Mustafa's services. Although not part of the Board's charges, it is further noted that the patient record for Patient 166 contains a billing submitted to an attorney which contains both dates of service and fees which are not reflected in the patient record (see Finding of fact #31). * * * * * The testimony and evidence in this Matter sub- stantially shows that Dr. Mustafa, in the routine course of his practice, engaged in inappropriate, indiscriminate prescribing of controlled substances and dangerous drugs. The patient records evidence his willingness to prescribe at the patient's request, without regard for medical indications or patient welfare. In at least one case, he admittedly prescribed narcotics to a known addict for an inappropriate period of time without referring him to an authorized treatment program. Both the State's exhibits and the testimony of its expert, Dr. Junglas, rob Dr. Mustafa's claim, that his prescribing was in accordance with acceptable community standards for the time, of credence. Dr. Mustafa admitted that he had ignored the warnings of drug manufacturers and FDA labeling with regard to his long-term prescribing of controlled substances, relying on information he claimed to have obtained from his colleagues. At best, Dr. Mustafa's prescribing practices reflect a willful ignorance of the properties and effects of drugs. Neither willful ignorance nor the lack of moral character demonstrated by Dr. Mustafa's fraudulent billings would seem to be remediable. PROPOSED ORDER It is hereby ORDERED that the certificate of Muhammad S. Mustafa, M.D., to practice medicine and surgery in the State of Ohio shall be and is hereby REVOKED. This Order shall become effective thirty (30) days from the date of mailing of notification of approval by the State Medical Board of Ohio, except that Dr. Mustafa shall immediately surrender his United States Drug Enforcement Administration certificate and shall not order, purchase, prescribe, dispense, administer, or possess any controlled substances, except for those prescribed for his personal use by another so authorized by law. Further, in the interim, Dr. Mustafa shall not undertake treatment of any individual not already under his care. Wanita J. Sage Attorney Hearing Examiner The Hearing Examiner's proposed findings of fact, conclusions and order were adopted by the State Medical Board of Ohio on December 6, 1989. Respondent appealed the Board's order through the courts and on May 4, 1992, the Ohio Supreme Court refused respondent's request that it take jurisdiction of the case. Consequently, the order of the State Medical Board of Ohio revoking respondent's license to practice medicine became effective June 15, 1992. Other matters At hearing, respondent offered the opinion of Adnan E. Mourany, M.D., Soundiah Selvaraj, M.D., and Marcello Mellino, M.D., by way of deposition (Respondent's exhibits 9-11), concerning respondent's reputation as a physician. Dr. Mourany is licensed to practice medicine in the State of Ohio, as well as Indiana, Minnesota and New York, and has practiced since 1986. He is Chairman of Surgery and Chief of Otolarynology at St. John's Westshore Hospital, and has known respondent professionally and personally since 1979. Dr. Selvaraj is licensed to practice medicine in the State of Ohio, and has practiced since 1974. he is Chief of Internal Medicine and Ambulatory Care at the Luthern Medical Center, and has known respondent professionally since 1976. Dr. Mellino is licensed to practice medicine in Ohio, and has practiced for 13 years. He is a cardiologist, and has known respondent professionally since 1978. It was the opinions of Doctors Mourany, Selvaraj and Mellino that respondent was an excellent surgeon who enjoyed a reputation as a good physician. 5/ At hearing, respondent also presented proof that during medical school he received an award from the Governor of Oklahoma for having performed volunteer work with charitable organizations, and that during his practice in Cleveland he received a ten-year service award from Luthern Medical Center and an award from the United States Senate recognizing his volunteer work for the Cleveland Foundation. Respondent also participated in two projects in Cleveland, one in 1983 and one in 1987, to treat patients without charge. All such activities predated the charges filed by the Ohio Board of Medicine. Since revocation of his Ohio license, respondent attended three courses of continuing medical education programs. The first, "Medical Malpractice and Risk Management--1993," was apparently completed in October 1993; the second, "AIDS and Florida Law--1993," was apparently completed in October 1993; and the third, "Surgical Education and Self-Assessment Program," was apparently completed in November 1993. Other than having attended such courses, respondent's activities since the revocation of his Ohio license do not appear of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license to practice medicine in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1994. WILLIAM J. KENDRICK 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 12th day of September 1994.
The Issue The issues are whether Respondent failed to maintain an accurate medication record relating to narcotic medications in violation of Section 400.419(1)(b), Florida Statutes, and Rule 58A-5.0185(3)(b), Florida Administrative Code; and if so, what penalty should be imposed.
Findings Of Fact Petitioner has authority to license assisted living facilities (ALFs) and the duty to enforce all statutes and rules governing such facilities. Respondent is a licensed ALF with a total capacity for 35 residents. Respondent's License No. AL5888 is effective March 20, 2002, through March 19, 2004. On January 31, 2002, Petitioner completed a biennial survey of Respondent's facility. During the survey, Petitioner's staff observed Respondent's staff administering medication to six residents who needed medication assistance. Resident No. 6 received a narcotic medication, in tablet form, that she was supposed to take by mouth three times daily, as needed, for pain. The medication is addictive and may be obtained only by prescription. The prescription bottle at issue here indicated that it was filled on January 21, 2002, with 100 tablets. There is no other evidence regarding the number of tablets in the bottle when it arrived at Respondent's facility. Respondent did not count the tablets in the bottle upon receiving it from the pharmacy. Resident 6's MOR showed that she received the narcotic tablet three times daily, everyday, with no missed doses during the time period at issue here. According to the MOR, Resident 6 received a total of 32 doses of the medication beginning January 21, 2002, at 7:00 a.m. through January 31, 2002, at 12:25 p.m. However, the bottle contained only 54 tablets as of January 31, 2002, at 12.25 p.m. Respondent's staff could not explain or account for the 14 missing narcotic tablets. Under cover of a letter dated February 12, 2002, Petitioner advised Respondent that the biennial survey had identified a Class II deficiency relative to Resident 6's medication administration. The letter requested Respondent to file a plan of correction within ten days. Resident 6's narcotic medication was refilled on February 19, 2002, with 100 tablets. As of March 8, 2002, Resident 6 had 51 pills remaining in the new prescription bottle. On March 8, 2002, Petitioner's staff conducted a follow-up visit to Respondent's facility. The count of tablets in Resident 6's narcotic medication prescription bottle, when compared to the MOR, was correct at that time. Under cover of a letter dated March 15, 2002, Petitioner advised Respondent that the previously cited deficiency had been corrected.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of October, 2002. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Alvin L. Peters, Esquire 25 East Eighth Street Panama City, Florida 32401 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 issues in this case concern the challenge by Orange Park Care Center, Inc. (Orange Park) to the classification of certain deficiencies discovered in an inspection of the nursing home facility as conducted by the State of Florida, Department of Health and Rehabilitative Services (HRS). In particular, Orange Park believes that the choice by HRS to classify the NH-148(2) and (3), deficiencies as class II, in contrast to Class III, was inappropriate. Finally, Orange Park requests that it be recognized as a superior facility, assuming that the classification scheme in question, as posed by HRS, is found to be incorrect.
Findings Of Fact At all times relevant to this cause, Orange Park was licensed as a nursing home through recognition by HRS and thereby certified to participate in the Medicaid program. On December 12, thru 14, 1983, an annual license survey/ inspection was conducted in the nursing home facility. This survey was by officials within HRS. Prior to that survey Orange Park had been rated as a superior facility. In the course of the survey, deficiencies were discovered to include two deficiencies described as NH-156 and NH-157. Those deficiencies were characterized by HRS as Class II deficiencies, which if an accurate depiction would cause Orange Park to lose its superior rating as a nursing home facility. Other deficiencies included a deficiency known as NH- 148. There were several aspects to that deficiency. The first part of the deficiency pertained to a contention that no documentation could be found indicating that the consulting pharmacist to Orange Park had reviewed the matter of controlled drugs accountability. The second item related to a claim that Lidocaine and Isuprel, medications related to cardiac care were in the Emergency Medication kit, notwithstanding the fact that the effective date of those medications has passed or expired. The expiration dates were in February and July, 1983, respectively. The final contention related to the NH-148 deficiency dealt with the substance Benadryl, as prescribed for a patient within the nursing home on a p.r.n. basis. This substance bore an expired date of September, 1983. All substances were placed in the Emergency Medication Kit, based upon a decision of the pharmaceutical services committee within the nursing home. Although David Hodge, pharmacist and consultant to HRS testified that outdated drugs may promote harm to the patient when administered, he was not certain of the implications of using the outdated or expired medications described in this paragraph. Certain conferences or exit interviews were conducted between staff members of HRS and the nursing home and through those conferences the impression was gained that the NH-148 violations described constituted Class III violations or deficiencies. The NH-156 and 157 deficiencies continued to be perceived by HRS staff as Class II violations. On that subject, effective February 29, 1984, correspondence was forwarded to the administrator of Orange Park, acknowledging corrections which had been made to the deficient conditions including NH-148, 156, and 157. Those items had been corrected effective February 20, 1984. In this correspondence there is attached a sheet classifying the deficiencies, reflecting NH-148 as Class III and NH-156 and 157 as Class II. Prior to the February 29, 1984 correspondence discussed above, namely on February 17, 1984 Orange Park had challenged the classification of NH-156 and 157 as being Class II deficiencies, which challenge was referred to the Division of Administrative Hearings for consideration. On June 21, 1984, correspondence was addressed to the administrator of Orange Park from Ivan B. Owen, Supervisor, Area I, Office of Licensure and Certification, of HRS. That correspondence stated, during a recent review of our files it was discovered that a typographical error was made on page 2 of your survey report of December 12-14, 1983, (copy attached). The revised page 2 has been altered to indicate that NH-148(2) and (3), are classified as Class II deficiencies and NH-158 and 157 are Class III deficiencies. This adjustment occasioned an amended petition by Orange Park challenging NH-148(2) and (3) as being Class II deficiencies. That amendment to the position of HRS defined the nature of the hearing for which the Recommended Order is being entered. It gave definition in the sense that Orange Park accepted the characterization of NH-156 and 157, as being Class III deficiencies; however, it took issue with the classification of NH-148(2) and (3) as being Class II deficiencies. Having considered the testimony of the witnesses for HRS, it is not clear why the decision was made to change the proposed classification of NH-148 from a Class III to a Class II deficiency. Therefore, in terms of placing due regard or deference on the interpretation or policy choice of HRS, related to decision to change its position on the classification, deference cannot be afforded, there being no record basis supporting this policy decision. As a consequence, the decision on the question of classification must be made based upon a review of the underlying evidential facts measured against the statute and rules pertaining to the classification of deficiencies, without the benefit of an HRS policy statement. The HRS change in position is made more bewildering given the fact that in the inspection of another nursing home facility, known as the Green Cove Springs Geriatric Center, as conducted on November 14 through 16, 1984, an NH-147 violation was found and classified as Class III based upon the fact that an outdated ampule of Meperidine was found in the Emergency Medication Kit, a similar circumstance to that of the present case. In examining the conditions in existence at the time of inspection there were other containers of Lidocaine and Isuprel in the Emergency Medication Kit which were not outdated and could have been utilized for the benefit of patients, assuming that the appropriate medical professional followed the facility procedures and read the expiration dates on the expired containers of Lidocaine and Isuprel prior to the administration of those substances and discarded those which had expired. The history of those particular items within the Emergency Medication Kit indicated that neither of the substances had ever been administered for the benefit of a patient. The issue of the ability of the nursing home to properly utilize the two substances in the nursing home setting was also presented, and left some question about the ability to use those substances and the willingness to use the substances given that uncertainty. The likelihood of pursuing their utilization is further put to question given the close proximity of a hospital wherein the medications could be given without that quality of concern. The questioned Benadryl has not been administered to the patient for whom it was prescribed during that patients stay in the facility between December, 1982 and October, 1984. This medication could have been given by a duly licensed professional, however to use this expired medication it would be necessary to disregard the policy of reading the label and discovering the expired condition. Additional Benadryl was found in the Emergency Medication Kit which was in date. Should the Class II deficiencies pertaining to NH-148, be set aside, Orange Park would be entitled to receive a superior rating as a nursing home, per stipulation of the parties.
The Issue The issues are whether Respondent, as the owner and operator of an assisted living facility (ALF), is guilty of failing to correct seven deficiencies by a followup survey conducted on July 19, 2011, and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has owned and operated an ALF at 567 Northeast 137th Street. On May 26, 2011, Petitioner's surveyor conducted a survey of the ALF in connection with the renewal of Respondent's license. On July 19, 2011, Petitioner's surveyor conducted a followup survey of the ALF to determine whether Respondent had corrected the deficiencies cited in the initial survey. At the conclusion of the May 26 survey, the surveyor conducted an exit conference with Ms. Nelson. The surveyor obtained Ms. Nelson's signature to a form explanatory letter that states: The purpose of this letter is to explain the process now that the survey has been completed. During the exit conference, you . . . were advised of the deficiencies and were requested to write them down. At this time we also established time frames for the correction of each deficiency. You will receive a written report from our office of this survey. The time to correct, however, starts from today, the day of the survey. . . . It is required that each deficiency be corrected by the date established. If a deficiency is not corrected within the required time frame, the facility may be assessed an Administrative Fine by the Central Office in Tallahassee. . . . Additional time may be granted to correct specific deficiencies if a written request is received prior to the original date of correction. This written request must identify the deficiency, by tag number (refer to the deficiency report), to be extended . . .. When the written result of this visit is received, your copy of the report must be made available to the public and residents or participants according to the specific program requirements. . . . Petitioner's surveyor did not mention a deficiency report in her testimony, nor do any of the exhibits refer to or include a deficiency report. Petitioner did not refer to a deficiency report in its proposed recommended order or Administrative Complaint. The surveyor's handwritten notes for the initial survey do not include tag numbers, but her notes for the followup survey supply what appear to be tag numbers for the deficiencies. (Petitioner exhibits, pages 44-46 and 52-53.) Perhaps Petitioner generated a deficiency report after the initial survey, but there is absolutely no indication in the record that it did so or, even if it did, that it provided the deficiency report to Respondent. Interestingly, Petitioner exhibits pages 75-76 are fax cover sheets, both dated August 2, 2011, referencing an attached Form 3020, which is a deficiency report, but Petitioner exhibits omit similar cover sheets for the initial survey. Although the Administrative Complaint identifies the deficiencies for which Petitioner's surveyor cited Respondent, this pleading obviously was not available to Respondent prior to expiration of the time frames for corrections. Also, absent a copy of the deficiency report, Respondent could not obtain an extension of time to make corrections, as this request had to include the tag numbers that are included in the deficiency report, nor could Respondent comply with the directive to post the report at the facility. But the most serious problems arising from Petitioner's failure to provide Respondent with a deficiency report are that Ms. Nelson would not have known exactly what to correct (unless she is a very good notetaker) and would not have known the deadlines for correcting the deficiencies. Given the number and level of detail of the allegedly uncorrected deficiencies, it is impossible to favor Petitioner with the inference that, at the end of the initial survey, its surveyor accurately communicated all of the cited deficiencies and all of the corrective time frames, and Ms. Nelson accurately captured all of this information. As noted in the Conclusions of Law, section 408.811(4), Florida Statutes, provides for a corrective time frame of 30 days, unless Petitioner provides a longer or shorter time frame. The only mention at the hearing of any time frame for correction was the testimony of Petitioner's surveyor, who stated that she gave Respondent 30 days to apply for approval of an emergency management plan. The surveyor did not testify that a 30-day time frame applied to all deficiencies, as she easily might have done, if she had set the same time frame for all of the deficiencies; she testified that a 30-day time frame applied specifically to the requirement of submitting an emergency management plan. Even if the surveyor had testified that she had given Respondent 30 days to correct all of the cited deficiencies, this deadline could not reasonably have expired before Petitioner provided Respondent the deficiency report. The form letter warns that the corrective time frame begins from the date of the completion of the initial survey, but the form letter assumes that Petitioner will issue the deficiency report a few days later. Here, though, the corrective time frames expired before Respondent received the deficiency report, without which, as noted above, she could not even have applied for an extension of any of the corrective time frames. As discussed in the Conclusions of Law, the failure of Petitioner to prove that it provided Respondent with a deficiency report, including a detailed citation of individual deficiencies and a clear time frame for their correction, necessitates the dismissal of the Administrative Complaint. The following findings are provided in case these Conclusions of Law are ultimately not sustained. By May 26, 2011, Resident #1 had undergone a significant change while at the ALF because she had developed a stage 3 pressure wound or ulcer, her activities of daily living (ADLs) had declined, and she had been hospitalized earlier in May. However, Respondent failed to keep written records detailing any changes in the pressure wound, discussing any decline in ADLs, or explaining the reason for the recent hospitalization. By July 19, 2011, Resident #1 had been rehospitalized, but Respondent's records did not disclose why. On May 26, the bed rails were halfway up on Resident #1's bed. However, Respondent did not have an authorizing order from a physician or consent signed by the resident or her representative. On July 19, the bed rails were halfway up on the bed of Resident #3. However, Respondent did not have an authorizing order from a physician or consent signed by the resident or her representative. This finding is consistent with Count Two of the Final Order. On May 26, the surveyor examined the MOR for Resident #1. The allegations concerning Resident #1's MOR for the initial survey are impossible to assess because the MOR that Petitioner introduced into evidence is illegible as to critical entries. The allegations concerning Resident #2's MOR for the initial survey are unproved except for the misadministration of Simvastatin, which was to be administered once at bedtime; the initialed MOR reveals that staff observed the self- administration of this medication once in the morning and once in the evening for the entire month of May. Petitioner's failure to produce the bingo card instructions, in order to prove some conflict between them and the reprinted prescription shown for each drug on the MOR, precludes a finding of a conflict, or a finding that observing the self-administration of drugs in accordance with the reprinted prescriptions shown on the MOR was in any way incorrect. The allegations concerning Resident #3 for the initial survey are impossible to assess because Petitioner neglected to produce a copy of her MOR. On July 19, the initialed MOR for Resident #2 reveals that, by 11:35 a.m. on July 19, no staffperson had initialed the morning self-administration of Carvedilol; the morning self- administration, which was due at 8:00 a.m., should have been completed and initialed well before 11:35 a.m. As for Resident #3, Petitioner failed to prove that a staffperson initialed for observing the self-administration of Risperidone and Tramadol for noon on July 13; the indication on the MOR was that Resident #3 was not present at that time. Two staffpersons had different ways of indicating the absence of the resident, and the surveyor did not understand the manner by which one staffperson indicated absence--i.e., by initialing and then circling the initial. (Additionally, the surveyor's marks on the exhibit sometimes obscures the marking on the MOR placed by staffpersons.) However, Resident #3's MOR discloses no administrations of artificial tears in July, even though her medication was available at the ALF. These two findings are consistent with Count One of the Final Order. On May 26, Staff #3, Staff #4, and Staff #5 did not have the four hours of training required to qualify to observe the self-administration of medications. Petitioner proved that Staff #3 was hired on October 14, 2000, and Staff #4 was hired on August 10, 2009. Petitioner proved only that Staff #3 observed the self-administration of medication. The MORs for the initial survey cover nearly the entire month of May, and they bear only the initials "K" and "M"; "K" appears to be Staff #2, whose name is Kermite Jerome, and "M" appears to be Staff #3. On July 19, Staff #5 and Staff #7 did not have the four hours of training required to qualify to observe the self- administration of medications. Petitioner did not prove a hire date for Staff #7, who was newly hired. Petitioner did not prove that either Staff #5 or Staff #7 observed the self- administration of medication. The MOR's for the followup survey cover nearly three weeks of July, and they bear only the initials "K" and "L"; the "L" is Ms. Nelson. On May 26, Respondent did not have a dated and planned menu posted at least one week in advance. On July 19, Respondent did not have a dated and planned menu posted at least one week in advance. On May 26, Respondent did not maintain a dated, signed contract for Resident #1, nor a signed contract for Resident #3. On July 19, Respondent did not maintain a signed contract for Resident #3. On May 26, Respondent had not submitted a written comprehensive management plan for review and approval by the county emergency management agency. On July 19, Respondent had not submitted a written comprehensive management plan for review and approval by the county emergency management agency. This finding as to July 19 is consistent with Count 3 of the Final Order.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of February, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2013. COPIES FURNISHED: Leonie Nelson L and B Solutions Care, Inc. 567 Northeast 137th Street Miami, Florida 33161 Nelson E. Rodney, Esquire Agency for Health Care Administration Suite 300 8333 Northwest 53rd Street Miami, Florida 33166 Julie Arrendell Qualified Representative 13899 Biscayne Boulevard, Suite 101 North Miami Beach, Florida 33181 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
Findings Of Fact Upon consideration of the evidence presented at the hearing, the following relevant findings of fact are made: The Respondent, Dora Retirement Home, is located at 4727 Brooksdale Drive, Sarasota, Florida. At all times material to this proceeding, Respondent has been licensed by the Agency to operate a ACLF (facility) at 4727 Brooksdale Drive, Sarasota, Florida, housing a maximum of six residents. Idora Rawlings is and has been the owner and operator of the facility since its initial licensure in March, 1990. By letter dated August 12, 1993, the Agency denied Respondent relicensure to operate the facility the license for which was scheduled to expire on August 22, 1993. Respondent is presently operating under a conditional license pending the disposition of this administrative proceeding in accordance with Section 400.417(2), Florida Statutes. On January 29, 1991, the Agency reported the results of its January, 1993, annual survey of the facility and cited the Respondent for several deficiencies. These deficiencies were corrected within the specified time allowed by the Agency. However, some of the same type deficiencies were cited in the January 19, 1993, annual survey that is alleged not to have been corrected in either the March 22, 1993, or the June 11, 1993, follow-up visits or the January 10, 1994, appraisal visit. In January 1993, the Agency performed an annual survey of the facility and reported the results on January 19, 1993. Several deficiencies were cited by the Agency in this annual survey. The Agency provided the Respondent with a specified time within which the alleged deficiencies were to be corrected. It is alleged that some of the deficiencies were not corrected within the specified time allowed by the Agency. Listed below are the Class III deficiencies that are alleged in the administrative complaint as violations of statutes or rules and the findings regarding those deficiencies. For convenience, the alleged deficiencies and the findings of fact concerning those deficiencies are listed in the same alphabetical order {(a) through (bb)} as in the administrative complaint. The facility failed to provided proof that liability insurance was maintained. It is alleged that this deficiency was cited at the January 29, 1991, annual survey, was recited at the January 19, 1993, annual survey and is a repeat deficiency. The Respondent had certificates of insurance for its liability insurance issued on June 18, 1990 and January 30, 1991, for the period of July 27, 1990 - July 27, 1991, and certificates of insurance for liability insurance issued on August 19, 1992, and January 20, 1993, for the period of July 27, 1992 - July 27, 1993. It is unclear whether the Agency requested and was not provided copies of the certificates of insurance at the 1991 and 1993 annual surveys or whether the Agency was just unable to locate copies of the certificates of insurance in the Respondent's files during the 1991 and 1993 annual surveys. In either case, the Respondent had certificates of insurance and the facility was insured during the applicable periods. The Agency failed to establish that a deficiency existed at the 1991 annual survey or the 1993 annual survey or that there was a repeat deficiency. The facility failed to post the last Agency inspection report. It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit. At the time of the annual survey in January 1993, and the March 1993, follow-up visit, Respondent had a copy of the last Agency inspection report (issued April 1991) in a file folder with other facility papers. These papers, including the latest Agency inspection report, were available for inspection by the residents and the public. However, the latest inspection report was not posted separately in a prominent location. The Agency established that a deficiency did exist in this regard. The facility failed to maintain the admission/discharge records in a complete manner. It is alleged that this deficiency was cited at the January 19, 1991, annual survey, was recited at the January 19, 1993, annual survey, was recited at the June 11, 1993, follow-up visit, was recited at the January 19, 1994, appraisal visit and is a repeat deficiency. The Summary of Deficiencies for the January 29, 1991, and January 19, 1993, annual surveys indicate that the deficiencies cited at those surveys were corrected within the specified time allowed by the Agency. The Summary of Deficiency for the follow-up visit of June 11, 1993, does not provide a specified time within which the Agency allows the facility to correct the deficiency cited at the June 11, 1993, follow-up visit. The cited deficiencies concern the unavailability of admission/discharge records, the lack of required resident information in the admission/discharge records that were available and the failure to post admissions. At all times material to this proceeding, Respondent kept a separate register of the admission/discharge of the facility's residents which was available to the Agency for its inspection. Some of the information contained in the current register had been transferred to the current register from the old register. The reason for transferring the information was the new forms furnished by the Agency for this purpose better accommodated the information required by the Agency to be on the forms. In transferring the information from the previous register to the current register certain errors and omissions did occur, along with some of the admissions and discharge dates not being in chronological order. The January 19, 1994, appraisal visit alleges that two of the six residents present in the facility at the time of the January 19, 1994, appraisal visit were not listed in the register. The Agency failed to identify which two of the six residents present were not listed in the register. The names of the six residents present in the facility on December 6, 1993, with no discharge date, were listed in the register. There was no evidence that the Respondent had added any names to the register after the January 19, 1994, appraisal visit. As to the January 29, 1991, and the January 19, 1993, annual surveys and the June 11, 1993, follow-up visit, the Agency failed to establish that Respondent's admission/discharge records were not maintained in a complete manner, notwithstanding the testimony of the Agency's witness to the contrary. While the Respondent's admission/discharge register was somewhat "sloppy", the evidence shows that the register contained the required information. As to the January 19, 1994, appraisal visit, the Agency failed to establish or identify which, if any, of residents present in the facility at the time of the January 19, 1994, appraisal visit were not listed in the register. The Agency failed to establish that a deficiency existed in this regard at the 1991 or 1993, annual survey, the June 11, 1993, follow-up visit or the January 19, 1994, appraisal visit or that there was a repeat deficiency. The facility failed to maintain a record of resident weights at admission and semiannually thereafter. It is alleged that this deficiency was cited at the January 29, 1991, annual survey, recited at the January 19, 1993, annual survey and is a repeat deficiency. Respondent failed to record either the weight or the height of some of the residents admitted before the January 29, 1991, annual survey. However, this deficiency was corrected at or before the March 22, 1991, follow-up visit. There is insufficient evidence to show that Respondent failed to record the weight and height of any resident admitted between the January 29, 1991, annual survey and the January 19, 1993, annual survey, notwithstanding the testimony of the Agency's witnesses to the contrary. The Agency failed to establish or identify which, if any, resident that was admitted to or living in the facility during the applicable times that required or received individual assistance with their activities of daily living (ADL) as defined in Rule 10A-5.0131(2)(c), Florida Administrative Code. Likewise, the Agency failed to establish or identify which, if any, of the residents whose weight Respondent failed to record semiannually were receiving individual assistance with their ADL's. The Agency has failed to establish that a deficiency existed at the January 29, 1991, annual survey or the January 19, 1993, annual survey or that it was a repeat deficiency. The facility did not have a disaster plan and did not have the plan coordinated with the local disaster preparedness authority. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit, was recited at the January 19. 1994, appraisal visit and is a repeat deficiency. The Respondent had a written disaster plan but the plan had not been coordinated with or reviewed by the local disaster preparedness authority at any of the visits by the Agency in January and March, 1993, or January, 1994. Although the local authority was slow to act on these matters, the Respondent failed to act timely or in a responsible manner in initially presenting the plan or making the changes required by the authority. The Agency established that the alleged deficiency existed at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit and still existed at the January 19, 1994, appraisal visit, and it was a repeat deficiency. The facility did not develop written job descriptions for staff who provide personal services. It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit. Although some of the Respondent's staff did not have written job descriptions at the time of the January 19, 1993, annual survey or at the March 22, 1993, follow-up visit, the Agency failed to establish or identify which, if any, of the facility's employees without written job descriptions were providing personal services to the residents during the applicable time or which residents required assistance with personal services. Furthermore, the Agency failed to establish that the staff without any job descriptions at the January 19, 1993, annual survey was the same staff without job descriptions at the January 24, 1993, follow-up visit. The Agency failed to establish that a deficiency existed in this regard. The facility did not maintain required staff documentation and qualifications in the personnel record. It is alleged that this deficiency was cited at the time of the June 11, 1993, follow-up visit and was not corrected at the January 10, 1994, appraisal visit. The Agency failed to advise the facility in the Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected. The facility was basically a one person operation. Idora Rawlings, being the owner and administrator, was usually that person. However, other personnel was hired from time to time. Although there was at least a part-time employee working at the time of the June 11, 1993, follow-up visit or had worked previously, this employee was never identified by the Agency and it was never established that this employee's personnel record did not contain the required staff documentation and qualifications. Other than the administrator, the Agency failed to identify any other part-time or full-time employees that had previously worked or were working at the facility at the time of the June 11, 1993, follow-up visit or at the January 19, 1994, appraisal visit. While the personal records of employees of the facility were sketchy, the Agency failed to establish which of those personnel records failed to meet the required staff documentation and qualifications, and thereby result in a deficiency. The Agency failed to establish that a deficiency existed in this regard. The administrator did not ensure that staff providing assistance with personal hygiene received training in personal hygiene. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, and was not corrected at the March 22, 1993, follow-up visit. As stated above, the facility was a one person operation and the administrator was usually that person. Other than the administrator, the Agency failed to establish or identify which, if any, of the facility's employees were furnishing residents assistance with personal hygiene. Likewise, the Agency failed to establish or identify which, if any, of the facility's employees had not received training in personal hygiene. The Agency failed to establish that a deficiency existed in this regard. The administrator did not ensure that each staff person that comes into contact with potentially infectious materials is trained in infection control procedures for blood and other body fluids. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, and was not corrected at the March 22, 1993, follow-up visit. The Agency failed to establish that any of the facility's resident posed a threat of exposing any staff member to potentially infectious materials. As stated above, the facility was a one person operation and the administrator was usually that person. Other than the administrator, the Agency failed to establish or identify which, if any, of the facility's employees were required by their employment to expose themselves to any potentially infectious material that may be present in the facility. Likewise, other than the administrator, the Agency failed to establish or identify which, if any, of the facility's employees that were required to be trained in infection control procedures for blood and other body fluids had not been trained. The Agency failed to establish that a deficiency existed in this regard. Each person admitted to the facility was not covered by a contract executed at admission or prior thereto. It is alleged that this deficiency was cited at the January 19, 1991, annual survey, was recited at the January 19, 1993, annual survey and is a repeat deficiency. The Agency failed to establish and identify which, if any, of the residents that did not have a properly executed contract prior to, or at the time of admission. The Agency's witnesses could not identify any resident by name that did not have a properly executed contract prior to, or at the time of admission. The Agency failed to establish that a deficiency existed in this regard at any time or that there was a repeat deficiency. Each resident had not been examined by a health care provider within sixty (60) days prior to or thirty (30) days after admission. It is alleged that this deficiency was cited in the January 19, 1991, annual survey, recited at the January 19, 1993, annual survey and is a repeat deficiency. The Health Assessment for Adult Congregate Living Facilities, HRS-AA Form 1823 (health assessment) is the form completed by the health care provider upon completion of the medical examination and forwarded to the ACLF facility to assist the administrator in determining the appropriateness of admission. Lawrence C. Huffman admitted to the facility on December 23, 1990, had an undated health assessment. Martin C. Huber admitted to the facility on May 6, 1990, had a health assessment dated December 11, 1990, completed approximately seven months after admission. Pearl Rauchat admitted to the facility on October 9, 1990 had a health assessment dated November 19, 1990, completed 41 days after admission. This deficiency was corrected on March 7, 1991, well within the specified time for correction set by the Agency. Fred Dutt admitted July 10, 1992 had a health assessment dated August 14, 1992 - December 10, 1992, completed 35 days after admission. The Agency's presented no evidence of any other resident whose health assessment was untimely at the January 19, 1993, annual survey or at any other time.. The facility is required to rely on the health care provider to timely examine the resident, and to prepare and file the health assessment. Dutt's health assessment being only five days over due does not constitute a deficiency. Although the Agency established a deficiency in January, 1991, it was timely corrected, and there was no deficiency established in January, 1993. Therefore, there is no repeat deficiency. The administrator did not ensure that the criteria for continued residency was followed. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency. The Agency failed to establish or identify which, if any, of the residents where the Respondent failed to follow the criteria for continued residency, notwithstanding the testimony of the Agency's witnesses. The Agency failed to establish that a deficiency existed in this regard or that there was a repeat deficiency. The facility did not insure that staff knew how to implement the disaster plan. It is alleged that this deficiency was cited at the January 29, 1991, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency. Other than the administrator, the Agency failed to establish that there were other employees prior to or at the time of the January 29, 1991, survey or that the Respondent had failed to insure that the staff, if there were any, knew how to implement the disaster plan. Although there may have been staff, other than the administrator, working at the facility between the January 29, 1991, annual survey and the January 19, 1994, appraisal visit, the Agency failed to establish or identify which, if any, of the staff did not know how to implement the disaster plan. The Agency failed to establish that a deficiency existed in this regard or that there was a repeat deficiency. The administrator did not ensure that the staff certified in first aid are present in the facility at all times. It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit. The Agency failed to establish or identify which, if any, of the facility's employees that were not certified in first aid were left in charge of the facility. During the applicable time, the administrator and a part-time employee were the only employees of the facility. Both the administrator and the part- time employee had been certified in first aid. Either the administrator, the part-time employee or both were always present at the facility. The Agency failed to establish that a deficiency existed in this regard. The administrator did not ensure that the staff have documentation of freedom from communicable diseases. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit or the January 19, 1994, appraisal visit. The Agency failed to establish or identify which, if any, of the staff did not have documentation of freedom from communicable diseases. During the applicable period there was only one part-time employee and the administrator working at the facility. The Agency failed to establish that either the part- time employee or the administrator did not have documentation of freedom from communicable diseases. The Agency failed to establish that a deficiency existed in this regard. The administrator had not designated in writing a staff person to be in charge during the temporary absence of the administrator. It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit. During 1993, Evelyn Rhoden was designated in writing by the administrator as the staff member to be in charge of the facility in the administrator's absence. This authorization was posted on the bulletin board near the telephone in the small dining room by the kitchen. During 1994, Chistine St. Amand was designated in writing by the administrator as the staff member to be in charge of the facility in the administrator's absence. This authorization was posted on the same bulletin board as the 1993 written authorization. The authorizations were available to the Agency's surveyors during the applicable surveys and follow-ups. The Agency failed to establish that a deficiency existed in this regard. The administrator did not ensure that the staff supervise the self-administered medications as specified by procedures spelled out in the regulations. It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and was not corrected at the time of the January 19, 1994, appraisal visit. The Agency failed to advise the facility in the June 11, 1993, Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected. The Agency failed to establish or identify which, if any, of the facility's residents required supervision of self-administered medication and thereby require the facility to document staff supervision of self- administered medication. The Agency failed to establish that a deficiency existed in this regard. The administrator did not ensure that the staff restricted the assistance with self-administered medication process as allowed in the regulations. It is alleged that this deficiency was cited at the January 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit, was recited at the January 19, 1994, appraisal visit and is a repeat deficiency. It appears that this is the same deficiency as listed in 4(q) above. However, in any event the Agency has failed to establish or identify which, if any, of the facility's staff did not restrict the assistance with the self- administered medication process as allowed by the regulations. The Agency failed to establish that a deficiency existed in this regard or that there was a repeat deficiency. The administrator did not hire or ensure that only licensed staff administered medications. It is alleged that this deficiency was cited in the January 19, 1993, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency. As to the deficiency cited at the January 19, 1993, annual survey, the Agency failed to establish the identity of patient #5 whose health assessment indicated she needed her medications administered or that staff was administering medication to patient #5. As to the deficiency cited at the January 19, 1994, appraisal visit, the administrator who is not licensed to administer medication admitted to popping the medication out of individual bubble packs into individual souffle cups for several of the residents who would then take the medication or would place the souffle cups on a cabinet shelf in front of the resident's name on the shelf to be taken at a later time - such as lunchtime. The Agency failed to establish or identify which, if any, of these residents required their medication to be administered as oppose to those who could self-administer medication, with or without supervision. There was insufficient evidence to show that the administrator was administering medication. The Agency failed to established that a deficiency existed in this regard at the January 19, 1993, annual survey or the January 19, 1994, appraisal visit. The administrator did not ensure that no prescription drug is kept by the facility unless it had been legally dispensed and labeled for the resident for whom it was prescribed. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was recited at the June 11, 1993, follow-up visit, not corrected at the January 19, 1994, appraisal visit and is a repeat deficiency. As to the deficiency cited at the January 19, 1993, annual survey, the Agency has established that a month's supply of vitamins for Viola Shupp had been placed in a "daily pill container" by the resident's daughter. This "daily pill container" was placed in the same plastic box as prescription medication containers in the cabinet where the Respondent kept medication. The prescription medication containers were properly labeled with the required information. This deficiency was corrected within the time specified by the Agency for correction. As to the deficiency cited at the June 11, 1993, follow-up visit, the Agency establish that the centrally stored medication was not locked up. The Respondent admitted that the centrally stored medication included such items as vitamins, merthiolate, dramamine, Shaklee alfalfa, ointments, creams, tinctures, and two prescription medications (Synthroid, 0.5mg and Cipro) in containers with prescription labels with the required information for resident Henry Shadle. Other than the Synthroid and Cipro, none of the other containers had prescription labels. However, there was no evidence that any of the other medications (vitamins, ointments, merthiolate, etc.) were prescribed medications. None of the other medications (vitamins, ointments, merthiolate, etc.) were labeled to identify the resident owning the medication. The Agency did not advise the facility in the June 11, 1993, Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected. As to the deficiency cited at the January 19, 1994, appraisal visit, the Agency has shown that five souffle cups of medication without covers or prescription labels were on a shelf in an unlocked cabinet. The souffle cups had been placed on a shelf by the patient shortly before time to take the medication after the administrator has assisted the residents in getting the medication out of bubble packs as set forth in 4(s) above. The Agency established that (1) a deficiency existed at the January 19, 1993, annual survey but was timely corrected, (2) a similar deficiency existed at the follow-up visit of June 11, 1993 and, (1) a similar deficiency existed at the annual survey of January 19, 1994. The Agency has established a repeat deficiency. The administrator did not ensure that no person other than the pharmacist shall alter a prescription label, and transfer medications from one storage container to another. Medication orders changed by the physician must be re-labeled by the pharmacist. The administrator did not make every effort to ensure that residents whose medications are supervised by the facility are refilled in a timely manner. It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and was not corrected at the January 19, 1994, appraisal visit. The Agency failed to advise the facility in the Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected. There was no evidence that any prescription label on any medication container for any resident had been altered in any fashion at any time. There were some plastic baggies containing non-prescription medication or the individual container of the non-prescription medication that had written instructions or the name of the resident on them. During the January 19, 1994, appraisal visit a plastic box was found to contain several prescription medications that were in properly labeled containers. However, there was a "daily pill container" in the plastic box which contained a month's supply of vitamins. The vitamins in the "daily pill container" had been placed there by the resident's daughter. The "daily pill container", along with the individual prescription medication containers had been placed in the plastic box and placed in the facility's medication cabinet by the resident's daughter. The Agency failed to establish or identify any medication order changed by a physician that had not been properly rebelled by the pharmacist or had been rebelled by an employee or the administrator of the facility Likewise, the Agency failed to establish or identify any resident whose medication was supervised by the facility that the administrator failed to ensure that that resident's medications were not refilled in a timely manner. The Agency failed to establish that a deficiency in this regard existed at the June 11, 1993, follow-up visit or January 19, 1994, appraisal visit. The administrator did not dispose of medications as allowed by regulations. It is alleged that this deficiency was cited in the January 19, 1993, annual survey and recited again at the June 11, 1993, follow-up visit. At the January 19, 1993, annual survey the Agency surveyor found a bottle of Tylenol that was alleged to belong to a resident that had been discharged from the facility longer than 15 days. The Agency failed to establish or identify the resident that the Tylenol belonged to or when that resident was discharged. However, the facility had disposed of the Tylenol by the March 22, 1993, follow-up visit and the Agency considered the matter corrected within the specified time the facility was allowed to correct the deficiency. As to the follow-up visit of June 11, 1993 concerning this deficiency, the Agency failed to establish or identify any resident that had been discharged from the facility whose medication had not been disposed of, or disposed of improperly by the facility. The Agency failed to establish that a deficiency existed at the June 11, 1993, follow-up visit and thereby establish a repeat deficiency. The administrator did not ensure that the facility had no stock supply of over-the-counter (OTC) medications, OTC medications are labeled as required, and supervised as ordered by the physician. The Agency failed to advised the facility in the Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected. It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and was not corrected at the January 19, 1994, appraisal visit. The Agency established that the Respondent did keep a stock supply of OTC medications in that such items as Tylenol, milk of magnesia, vaseline, Mylanta, Easy Lax, and other assorted OTC medications were kept in the facility without any resident's name on the medication. This deficiency still existed at the January 19, 1994, appraisal visit. Likewise, the Agency established that OTC medications were kept for residents with the resident's name on the medication in with other residents' OTC medication stored in the facility's cabinet. However, the Agency failed to establish that any of these OTC medications were not labeled as ordered by the physician or that the manufacturer's label with directions for use were not kept with the OTC medications or that the supervision of the OTC medication was not as order by the physician where there were such orders. The Agency established that a deficiency in this regard existed at the June 11, 1993, follow-up visit and was not corrected at the time of the January 19, 1994, appraisal visit. The facility did not employ a Consultant Pharmacist within fourteen (14) days of the documentation of an uncorrected Class III medication violation, and did not retain the Pharmacist for on-site quarterly updates until the department verified after written notification by the Administrator and Consultant Pharmacist the correction of the medication violations. It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and recited at the January 19, 1994, appraisal visit. By letter dated June 17, 1993, the Agency advised the administrator that "[b]ecause of the uncorrected and new deficiencies related to Medications according to 10A5.034 of the administrative code you are now required to employ a pharmacist consultant. The initial on site pharmacist consultant visit must take place within 14 working days and quarterly thereafter." The administrator hired a pharmacist consultant who visited the facility on July 6, 1993, this was within 14 working days allowed by the Agency. However, the consultant pharmacist was not retained after July 6, 1993. The administrator did not submit the Consultant pharmacist's quarterly corrective action plan to the Agency. After the January 19, 1994, appraisal visit, the administrator again employed a consultant pharmacist. The Agency established that a deficiency in this regard existed at the June 11, 1993, follow-up visit and was not corrected at the time of the January 1994, appraisal visit. The administrator did not ensure that opportunities are provided for social and leisure activities by planned activities. It is alleged that this deficiency was cited in the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit and was recited at the January 19, 1994, appraisal visit. Contrary to the testimony of the Agency's witnesses, the administrator did provide the residents opportunities for social and leisure activities by planning activities. However, the administrator was limited in what could be offered in that the facility was mainly a one person operation, and the age and physical condition of the residents limited their participation to certain social and leisure activities. Also, contrary to the testimony of the Agency's witnesses, the administrator did prepare, keep and post an activities calendar - albeit not an elaborate or sophisticated one. The Agency failed to establish that a deficiency in this regard existed at the January 19, 1993, annual survey or the January 19, 1994, appraisal visit. The administrator did not develop and implement or arrange for an ongoing activities program at a minimum ten (10) hours a week, and did not ensure resident participation in the planning activities. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, and June 11, 1993, follow-up visits and was recited at the January 19, 1994, appraisal visit. The Agency failed to establish that the activities planned by the administrator for the residents as set out in 4(y) above did not total a minimum of 10 hours a week. The administrator had developed and implemented or arranged for an ongoing activities program and provided for resident participation in the planning activities. While the administrator's program was not elaborate or sophisticated, it met the requirements for an ACLF with a resident capacity such as Respondent's facility. (aa) The administrator did not ensure that monthly fire drills were documented. It is alleged that this deficiency was cited at the January 19, 1991, annual survey, was recited at the January 19, 1993, was not corrected at the March 22, 1993, follow-up visit, was recited at the January 19, 1994, appraisal visit and is a repeat deficiency. At the January 19, 1993, annual survey there was no documentation of monthly fire drills for the past year. At the January 19, 1994, appraisal visit, it was established that although monthly fire drills from April, 1993 through December, 1993, had been documented, the documentation did not contain the required information. The dates of the fire drills were provided. However, information specified by regulation such as time required to evacuate, location of simulated fire, fire escape paths used and notation of residents who resisted or failed to participate was not provided. The Agency established that a deficiency in this regard existed at the times alleged and is a repeat deficiency. (bb) The administrator did not maintain documentation available regarding the testing and operation of the smoke detectors. It is alleged that this deficiency was cited in the January 19, 1993, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency. As to the deficiency cited at the January 19, 1993, annual survey, the monthly testing of smoke detectors was not documented. Smoke detectors in room #3 and the hallway were inoperable when tested by the surveyor at the January 19, 1993, annual survey. This deficiency was corrected within the time specified by the Agency. At the time of the January 19, 1994, appraisal visit the Respondent had failed to document the monthly testing of smoke detectors. The Agency established that a deficiency in this regard existed at the times alleged and is a repeat deficiency. By letter dated January 12, 1994, the Agency advised the administrator that a moratorium on admissions to the facility had been imposed effective January 10, 1994, in accordance with Section 400.415, Florida Statutes. At the time the moratorium was imposed January 10, 1994, the resident census was six. The letter of January 12, 1994, advised the administrator of the right to request a formal administrative hearing on the issue of the moratorium. The administrator made no request for a formal administrative hearing. Sometime in the latter part of June, 1994, a resident of the facility was discharged bringing the resident census to five. Shortly thereafter, on July 9, 1994, the facility admitted a new resident. Upon being advised by the Agency that the admission was in violation of the moratorium, the facility discharged the resident on August 31, 1994. It was the administrator's understanding that the moratorium was on any admissions above the resident census of six. By letter dated August 23, 1994, the Agency advised the administrator that the January 12, 1994, letter was being supplemented and amended. Among other matters, the letter advised the administrator that the moratorium would run concurrently with the facility's licensure denial and remain in effect until the denial issue was resolved. The letter also advised the administrator of the right to a formal administrative hearing. The administrator made no request for an administrative hearing. On September 9, 1994, a Final Order was entered by the Agency imposing a moratorium effective January 10, 1994, that would remain in effect until no longer necessary, affirming the Agency's action set forth in the January 12, 1994, letter. On October 12, 1994, a Final Order was entered by the Agency imposing a moratorium effective January 10, 1994, that would run concurrently with the licensure denial and remain in effect until the denial issue was resolved, affirming the Agency's action set forth in the August 23, 1994, letter.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and considered the factors set forth in Section 400.419(2), Florida Statutes, concerning the imposition of a penalty, it is recommended that the Agency for Health Care Administration enter a Final Order finding the Respondent to have committed the violations set forth in paragraphs 3(b), 3(e), 3(t), 3(w), 3(x), 3(aa) and 3(bb) of the Administrative Complaint and for such violations shall pay an administrative fine of $100, $200, $300, $250, $250, $250, and $250, respectively, for a total administrative fine of $1,600, to be paid on terms the Agency deems appropriate. It is further recommended that the Agency grant the Respondent's application for renewal of its license with conditions the Agency deems appropriate, including, at the minimum, that the moratorium remain in place until such time as the Respondent employs a consultant pharmacist, on staff or by contract, and corrects the medication violations as found in this Recommended Order to the satisfaction of the Agency. RECOMMENDED this 27th day February, 1995, in Tallahassee, Florida WILLIAM R. CAVE 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 27th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5515 AND 94-4101 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in these cases. Petitioner's Proposed Findings of Fact: Proposed finding of fact 1 is adopted in substance as modified in Finding of Fact 1. The introductory portion of Proposed finding of fact 2 is adopted in substance as modified in Findings of Fact 2 and 3. Proposed findings of fact 2(a), 2(c), 2(d), 2(f) through 2(r), 2(t), 2(u), and 2(x) are rejected as not being supported by the evidence in the record. Proposed findings 2(b), 2(e), 2(s), 2(v), 2(w), 2(y)and 2(z) are adopted in substance as modified in Findings of Fact 4(b), 4(e), 4(t), 4(w), 4(x), 4(aa) and 4(bb), respectively. Proposed finding of fact 3 is adopted in sustance as modified in Finding of Fact 4. Proposed finding of fact 4 is adopted in substance as modified in Findings of Fact 5, 6, 8-10. Proposed finding of fact 5 is adopted in substance as modified in Finding of Fact 7. Proposed finding of fact 6 is adopted in substance as modified in Finding of Fact 4(t). Proposed finding of fact 7 is covered in the Preliminary Statement. Respondent's Proposed Findings of Fact: 1. Proposed finding of fact 1 is adopted in substance as modified in Finding of Fact 1. The balance of Respondent's proposed findings of fact are intermingled with cited rules and statutes, the allegations and argument. Some paragraphs are numbered and some paragraphs are unnumbered. Where it is possible, a response has been made to what might be considered proposed findings of fact. However, the proposed finding of fact may be one of many unnumbered paragraphs under a single number. 2. Proposed findings of fact 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 21, 23, 24, 25, 37 and 40 are adopted in substance as modified in Findings of Fact 4(c), 4(a), 4(d), 4(j), 4(b), 4(l), 4(m), 4(k), 4(n), 4(aa), 4(x)(z), 4(q), 4(n), 4(s), 4(u), 4(v), 4(g), 4(p), 4(o) and 4(u), respectively 3. Proposed findings of fact 2, 4, 26 - 30, 32, 36, 39 and 43 - 48 are either not material or relevant, or unnecessary, or subordinate, or cumulative. 4. Proposed findings of fact 16, 20, 22, 28, 31, 33, 34, 35, 38, 41 and 42 are rejected as not being supported by the evidence in the record. COPIES FURNISHED: Sam Power, Agency Clerk Agency For Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303 Tom Wallace, Assistant Director Agency For Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303 Linda Parkinson, Esquire Agency For Health Care Administration Division of Health Quality Assurance 400 West Robinson Street, Suite S-309 Orlando, Florida 32801 William Witt, Esquire 4625 East Bay Drive, Suite 210 Clearwater, Florida 34624
